WATER WARS: SUPREME COURT ORIGINAL JURISDICTION IN INTERSTATE WATER DISPUTES I. INTRODUCTION

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1 WATER WARS: SUPREME COURT ORIGINAL JURISDICTION IN INTERSTATE WATER DISPUTES Kristin A. Linsley* I. INTRODUCTION The Supreme Court s power to exercise original jurisdiction over disputes between States puts the Court in a unique role that differs significantly from its everyday appellate posture. Under the federalist structure of our Constitution whereby individual States gave up part of their sovereignty to join the Union, but retained other sovereign rights and characteristics there was a need for a tribunal that could resolve disputes between those subordinate sovereigns, and the Court was designated to fill the role. The Court s jurisprudence for interstate disputes has evolved over the years, but perhaps nowhere as significantly as for disputes between States over interstate rivers and other waters. These disputes often call for each State to act as parens patriae for its citizens and sometimes to protect their own proprietary interests, and broader national interests also may be implicated. As a result, it is not uncommon for the United States to involve itself in the cases: as a party, as an amicus curiae, as a witness (such as through the Army Corps of Engineers), or as an advisor to the Court it calls for the federal government s views. 1 Because often there is little guiding precedent for the Court to follow, such as where the competing States have no binding Compact, interstate water cases may trigger some of the most expansive exercises of the Court s lawmaking powers. This article traces some critical steps in the history of the Court s original jurisdiction, particular as they bear upon interstate water disputes. It focuses on evolving role of the Special Master an individual that the Court generally appoints for each separate case to assist the Court in moving the case forward. The unique challenges presented by water disputes, coupled with the inherent limitations on the Court s own abilities to administer any original court docket on a daily basis, have resulted in Special Masters assuming an outsized role in such interstate water *The author is a partner in the San Francisco office of Gibson, Dunn & Crutcher LLP. While at a different firm, she served as a Special Master in South Carolina v. North Carolina, Original No. 138, a dispute between two states over the allocation of the waters of the Catawba River. Portions of this article cover the same ground as an article previously published by the author, see Kristin A. Linsley, Original Intent: Understanding the Supreme Court s Original Jurisdiction in Controversies Between States, 18 J. APPELLATE PRACTICE & PROCESS 101 (SPRING 2017) 1. The United States may participate in original cases to represent its own sovereign interests. See, e.g., Arizona v. California, 547 U.S. 150 (2006); Nebraska v. Wyoming, 515 U.S. 1, 4 (1995). It also may participate as an intervenor, see Texas v. Louisiana, 414 U.S (1973) (mem.), or as an amicus curiae, see South Carolina v. North Carolina, 558 U.S. 256 (2010).

2 disputes, which often require an assessment of extensive factual, historical, scientific, and technical data within a legal construct that provides few guiding principles. II. ORIGINS OF THE COURT S ORIGINAL JURISDICTION The Court s original jurisdiction is rooted in Article III, Section 2 of the Constitution, which establishes the categories of cases to which the judicial Power of the United States extends, including Controversies between two or more States, and provides that [i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme court shall have original jurisdiction. 2 The term original jurisdiction means that the Court has the power to hear and decide a lawsuit in the first instance in other words, to act as a trial court as distinguished from the appellate power to review the judgment of another court that has already heard the lawsuit in the first instance. 3 When the Constitution was ratified, it was thought essential to provide a forum of sufficient dignity, power, and neutrality to serve as a dispute resolution mechanism for States that agreed to give up some of their sovereignty to join the federal union. Previously, the States were separate sovereigns, and could resort to customary international law means of resolving disputes, such as by war or negotiation. 4 The Constitution stripped them of those remedies, declaring that [n]o State shall enter into any Treaty, Alliance, or Confederation, and that [n]o State shall, without the Consent of Congress, enter into any Agreement or Compact with another State, or engage in War. 5 Because the States gave up their principal means of resolving disputes, it was essential that the Constitution provide a forum that would not involve the courts of either involved State and that would reflect the dignity and sovereignty of each such State. 6 Article III delegated this role to the Supreme Court, as a national tribunal to match the dignity of the parties to the status of the court 7 and serve as a substitute for the diplomatic settlement of controversies between sovereigns and a possible resort to force. 8 Article III not only creates the Court s original jurisdiction, but constrains Congress s power to alter that jurisdiction. Section 2 limits its grant of the Court s appellate Jurisdiction, deeming it to be subject to such Exceptions, and under such Regulations as the Congress shall make. 9 The original jurisdiction clause contains no such limitation, stating that the jurisdiction shall extend to all Cases in the specified categories. 10 Based on this distinction, the Court has 2. U.S. CONST. art. III, WILLIAM. H. REHNQUIST, THE SUPREME COURT 31 (2001); see also THE FEDERALIST NO. 81 at 551 (Hamilton) (J.E. Cooke ed., 1961). 4. See, e.g., Georgia v. Pennsylvania R.R., 324 U.S. 439, 450 (1945). 5. U.S. CONST. art. I, See THE FEDERALIST NO. 80 (Hamilton), note 3, supra, at 538 (interstate disputes should not be decided by the courts of a party state because no man ought certainly to be a judge in his own cause ); THE FEDERALIST NO. 81, note 3, supra, at 548 (it would ill suit [the] dignity [of the states] to be turned over to an inferior tribunal ). See also United States v. Texas, 143 U.S. 621, 625 (1862). As the Court noted in Rhode Island v. Massachusetts, an aggrieved State, [b]ound hand and foot by the prohibitions of the [C]onstitution can neither treat, agree, or fight with its adversary, without the consent of [C]ongress. 37 U.S. (12 Pet.) 657, 726 (1838). 7. California v. Arizona, 440 U.S. 59, (1979). 8. Kansas v. Nebraska, 574 U.S., 135 S. Ct. 1042, 1052 (2015). 9. U.S. CONST. art. III, 2, cl. 2. This clause has long been read to allow Congress to limit and define the Court s appellate jurisdiction. See THE FEDERALIST NO. 81, supra note 5, at 552; The Francis Wright, 105 U.S. 381, 386 (1881); Ex Parte McCardle, 74 U.S. 506, (1869). 10. U.S. CONST. art. III, 2, cl. 2.

3 long held that its original jurisdiction is self-executing and unassailable by Congress 11 such that in all cases where original jurisdiction is given by the Constitution, the Court has authority to exercise it without any further act of Congress 12 Although Congress may not alter the Court s original jurisdiction, it may make aspects of that jurisdiction concurrent with the lower courts. 13 In fact, Congress has done so since the Judiciary Act of 1789, where it provided that the Court would have exclusive and original jurisdiction over all controversies of a civil nature, where a state is a party and over any actions or proceedings against ambassadors or foreign officials and original but nonexclusive jurisdiction over controversies between a state and citizens of another state or actions by ambassadors or foreign officials. 14 The current version further limits the Court s exclusive original jurisdiction to all controversies between two or more states. 15 Thus, while disputes between States may be resolved only in the Supreme Court, all other disputes listed in the original jurisdiction clause of Article III may also be heard by the lower courts. 16 III. PROCESS FOR ORIGINAL JURISDICTION CASES Not surprisingly, the Court s procedures for original jurisdiction cases differ substantially from those applicable to its appellate docket. In original jurisdiction cases, the Court sits as both a trial court and a court of last resort an unusual posture for a tribunal that, in its other work, hears only appellate matters that it selects for its docket after two rounds of lower court proceedings. The Court takes its constitutional role in original jurisdiction cases very seriously, and its processes and procedures reflect many of the concerns that motivated the Framers to create that role. An original jurisdiction case begins with the filing of an application for leave to file a bill of complaint under Supreme Court Rule 17(3) a requirement that applies fully to disputes between States. 17 Unlike in an ordinary civil case in the federal district courts, where a plaintiff need only file its complaint and pay the filing fee, a State seeking to invoke the Court s original jurisdiction must affirmatively show that the controversy is worthy of the Court s attention. 18 In other words, even though the Court s jurisdiction over controversies between States is exclusive, the Court may decline jurisdiction in a case that is not sufficiently important to warrant its attention. 19 The defendant State, or any other entity named in the proposed bill of complaint, may oppose the filing. 20 The United States, as amicus curiae, also may weigh in at the filing stage and 11. Chisolm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)); see also California v. Arizona, 440 U.S. at 65; accord Florida v. Georgia, 58 U.S. (17 How.) 478, 492 (1854). 12. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861). 13. See, e.g., Ames v. Kansas, 111 U.S. 449, 469 (1884). See generally Paul M. Bator, Paul J. Mishkin, David L. Shapiro & Herbert M. Wechsler, HART & WECHSLER S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (2d ed. 1973). 14. An Act to Establish the Judicial Courts of the United States, 1 Stat. 73, 13 (Sept. 24, 1789) U.S.C. 1251(a). The Court has held on multiple occasions that these statutory limitations do not violate Article III. See, e.g., Bӧrs v. Preston, 111 U.S. 252, 260 (1884); Ames, 111 U.S. at U.S.C. 1251(b). 17. SUP. CT. R. 17(3). 18. In Louisiana v. Texas, 176 U.S. 1, 15 (1900), the Court explained that the original jurisdiction is of so delicate and grave a character that it was not contemplated that it would be exercised save when the necessity was absolute. 19. The Court consistently has stated that its original jurisdiction should be exercised only sparingly, Mississippi v. Louisiana, 506 U.S. 73, 76 (1992), and has interpreted both Article III and the operative statute as according the Court substantial discretion to make case-by-case judgments as to the practical necessity of an original forum in this Court, Texas v. New Mexico, 462 U.S. 554, 570 (1983), so that original jurisdiction is obligatory only in appropriate cases. Illinois v. City of Milwaukee, 406 U.S. 91, 93 (1972). See generally Mississippi v. Louisiana, 506 U.S. at SUP. CT. R. 17(5).

4 advise the Court whether, in its view, the case should be accepted. 21 In deciding whether to grant leave, the Court will consider whether the complaining State has shown a direct interest of its own, as opposed to merely seeking recovery for the benefit of individuals who are the real parties in interest, 22 and whether the controversy is of such a serious nature that the Court should exercise its extraordinary power under the Constitution to control the conduct of one [sovereign] state at the suit of another. 23 The Court may deny leave where the requisite seriousness and dignity of the claim is lacking. 24 It may consider whether the issue can appropriately be litigated in an alternative forum, 25 such as a federal district court, 26 but even when the parties lack access to another forum, the Court still may deny leave. 27 When the Court deems a controversy between States to present the requisite magnitude and seriousness for an exercise of original jurisdiction, it still must determine how the case will be managed at the pre-trial and trial stage. The Court is not well situated to engage in the day-to-day activities of a trial court, such as presiding over discovery disputes, hearing live testimony, and making findings of fact. For these reasons, the Court typically delegates the initial management of an original jurisdiction case, including the development of the factual record and initial findings of fact and law, to a Special Master, 28 who is appointed by a formal order of the Court. After collecting evidence and examining the applicable law, the Special Master prepares and submits a report of findings, conclusions, and recommendations to the Court for de novo review. 29 Any party file may exceptions to the report, 30 and the Court may sustain or overrule the exceptions and either reject or adopt the report in whole or in part. The Court also may remand the case to the Special Master to take additional evidence. 31 The Special Master occupies a unique role within the federal judicial system. During the preparation of the case for the Court s review what might be called the trial court phase the Special Master most resembles a district court judge. The Special Master is granted certain judicial powers such as to fix the time and conditions for the filing of pleadings, to direct proceedings, summon witnesses, and issue subpoenas, and to entertain motions and preside over trials. 32 Under the Court s authority, the Special Master hears evidence, develops the case record, and issues one or more formal reports to the Court, normally with proposed findings of fact and conclusions of law for the Court to consider SUP. CT. R. 37(4). 22. Kansas v. Colorado, 533 U.S. 1, 8 9 (2001). 23. North Dakota v. Minnesota, 263 U.S. 365, 374 (1923). 24. Mississippi v. Louisiana, 506 U.S. at 76 (quoting Illinois v. Milwaukee, 406 U.S. at 93); Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 495 (1971); Massachusetts v. Missouri, 308 U.S. 1, (1939); see also Vincent L. McKusick, Discretionary Gatekeeping: The Supreme Court s Management of Its Original jurisdiction Docket Since 1961, 45 ME. L. REV. 185, 190 (1993). As the Court has explained, [t]he model case for invocation of this Court s original jurisdiction is a dispute between States of such seriousness that it would amount to casus belli if the States were fully sovereign. Mississippi v. Louisiana, 506 U.S. at Arizona v. New Mexico, 425 U.S. 794, (1976). 26. Illinois v. Milwaukee, 406 U.S. at Mississippi v. Louisiana, 506 U.S. at 76; Wyandotte Chemicals, 401 U.S. at Having previously used commissioners to assist with original cases, the Court, in 1908, created the office of the Special Master, through which it designates Special Masters for individual cases to assist the Court by making initial factual findings and legal conclusions. See Virginia v. West Virginia, 209 U.S. 514, (1908). 29. See, e.g., Vermont v. New Hampshire, 282 U.S. 796, 796 (1930). 30. See, e.g., United States v. Louisiana, 485 U.S. 88, 89 (1988). 31. See, e.g., Oklahoma v. New Mexico, 501 U.S. 221, 221 (1991). 32. See e.g., Nebraska v. Iowa, 379 U.S. 996, 996 (1965); Arizona v. California, 466 U.S. 144, 144 (1984). 33. See also Vermont v. New Hampshire, 282 U.S. at 796.

5 When the case reaches the Supreme Court, the Special Master s role resembles less that of a district judge and more that of a trusted advisor. Most importantly, the Court has no obligation to defer to any aspect of the Special Master s report, either as to findings of fact or as to conclusions of law and generally speaking the Court has been consistent in making clear that such deference is not given. At oral argument in South Carolina v. North Carolina, Chief Justice Roberts noted that a Special Master is more akin to a law clerk than a district judge, and noted that we don t defer to somebody who s an aide that we have assigned to help us. 34 Certainly, that is an accurate description of the Special Master s role at the point where the Court reviews the case. In the end, it is the Court that ultimately determines the facts and law in any original jurisdiction case, as is appropriate given its constitutionally-appointed role. IV. UNIQUE CONSIDERATIONS IN INTERSTATE WATER DISPUTES An important class of original jurisdiction cases in recent decades has involved disputes between States over the allocation or disposition of interstate waters. Not only are these disputes of significant concern to the involved States and their citizens, but they also raise a number of unique issues that set them apart from other original jurisdiction cases. The Court did not even entertain interstate water disputes until early in the 20th century. Previously, the accepted view was that the Court s original jurisdiction did not extend to suits in which the State sought to vindicate the rights of its citizens that is, to act as parens patriae. 35 As the first Justice Harlan articulated this view, the original jurisdiction encompassed only cases affecting the property or powers of the complaining State in its sovereign or corporate capacity. 36 Such cases certainly included boundary disputes, which were thought to be of an appropriately proprietary nature and comprised the lion s share of the Court s docket in its earlier years. 37 It not until 1900 that the Court first suggested, in Louisiana v. Texas, that the jurisdiction might allow a State to represent the interests of its citizens. 38 The Court confirmed that conclusion a year later in Missouri v. Illinois, 39 where Missouri complained that waste from the City of Chicago was finding its way down the Mississippi River, to the detriment of Missouri property owners along the river. The Court rejected the argument that the action categorically was not within the Court s original jurisdiction, holding that if the health and comfort of the inhabitants of a state are threatened, the state is the proper party to represent and defend them. 40 This was a significant expansion from boundary and property disputes, where the States own proprietary interests were at stake. And, although the Court ultimately did not grant the relief that Missouri sought, 41 this same parens patriae framework has formed the basis for a long line of water disputes between States over the last century. 34. Orig. No. 138, October 13, 2009 Tr. at Literally, parent of the country. BLACK S LAW DICTIONARY 1003 (5th ed. 1979). 36. See, e.g., Louisiana v. Texas, 176 U.S. at 23 (Harlan, J., concurring). 37. In Wisconsin v Pelican Ins., 127 U.S. 265, 288 (1888), the Court noted that boundary disputes constituted the most numerous class of original cases on the Court s docket at that time. See also United State v. Texas, 143 U.S. at 640 (confirming that boundary disputes implicate a state s sovereign interests) U.S. at 19. In earlier cases, the Court had declined to decide whether a complaining State had to assert its own proprietary interests, as opposed to more general sovereign interests or the interests of its citizens. See South Carolina v. Georgia, 93 U.S. 4, 14 (1876); Wisconsin v. Duluth, 96 U.S. 379, 382 (1877) U.S. 208 (1901). 40. Id. at The Court ultimately found that Missouri had failed to meet the high bar for the Court s original jurisdiction and dismissed the bill. Missouri v. Illinois, 200 U.S. 496, (1906).

6 Another important issue that arose as the variety of original jurisdiction cases expanded was whether the Court had the power to make affirmative law to resolve those cases, or instead was limited to applying existing state or federal law. This issue typically was not raised by boundary cases, which usually were governed by a formal document, such as a grant from the crown or a prior treaty between States. 42 As the Court s jurisdiction expanded into areas, such as interstate water disputes, that were not governed by a treaty or another external source, some argued that Article III was merely a jurisdictional grant, and that the power to make law to provide a rule of decision was reserved to Congress such that if no such law existed to resolve the matter, the Court was powerless to act. 43 The Court disagreed, holding in Kansas v. Colorado 44 that the vital constitutional role of resolving disputes between States meant that the Court may have to fashion interstate common law to reach a resolution, in the absence of other controlling law: One cardinal rule, underlying all the relations of the states to each other, is that of equality of right. Each state stands on the same level with all the rest. It can impose its own legislation on no one of the others, and is bound to yield its own views to none. Yet, whenever... the action of one state reaches, through the agency of natural laws, into the territory of another state, the question of the extent and the limitations of the rights of the two states becomes a matter of justiciable dispute between them, and this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them. In other words, through these successive disputes and decisions this court is practically building up what may not improperly be called interstate common law. 45 The Court even opined that its power to fashion federal common law in this area, being a critical part of its constitutional power and duty to resolve controversies between States, extended beyond the powers of Congress enumerated in Article I. 46 It was based on this set of understandings, in many ways unique to water allocation disputes, that the Court began to develop federal common law in the area of equitable apportionment of the waters of an interstate river or waterway. Although these cases were of vital importance to the States involved, and raised complex issues requiring resolution, the precedent available to the Court was extremely limited. Indeed, given the dearth of existing federal law or other guidance to resolve water apportionment matters, as well as the rule that no one State s rules can prevail over another s, this area perhaps represents the most expansive manifestation of the Court s federal common law powers within the scope of its original jurisdiction. From the beginning, the Court made clear that its jurisdiction to determine the extent of one State s rights to the waters of a river over those of another State is very broad. 47 In Kansas v. Colorado, Kansas challenged Colorado s diversion of waters of the Arkansas River to irrigate non-riparian arid lands, and claimed that under English common law, it was entitled to receive the 42. See, e.g., Georgia v. South Carolina, 257 U.S. 516, (1922) (resolving boundary issues between Georgia and South Carolina by reference to the 1787 Treaty of Beaufort); Georgia v. South Carolina, 497 U.S. 376, (1990) (finally resolving State boundary by reference to the same 1787 Treaty). 43. See, e.g., Rhode Island v. Massachusetts, 37 U.S. at 677, U.S. 46 (1907). 45. Id. at (citation omitted). 46. Id. at See generally Kristin Linsley Myles, South Carolina v. North Carolina: Some Problems Arising in an East Coast Water Dispute, 12 WYO. L. REV. 3 (2012).

7 flows of the river as they existed before any human interference. 48 Colorado, in response, claimed the right of its users under its doctrine of prior appropriation to take the entire flow of the river, arguing that it had a sovereign right to divert and use any and all water running through its boundaries, without regard to any downstream impact. 49 The Court rejected both views, holding that the dispute would be resolved upon the basis of equality of rights as to secure as far as possible to Colorado the benefits of irrigation without depriving Kansas of the like beneficial effects of a flowing stream. 50 This solution captured the unique constitutional design of the original jurisdiction clause to ensure that each State is treated with dignity, a concern that also drove the Court s determination that federal common law, not the underlying law of either state, ultimately would govern the dispute. A significant factor that affected the Court s analysis was that the two States applied different and inconsistent state law schemes for allocating private rights from the waters of a river. The Court noted that [i]f the two states were absolutely independent nations, the dispute would be settled by treaty or by force, but because neither of these methods was possible, the dispute must be settled by decision of this court. 51 The resulting inquiry for resolving such water-apportionment matters is very broad: Priority of appropriation is the guiding principle. But physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former these are all relevant factors. They are merely an illustrative not an exhaustive catalogue. They indicate the nature of the problem of apportionment and the delicate adjustment of interests which must be made. 52 Although the Court applies federal common law to resolve interstate water disputes, 53 it looks to many sources in an effort to recognize the equal rights of both [States] and at the same time establish justice between them. 54 Depending on the context, the Court may consider [f]ederal law, state law, and international law. 55 For example, the Court may consider state law in discerning a federal common law rule to govern an interstate water dispute, 56 although state law is not to be deemed to have controlling weight 57 because it would be inequitable to choose one state s laws over another s. As the Court explained in Connecticut v. Massachusetts: [T]his is not to say that there must be an equal division of the waters of an interstate stream among the States through which it flows. It means that the principles of right U.S. at 85, Id. at Id. at Id. at Nebraska v. Wyoming, 325 U.S. 589, 618 (1945); accord Colorado v. Kansas, 320 U.S. 383, (1944). This equitable appropriation approach remains the governing doctrine for resolving high disputes between sovereigns by ensuring fair and evenhanded water divisions. Joshua Patashnik, Arizona v. California and the Equitable Apportionment of Interstate Waterways, 56 ARIZ. L. REV. 1, 43 (2014) (quoting South Carolina v. North Carolina, 558 U.S. at 277 (Roberts, C.J., dissenting)) (footnote omitted)). 53. Colorado v. New Mexico, 459 U.S. 176, 183 (1982). 54. Kansas v. Colorado, 206 U.S. at Kansas v. Colorado, 185 U.S. 125, (1902); see also Vermont v. New York, 417 U.S. 270, 277 (1974) (Court may rely upon principles of law, some drawn from the international field, some expressing a common law formulated over the decades ). 56. See, e.g., Illinois v. Milwaukee, 406 U.S. at Connecticut v. Massachusetts, 282 U.S. 660, 670 (1931).

8 and equity shall be applied having regard to the equal level or plane on which all the States stand, in point of power and right, under our constitutional system and that, upon a consideration of the pertinent laws of the Contending states this Court will determine what is an equitable apportionment of the use of such waters. 58 In Kansas v. Colorado, the Court declined to follow either State s body of water law, and instead weighed the relevant factors in a manner designed to establis[h] justice between the States. 59 In other interstate water disputes, the Court has borrowed state law as the federal common law rule for the case, principally where both States follow the same rules for apportioning water. 60 Under these precedents, the Court s creation of federal common law includes ensuring that each State is treated with equal dignity before the Court. A third area where the unique aspects of interstate water disputes have been considered is in the area of intervention of non-state parties in actions between sovereign States. From the early days of original jurisdiction cases, the Court has allowed non-state persons or entities to be named as parties to interstate disputes. 61 The practice of allowing such parties began in 1792, 62 and for more than two centuries the Court has exercised that jurisdiction over nonstate parties in suits between two or more States. 63 Such actions have involved a wide range of subjects, including claims for equitable apportionment of water. 64 The Court also has allowed non-state parties to intervene in original jurisdiction cases. 65 The Court s criteria for intervention track the constitutional and historical rationale for original jurisdiction over controversies between two or more States. Generally, the Court has narrowly restricted the scope of intervention for non-state parties in interstate disputes, applying the parens patriae doctrine to hold that, because a State represents the interests of its citizens, there is no need for non-state parties to intervene to protect their own rights. 66 When a non-state party seeks to intervene in a case where the party s home State is already named, the party must show that the State will not adequately represent its interests in other words, some compelling interest in his own right, apart from his interest in a class with all other citizens and creatures of the same state, which interest is not properly represented by the state. 67 In Oklahoma v. Texas, the Court first addressed the issue of whether non-state party plaintiffs could intervene in interstate disputes. The United States had intervened to assert claims against the States over a contested river, and the Court appointed a receiver over certain disputed property. 68 Various parties sought to intervene, claiming rights in the land that the receiver controlled. 69 Finding these claims in conflict with one another and with the claims of one or more of the three principal litigants, 70 the Court allowed the intervention, which it concluded 58. Id. at (citation omitted) U.S. at See Wyoming v. Colorado, 259 U.S. 419, 465, 470 (1922); Colorado v. New Mexico, 459 U.S. at ; Nebraska v. Wyoming, 325 U.S. at , See generally South Carolina v. North Carolina, 558 U.S. at Georgia v. Brailsford, 2 U.S. (2 Dall.) 402 (1792). 63. South Carolina v. North Carolina, 558 U.S. at Id. (citing Arizona v. California, 460 U.S. 605, 608, n.1 (1983); Texas v. New Mexico, 343 U.S. 932 (1952); New Jersey v. City of New York, 279 U.S. 823 (1929) (per curiam). 65. Id. at 265 (citing Maryland v. Louisiana, 451 U.S. 451 U.S. 725, 745, n. 21 (1981). 66. Patashnik, supra, note 52 at New Jersey v. New York, 345 U.S. 369, 373 (1953); accord South Carolina v. North Carolina, 558 U.S. at U.S. 574, 579 (1922). 69. Id. at Id.

9 would permit all possible claims to the property to be freely and appropriately asserted such that no other court could govern the receiver s control. 71 In some water cases, the Court has found that the putative intervenors lack the requisite independent interest. In New Jersey v. New York, the Court denied Philadelphia s motion to intervene in an action where New Jersey challenged a diversion by New York of the waters of the Delaware River. The Court held that Philadelphia had not shown that Pennsylvania would not represent its interests or that it had a compelling interest in its own right. 72 It would be unworkable, the Court noted, to allow each municipality with an interest in the matter to become a party a practice that would draw the Court into an intramural dispute over the distribution of water within the Commonwealth. 73 In South Carolina v. North Carolina, South Carolina sought an equitable apportionment of the waters of the Catawba River, and three non-state parties sought to intervene. The United States, as amicus curiae, argued that none of the three should be joined, asserting that, because each sovereign State represents its citizens as parens patriae, the decree necessarily will bind all such citizens, making it unnecessary to allow intervention by non-state parties. 74 The Court declined to adopt this broad prohibition, and allowed intervention by Duke Energy, which had eleven power plants along the river and would be involved in any resulting allocation plan. 75 The Court also allowed intervention by a bi-state municipal entity operating on both sides of the state border. 76 The Court found that these parties had interests in the outcome of the dispute that were not aligned with those of either of the two party States. 77 By contrast, applying the test set out in New Jersey v. New York, the Court declined to permit the City of Charlotte to intervene as a defendant. 78 As a North Carolina municipality and a beneficiary of its alleged water use, Charlotte was adequately represented by North Carolina, which shared Charlotte s interest in ensuring that the city received water. 79 A fourth area where interstate water disputes are unique is in the degree of difficulty such cases involve for a complaining State to prove its entitlement to a decree. Even if a State successfully invokes the Court s original jurisdiction and establishes its case by a preponderance, it is not assured a victory. Based upon the same sovereign interests that may cause the Court to decline to exercise original jurisdiction over an action, it also may decline to award relief in such an action, even where one State has proven its case. This is particularly true in equitable apportionment cases involving interstate waters, where a decree could involve enjoining the defendant State from certain uses or actions with respect to the disputed waters. The Court has stated that the complaining State must establish proof by clear and convincing evidence of some real and substantial injury or damage. 80 But even a showing of such injury may not suffice: the complaining State also must show that the countervailing equities benefitting the defendant 71. Id. at New Jersey v. New York, 345 U.S. at Id. 74. South Carolina v. North Carolina, Orig. No. 138, BR. OF UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF S EXCEPTIONS (Feb. 2009) U.S. at Id. 77. Id. at 271, Id. at Id. at Nebraska v. Wyoming, 507 U.S. 584, 591 (1993); see also Colorado v. New Mexico, 459 U.S. at 187 n.13; Connecticut v. Massachusetts, 282 U.S. at 669; New York v. New Jersey, 256 U.S. 296, 309 (1921).

10 State do not justify the detriment to existing users in the complaining State. 81 The complaining State must show, with clear and convincing evidence, a substantial injury caused by the other State, such as unreasonably wasteful use, 82 such that the Court would be prepared to defend its decree against all considerations on the other side. 83 And the defendant State may prove that the benefits of its uses or proposed uses of water substantially outweigh the harm[s] alleged by the complaining State, in which case no decree will issue. 84 The Court s decision in Kansas v. Colorado illustrates this balance. After a trial, the Court found that Kansas had shown that the diminution of the flow of water in the river by the irrigation of Colorado has worked some detriment to the southwestern part of Kansas. 85 Nonetheless, the Court found that comparing that detriment to Kansas with the great benefit to Colorado compelled the conclusion that equality of right and equity between the two states forbids any interference with the present withdrawal of water in Colorado for the purposes of irrigation. 86 The Court made much the same point in Colorado v. Kansas: [T]he court is conscious of the great and serious caution with which it is necessary to approach the inquiry whether a case is proved. Not every matter which would warrant resort to equity by one citizen against another would justify our interference with the action of a state, for the burden on the complaining state is much greater than that generally required to be borne by private parties. Before the court will intervene the case must be of serious magnitude and fully and clearly proved. And in determining whether one state is using, or threatening to use, more than its equitable share of the benefits of a stream, all the factors which create equities in favor of one state or the other must be weighed as of the date when the controversy is mooted. 87 In Connecticut v. Massachusetts, the Court again was reluctant to disrupt the status quo between two States though a decree. Connecticut challenged a plan by Massachusetts to divert waters of the Connecticut River, claiming anticipated harm to Connecticut s agriculture and hydropower capabilities. 88 After holding a full merits trial and making findings supporting many of Connecticut s assertions the Court dismissed the bill because Connecticut had not offered clear and convincing evidence of serious injury so as to provide the Court a warrant to exert its extraordinary power to control the conduct of one State at the suit of another. 89 A final aspect of interstate water cases that makes them unique on the Court s original jurisdiction docket is the degree of complexity that can accompany the resolution of the case and the role of the Special Master. Because there often is no pre-existing law governing the question of water allocation between two States, and because of the extraordinarily broad inquiry that the Court has fashioned for the equitable apportionment analysis, such cases can involve complex determinations of water usage and need, including input from experts on a wide range of technical questions. In some cases, a Special Master may take years to prepare a case for the Court s review, amassing a substantial and lengthy record, including expert testimony on technical or scientific matters. 90 In the seminal case of Arizona v. California, the litigation lasted 81. Colorado v. New Mexico, 459 U.S. at Id. at Missouri v. Illinois, 200 U.S. at Colorado v. New Mexico, 459 U.S. at U.S. at Id. at U.S. at (footnote omitted) U.S. at Id. at , 669; see also Colorado v. New Mexico, 467 U.S. 310, 319, 320 (1984). 90. See, e.g., New Jersey v. Delaware, 552 U.S. 597, 608 (2008).

11 for decades, the initial trial lasted for two years, and multiple Special Masters presided over the case over its lengthy history. 91 Other cases have similarly spanned many years and a wide range of technical, legal, and historical issues, even in cases that ultimately did not result in any decree. 92 Although the process may not share the efficiency of the Court s tight appellate docket, where cases are briefed, argued, and resolved within a single Term, the Court s unique role as trial court, court of final resort, and arbiter of controversies between sovereign entities on complex matters of vital sovereign concern more than justifies that relative lack of efficiency. VI. CONCLUSION Original jurisdiction is an important feature of the federalist form of government created by our Constitution. The Court s jurisdiction over interstate water disputes has represented perhaps its most expansive exercise of the original jurisdiction power, including the power to make affirmative law and to fashion decrees that would alter a sovereign State s use of the water flowing through its territory. For those reasons, the Court consistently has exercised its jurisdiction over such matters with great care, according due respect to the uniquely sovereign interests that such disputes present U.S. 546, 551 (1963); see also Arizona v. California, 531 U.S. 1 (2000). 92. See, e.g., Colorado v. New Mexico, 459 U.S. at 187; Kansas v. Colorado, 206 U.S. at ; Connecticut v. Massachusetts, 282 U.S. at