Why Mississippi’s Plea to the Supreme Court That It “Owns” Its Water and That Tennessee Is “Stealing” It Is Just Wrong by Joseph Regalia

        I.          Mississippi and Tennessee’s water fight in the U.S. Supreme Court

Water is pretty important. There’s a reason why people have been fighting over it for over a thousand years. We need it for the essentials—drinking, washing, and shipping things. We need it for the conveniences—our grassy front yards, our bottled water, and our swimming pools. And we need it for nearly everything else, although you might not realize it. Take the plastic used to make disposable water bottles. The manufacturing process for those bottles uses more water than they hold.

So it’s no surprise that we are using more water in the U.S. every year. And in more arid or faster-growing areas, those increasing demands are putting real strains on water supplies. On top of that, our water resources are often hydrologically connected across multiple states, and those states usually have different ideas about what to do with the water.

States have been fighting over water for a long time, and usually, the U.S. Supreme Court has settled those disputes by using a doctrine called equitable apportionment: a flexible standard that allows the High Court to balance the states’ competing interests in water and issue a decree that splits the water up between those interests.

Several years ago, Mississippi got fed up because neighboring Tennessee (and especially Memphis) was pumping so much water from an aquifer that it was lowering the water tables in Mississippi. Mississippi sued Tennessee in the Supreme Court (which has original jurisdiction over state conflicts). This case is still pending.

But what’s new is that Mississippi has tried to resurrect an old theory to avoid the normal equitable apportionment process, seeking to hoard water for its own uses without sharing. Mississippi’s theory is misleadingly simple. The state says it owns the water in its borders and that Tennessee is stealing it. After the case was sent to a Special Master, Tennessee moved for summary judgment, but the Court denied it (surprising many of us), and the case has been percolating for years now.

Justice Holmes explained long ago in New Jersey v. New York that water is a “necessity of life” so vital that the law requires it to “be rationed among those who have power over it.” Water’s special importance is why the law treats it differently than it treats every other resource—and always has. An unbroken line of U.S. Supreme Court precedent makes clear: Water does not fall under the neat label of a “good” or “chattel.” Instead, it is a res communes; a unique public resource managed by states as trustees, not property owners.

And that is precisely what Mississippi misses in framing its pending case as a water “ownership” dispute. Mississippi claims outdated and overruled property rights in a public water resource. Why Mississippi takes this novel approach is no mystery: the state believes that claiming an “ownership” interest in its water will strip the Supreme Court of its power to balance competing interests and allocate water for the good of both Mississippi and Tennessee citizens. Our nation’s history with water—including the U.S. Supreme Court’s several forays into the matter—confirm that Mississippi presses a right it never had. State interests in water are not amenable to the lines we draw around property, and they never will be.

As a state sovereign, Mississippi holds a narrow but important right in the aquifer: the right to seek protection of its water resources for future and current citizens; the rights of a sovereign trustee over the state’s natural resources. So yes, Mississippi is within those rights in challenging Tennessee’s pumping if it harmed the public’s interest in Mississippi waters. But no, Mississippi does not have any proprietary property right in this water that allows it to skirt around the Supreme Court’s power to equitably balance competing interests in groundwater resources.

The Court has framed the relevant inquiry as whether this aquifer water is “interstate.” But even if Mississippi suffered harm to entirely intrastate water resources—that would be of no matter here. Mississippi does not “own” either interstate or intrastate waters. The state instead has the very different sovereign interest of protecting the Mississippi public’s continued use of its water resources, whether interstate or intrastate. This is the same interest that Tennessee holds in the water within its own borders. And the only sort of test that can resolve disputes between co-equal sovereigns—representing co-equal citizens—is a flexible one that accounts for competing interests held by the citizens of both states.

In any event, our nation’s ever-growing need to balance current and future interests in groundwater resources for the good of all citizens makes Mississippi’s property framework untenable. Sovereigns charged with the duty to protect the public’s interest cannot approach water conflicts like trade disputes. States have tried that tact before, and the Supreme Court has consistently rejected it. Instead, the Court has instructed that this unique and precious resource requires states to work together to sensibly balance our interests in water—and failing that, the Supreme Court must do the balancing. If Mississippi’s ownership theory were accepted, the floodgates could open for water trade wars between the states, an outcome the Supreme Court has worked hard to prevent thus far. Not to mention that recognizing a state’s interest in groundwater as one of property owner could signal a sea change in our nation’s water law jurisprudence generally.

At bottom, Mississippi tries to use a claim of water ownership to shirk its sovereign duties as a public trustee. But claims of ownership cannot allow a state to avoid the hard decisions that come with managing our nation’s precious and collective water resources. The physical and social realities of water have rounded its corners so that it can never fit in the square hole of property.

      II.          Mississippi sues over ownership rights it never had.

In Mississippi’s view, states are “vested with ownership . . . over the land and waters within [their] territorial boundaries.” Mississippi contends that if another state pumps groundwater from an aquifer—and this pumping drains some water in Mississippi—this other state has unlawfully taken Mississippi’s property. To support this unprecedented ownership theory, Mississippi cites to cases like Kansas v. Colorado for the proposition that a state holds actual “title” to the waters within its borders.

It is true that states can own things. They own plots of land—like they own the structures they build on them. And states can sue other states (or anyone else) for stealing the things they own. But water is different. Early English common law recognized that, and so has an unbroken line of this Court’s precedent for over a century.

Early U.S. cases, like Martin v. Lessee of Waddell, reasoned that the federal government inherited the nation’s water and then transferred those waters to each state as it entered the union—known today as the equal-footing doctrine. But the federal government could give only what rights it held—and those rights did not include traditional ownership—they included only the power to police and manage water for the public good.

True, a handful of cases before and near the turn of the nineteenth century, such as Donnelly v. United States sometimes used language about “property” or “title” when talking about the states’ relationship with water. And a few other cases at the time, like Corfield v. Coryell, suggested that states could use some sort of property-like right to push other states’ citizens out of an intrastate water resource—usually by restricting fishing in an intrastate waterway. But these outdated cases never held that states own water within their borders. And this Court’s later decisions leave no doubt that a state ownership theory has been firmly debunked.

Hudson County Water Co. v. McCarter, the one early case that concerned harm to actual water resources (as opposed to oysters or other wildlife), is often raised by states claiming some sort of ownership interest in water. The Court there upheld a New Jersey statute prohibiting transfers of waters out of state, reasoning that “the constitutional power of the state to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of the extent of present use or speculation as to future needs.”

But even here, the Supreme Court was already signaling what it would expressly hold decades later: water cannot be owned by states. The Court in Hudson was careful to never call New Jersey’s interest in water “property” or “ownership”—despite using these same terms when siding for state owners in prior cases about wildlife. Instead, the Court was careful to base its holding on a “principle of public interest and the police power, and not merely as the inheritor of a royal prerogative.”

Although the Court would sometimes use “property” or “ownership” labels when talking about water resources during the 1800s and early 1900s, these cases were ambiguous at best. Even in one of the foundational equal footing cases, the Supreme Court explained that the government held water “for the benefit of the whole people” and “in trust.” Justice Field was even more explicit in Illinois Cent. R.R. Co. v. Illinois, explaining that the states’ relationship with water is “different in character” from other resources, held only “in trust for the people of the state.”

As water conflicts escalated throughout the twentieth century, the Court was pressed to address state water ownership head on. Several interstate conflicts percolated through the courts, often raising dormant commerce clause claims. And the Court left no doubt: States cannot own water—nor can they use water ownership as a shield to monopolize precious water resources. Cases like McCready v. Virginia were relegated to the pages of history: every attempt by a state to raise a water-ownership theory to squirrel away water has been resoundingly rejected since then. Indeed, the theory that states can own any wild resource has been trounced in a number of contexts.

State ownership theories over water officially drowned as early as the late 1940s. Toomer v. Witsell, for example, addressed a challenge to South Carolina’s shrimping statute, which prevented other states from using South Carolina’s water beds. Defendants, unsurprisingly, touted cases like McCready to contend that South Carolina’s “ownership” of the beds empowered the state to ignore outside interests in its water resources.

The Court expressly called out the state ownership concept on its face: “The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.” The Court explained that when it said in the past that states “own” water, it really meant that states have power to regulate the resources to protect them.

In the 1970s, the Court authored several opinions ending any remaining debate about whether a state could “own” water or otherwise use a property theory to shield itself in water conflicts. In 1977, in Douglas v. Seacoast Products, Inc., the Court rejected the argument that Virginia’s “ownership” of fish in its territorial waters allowed the State to forbid nonresidents from fishing in those waters. The Court pulled no punches: “A State does not stand in the same position as the owner of a private [ ] preserve and it is pure fantasy to talk of ‘owning’” wild water resources. The Court put its earlier cases in perspective, saying [t]he ‘ownership’ language of cases [like McCready] . . . must be understood as no more than a 19th-century legal fiction.”

Finally, in Sporhase v. Nebraska, the Court “traced the demise of the public ownership theory and definitively recast it as ‘but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.” The Court explained that the idea that a state could use property rights as a sword in water disputes “is still based on the legal fiction of state ownership.” The Court recognized the profound interest states have in groundwater resources and emphasized that these interests must be balanced when applying doctrines that settle disputes. The Court also explained that groundwater implicates many important interstate and national issues which further militate against viewing state groundwater as a matter of competing property interests.

The conclusion to be drawn from the Court’s modern jurisprudence is clear and simple: States do not own water, neither by royal prerogative nor on behalf of their citizens. Instead, states can regulate how their citizens use water and can raise their sovereign interest in protecting water resources when other states harm them. Nothing more and nothing less.

   III.          Mississippi’s ownership theory is inconsistent with various doctrines recognized by the Supreme Court.

As noted by the Special Master, the Court’s rejection of state ownership of water is also implicit in various longstanding doctrines, including equitable apportionment, the public trust doctrine, the federal reserve doctrine, and others.

When faced with competing claims to water resources, the Court has always turned to equitable apportionment and denied claims of absolute territorial control or ownership. One example of this is Idaho v. Evans. Similarly, the public trust doctrine expressly inhibits states from alienating or harming water resources, which is inconsistent with an ownership theory. As is the federal reserve doctrine, which allows the federal government to reserve even intrastate waters.

   IV.          Mississippi’s sovereign interest in the aquifer thus extends only to its general police powers and public trust rights.

If states like Mississippi don’t own their water—then what precisely is the source of their power over state waters? This Court has identified two: (1) the states’ sovereign police powers, and (2) the state’s rights as public trustee.

The first power is borne of state sovereignty: the states’ police power to regulate matters within their borders so long as they are not expressly entrusted to the federal government or directly to the people. As the Court explained in Washington Kelpers Ass’n v. State, “Police power is an attribute of sovereignty, an essential element of the power to govern, and a function that cannot be surrendered. It exists without express declaration.”  

Both Mississippi and Tennessee thus have general police powers to regulate the waters within their borders for the general welfare of their respective citizens—but that power does not confer on Mississippi any special right or interest in a water dispute. Any conflict between these co-equal sovereign interests would necessarily require resolution from the Supreme Court.

The second power, mentioned above, stems from the public trust doctrine, first described by this Court in Illinois Central. Ill. Cent. R.R. Co. The public trust is both sword and shackle. States are empowered to protect against harms to current and future uses of important water resources. But the public trust also limits each state’s ability to dispose of or allow harm to come to important water resources. A growing number of courts and scholars have urged that states’ relationship with water should be viewed as more of one as trustee than simple state sovereign. And that view aligns with the Court’s approach to water resources in both rejecting state ownership claims and recognizing the public trust duties held by all states.

      V.          Groundwater is a precious national resource, and state conflicts over this resource require equitable resolutions.

There is little dispute about the pressing need for governments to protect winnowing water resources. The U.S. is facing the worst water crisis in its history. And climate change is altering water resources across the nation. Climate change is predicted to put increasing pressure on water resources. Rainfall is expected to decrease; evaporation will increase; water resources will dry up. Couple these climate threats to water with an increase in water usage and greater demands for water in urban areas like Memphis—and you have a water management dumpster fire. We are already seeing water supplies dwindle. Government agencies have also identified areas that that will face critical water threats, regardless of climate change.

The competing demands for surface water—including maintaining in-stream flows and other environmental protections—have increased pressure on groundwater resources in particular. Since 1950, groundwater withdrawals have more than doubled from 34 billion gallons (128,704,000 m3) per day to 76 billion gallons (287,691,296 m3) per day in 2010. Groundwater now provides over one-fifth of the freshwater used in the United States. Interstate conflicts over the use of transboundary groundwater resources are emerging around the country. The ongoing dispute over the Snake Valley Aquifer, pitting the water needs of Las Vegas against environmental and agricultural interests in Utah, is a telling example.

Groundwater offers water users several advantages over surface water. It is widely available, less vulnerable to environmental pollution, and often suitable for drinking with minimal treatment. Groundwater is also not subject to competing demands for navigation, recreational use, or fishery habitats.

How the Court deals with this case will thus have profound ramifications for important disputes around the nation. If Mississippi’s ownership theory is given any shrift, the Supreme Court’s ability to resolve competing interests and uses of water resources will be hamstrung. States will have less incentive to cooperatively seek out beneficial uses of waters, with scales now tipped in favor of whichever state happens to claim a better property interest in waterways—regardless of what allocation makes most sense on the merits. Our nation’s water crisis requires flexibility and cooperation—both of which Mississippi’s property theory would jettison.

   VI.          Final Thoughts

The dispute between Mississippi and Tennessee presents the Supreme Court with a chance to establish a rule for interstate groundwater disputes, which will become more common and significant in coming years. While this appears to be a novel issue at first blush, the Court has waded into similar waters many times before. It has been dealing with arguments about sovereign ownership of water since the birth of the nation. And each time it has told the states the same thing: water is unique, and it cannot be “owned” by anyone, state sovereign or otherwise.

Joseph Regalia is an Associate Professor of Law at UNLV’s William S. Boyd School of Law. 

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