The U.S. Supreme Court has appointed a new expert judge, or special master, to consider Florida’s lawsuit against Georgia over consumption from the Apalachicola-Chattahoochee-Flint river basin. Florida, saying it will aid the Gulf Coast’s once dominant oyster population, is seeking a cap on Georgia’s water use at roughly 1992 levels, when Atlanta was home to roughly one-half as many people as it is today. BRANT SANDERLIN/BSANDERLIN@AJC.COM

New judge means a restart in Georgia-Florida legal fight over water

New Mexico-based lawyers who know Judge Paul Kelly or have argued cases before him say he holds a conservative legal bent, yet has a reputation as being fair and thorough. That has left stakeholders in the pricey legal fight unclear about whom Kelly will be more sympathetic toward as Florida prepares to argue in a second round of proceedings that Georgia’s water usage should be capped.

The dispute over water from the Chattahoochee and Flint rivers is more complex than one state against another state. (Erica A. Hernandez/AJC)
Video: www.accessatlanta.com

Justices earlier this month tapped Kelly, a Santa Fe-based senior judge on the 10th U.S. Circuit Court of Appeals, to be the new expert adjudicator known as a “special master” in the 5-year-old case. In a 5-4 decision this June, justices ordered that a special master re-examine the case and recommend whether the water in the Apalachicola-Chattahoochee-Flint river basin, which originates near Lake Lanier and flows south along the Alabama border to the Florida Panhandle, can be “equally apportioned” between the two parties.

Ralph Lancaster, the case’s first expert judge, had urged the justices to dismiss Florida’s case on largely technical grounds. But the court rebuffed his recommendation and directed the next special master to focus on five specific questions, including whether Florida could prove that limiting Georgia’s water use could lead to substantial additional water flowing into the Apalachicola Bay.

A 78-year-old former GOP state legislator known for his fondness of bow ties, Kelly will now take over the case. Justices have granted him broad leeway to summon witnesses, issue subpoenas and take new evidence and “such as he may deem it necessary to call for.”

Kelly, who was appointed to the federal bench by President George H.W. Bush, does not have a deep background in water law. But peers from New Mexico’s tight-knit legal community say he’s a quick study.

“He tends to walk into the courtroom prepared,” said Andrew Schultz, an Albuquerque-based lawyer who has argued several cases in front of Kelly. “He is a pretty demanding judge in terms of his standard of what he expects from the lawyers who appear before him.”

In many of his legal opinions, Kelly has been wary of giving the federal government too much power.

But multiple New Mexico lawyers familiar with Kelly’s work, including two who said they held differing political views, said he’s not a naked partisan and always gave them a fair hearing. The complicated nature of the Florida-Georgia case, several said, makes most ideological arguments moot anyway.

“This is not a case in which a judge’s prior history, political philosophy or legal jurisprudence is likely to have an impact on the way he views the facts of this case,” said Bruce Brown, an Atlanta lawyer who helped represent the state of Georgia in the Southeast water wars from 2000 to 2013. “It’s such a massively difficult case that anyone approaching it is going to have to learn the facts of this case, and what they might have learned in prior cases isn’t going to matter.”

The offices of Kelly and Lancaster did not respond to requests for comment.

Setting the schedule

Kelly in the weeks ahead is expected to review the case and then lay out a preliminary schedule, location of the proceedings and conditions for moving forward.

Lancaster sifted through some 7.2 million pages of documents, 130 subpoenas, 30 expert reports and 100 depositions in the case’s first round, Justice Clarence Thomas noted in June.

The next round of the proceedings is expected to take upwards of a year, if not longer. John Draper, a Santa Fe water rights lawyer who knows Kelly socially, said one of the biggest factors that will best determine the timeline is whether Kelly opens up the case to new evidence.

The Supreme Court justices, Draper said, have made “clear they expect to have a full record.”

“When you’re making a decision between two sovereign states you want to make sure that you do it right,” he said.

Georgia has already spent tens of millions on the Southeastern water wars, which have been raging for the better part of three decades. Alabama has also been involved in some of the litigation, which also includes the Alabama-Coosa-Tallapoosa river basin, but it sat out this round. Since Gov. Nathan Deal took office in 2011, Georgia taxpayers have shouldered some $47 million for the water fight in the Apalachicola-Chattahoochee-Flint basin.

Roughly $240,000 of that has gone toward paying Lancaster’s fees, since he worked for a private law firm, according to filings on the Supreme Court’s website. (Florida paid the same amount.)

The justices did not give a reason for dismissing Lancaster, who had served as the cases’s special master since 2014.

Kelly is not expected to charge similar fees for his work since he receives a federal salary as a circuit judge.

While water disputes are common in the more arid West and Southwest, they are relatively rare east of the Mississippi River.

Florida has asked the court to cap Georgia’s water use at roughly 1992 levels, when Atlanta was home to roughly one-half as many people as it is today. The Sunshine State said more fresh water will aid the Gulf Coast’s once dominant oyster population.

Georgia has argued that limiting its water use will cripple the state’s economy while leading to negligible benefits downstream because of the complicated way the federal government operates the country’s dams.

“Florida now has a chance to win, but it will be incumbent upon them to show what it is that could be done that will make the situation better off, and you must conclude that the lack of water is the cause of the problem,” said Chuck DuMars, a New Mexico water rights attorney who worked on Georgia’s legal team early in the water fight. “He’ll put both sides to the burden of proof.”

Stay on top of what’s happening in Georgia government and politics at ajc.com/politics.

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