“Water judge” way out of line

U.S. District Court Judge Paul Magnuson, of Minnesota, last July issued an order in the long-simmering “water wars” between Georgia, Alabama and Florida.  The judge has now issued another order that reveals him to be an advocate and not the disinterested, objective jurist Georgia is entitled to and which normal jurisprudence requires.

Judge Magnuson’s July 17th order was bad enough.  In it, he went well beyond setting forth the facts, the arguments, his reasoning and his legal conclusions.  The Minnesotan roundly and explicitly chastised the Atlanta metropolitan area for having developed too fast and in a way that failed to meet the judge’s view of the necessity of good planning.  In so doing, the judge decided, the city had outstripped the area’s proper water allocation.  For this, and based on his narrow view of congressional action and legislative interpretation, the judge issued a draconian order that — unless something happens legislatively or politically between the three states to provide for increased water to be allocated to Georgia’s human water needs — the metro area’s water withdrawals from Lake Lanier would be dramatically cut back (to the point of precipitating a true human disaster for the area’s millions of residents).

In the wake of the judge’s earlier ruling, Georgia’s Gov. Sonny Perdue made clear the state would pursue a multi-faceted response; including political talks with the neighboring states, possible action by the Congress, and further litigation.  In this regard, lawyers for the state recently filed an appeal of Magnuson’s July order.  Perdue would have been roundly — and justifiably — criticized had he not sought an appeal of the court’s order.  After all, the stake are high, and in Georgia’s view there are legitimate and not-insignificant legal questions in the judge’s earlier ruling and reasoning.

Apparently Judge Magnuson doesn’t like having his orders appealed.  He may also be oblivious to the real-world concerns of a sitting governor facing a court order that will — if not amended or rescinded — devastate his state’s economy.  Or, perhaps the judge simply disdains the political arena in which elected officials must operate. Perhaps even the judge suffered an unpleasant experience in the Peach State at some point in the past for which he harbors ill-feeling.  Whatever the reason, for a judge to publicly reprimand a state for doing what common sense and proper legal ethics and practice require — that is, to appeal an adverse ruling – shows quite clearly that Judge Magnuson is not serving the people or the bench of which he is a part, in a manner consistent with sound and proper jurisprudence.

56 comments Add your comment

JB

October 7th, 2009
6:23 am

U.S. District Court Judge Paul Magnuson, of Minnesota, from the land of AL Frankan. Need we say more?

frank

October 7th, 2009
6:50 am

Guess he’s still pissed about the ‘98 NFC CG

jt

October 7th, 2009
7:03 am

“Court of Appeals cannot over-rule the United States Supreme Court. See Kitowski v. United States, 931 F.2d 1526, 1529 (11th Cir. 1991). Except in the Eighth Circuit.

In the Eighth Circuit the Constitution of the United States and legislative enactments of Congress are merely “suggestions” when applied to pro se litigants. Raising a constitutional issue in the Eighth Circuit, as a review of decisions addressing the issues raised by pro se litigants in the Eighth Circuit will verify, is an exercise in futility for anyone but lawyers. The incompetence, ignorance, and dishonesty of judges like Paul A. Magnuson and Scott O. Wright at the district court level is simply stamped “approved” by Eighth Circuit deciding panels in pro se cases.

As more and more of the common people experience this inequity by the federal courts in the Eighth Circuit, they begin to realize that there exists a caste system legal system: there is one set of rules for the likes of William Kennedy Smith and Neil Bush and another set of rules for the rest of the people. Instead of adhering to their oath of office, 28 U.S.C. § 453, which they swore to uphold (to judge impartially), the judges in the Eighth Circuit Court of Appeals rule in favor of their fellow members of the bar. Those not in the club need not attempt to gain the justice to which they are entitled.”

Until this problem gets settled, Governor Sonny Perdue should cut the water off to EVERY Federal facility in Georgia. I’ll volunteer to do it.

GB

October 7th, 2009
7:25 am

Questions for Mr. Barr:

I haven’t studied the details of the judge’s ruling, but my understanding from press accounts is that the law authorizing Lanier does not provide for use of the lake as a water source for metro Atlanta. Therefore the withdrawal is illegal. Is this a correct summary?

If this is the case, what is the point of negotiation with Florida and Alabama? If the federal law says “no,” what is there to negotiate? Even if they wanted to do so, the other two states could not authorize Georgia to break federal law, could they?

And why the three-year wait? If withdrawal is illegal how can the judge authorize three more years of law breaking?

None of this makes sense to me. Can you explain?

clyde

October 7th, 2009
7:52 am

Everything I read about Lanier leads me to believe that it was never intended to supply drinking water to Atlanta.Flood control and power generation were it’s purposes in life.I beleive that the residents of Atlanta have stolen water from the Federal Government for a lot of years and they owe the people of the U.S. a hell of a pile of money for this thievery.How you like that,Bob?

bob

October 7th, 2009
7:52 am

Why not tap into the hooch before it hits Lanier ?

Dawgfan

October 7th, 2009
8:04 am

Georgia’s land owners should store the water before it ever reaches Lanier.

Zoot

October 7th, 2009
8:09 am

There is a bit of irony in having a jurist from the land of 10,000 (natural) lakes, Presiding over the fate of waters within our entirely man-made reservoir system.

Then again, there’s something odd about the largest federally-operated reservoir in Georgia being located near the very top of a narrow watershed and relied-upon by a majority of this state’s citizens, as well as everyone else downstream.

Fact is, most reservoirs in this state are federal facilities. As such, the citizens of Georgia are only entitled to as much of those facilities’ resources as the owner (Congress) will allow.

Perhaps the question we should ask isn’t why we can’t have the water, but why the choice of our Congressional delegation – who represent the interests of one of the south’s largest economic engines – lack the clout to bring a resolution to this tiresome conflict.

M Anthony

October 7th, 2009
8:17 am

Interesting comments from Bob considering he was in office since this fight has been going on and he chose to do nothing about it then. Sonny has done nothing about since he has been in office. Too little too late. So now we have a clown from MN who is willing to shut off water to a major US city. The Core of Engineers? Are these the same morons responsible for the levies in New Orleans?

retiredds

October 7th, 2009
8:21 am

Bob, this isn’t news. GA has had at least 20 years to negotiate. I spoke with friends 10 years ago and we agreed that if it went to the courts GA would lose. The real problem is the politicians, and you were one of them, continue to try to decide issues that score political points with the base that supports them, regardless of the harm it might do to all the citizens. The results we have now were very predictable but politicos with no vision couldn’t see it. Another example is high speed rail. As the money gets distributed GA, with slim plans, will lose out. The line will stop in Charlotte, the next Atlanta.

David S

October 7th, 2009
8:30 am

The government does not respect property rights. Never has, never will. Nothing about Buford Dam or Lake Lanier has anything to do with the respect of private property rights or riparian law (water rights).

When the people of this country began allowing the govnernment, whether federal or state to violate property rights in the name of whatever (safety, public interest, community interest, etc.) they gave up all hope of ever having freedom or prosperity again.

The Federal Government certainly has no constitutional authority to be building dams or seizing property for the benefit of power companies or flood control, or anything else of this nature.

The sooner republicans and democrats alike get it through their heads that government is the problem, and NEVER the solution, the sooner we can hopefully take back this country and restore freedom and liberty.

gloom and doomer

October 7th, 2009
8:54 am

I was told a story by an engineering acquaintance about plans that were made for a secondary water pool below Lanier that would belong to and be managed by the state watershed authority. This would have provided a water source for the Atlanta metro area.

But, as the story went, the good old boy network in Ga. got wind of it before it went public and began buying up land in the area that was to be affected, and the prices asked for the land then skyrocketed under the new owners. This made the project prohibitively expensive and as a result it was deep-sixed. Why the process of condemnation wouldn’t have worked in this case is unknown. The only good thing about this if it is true is that a bunch of big money wheeler-dealers ended up taking it in the shorts.

So much for the concept of the general welfare. Why have vision when you can be told what to do by some jurist in another state, and let the chips fall where they may?

This was all supposed to be going on in the area below the Buford dam. Anyone have any additional information?

LeeH1

October 7th, 2009
8:59 am

U.S. District Court Judge Paul Magnuson appears to be a strict constructionist. If you can’t justify your removal of water by previous agreements, then you lose.

So why are all these conservatives, who can’t even conserve water, complaining about the ruling of a strict constructionist when it isn’t in their favor?

Talk about water hypocrites.

Atlanta has over built and paid no attention urban planning or natural resources in order to have un-constrained growth. Now you have to pay the piper, or at least pay for water for what it’s really worth, not what it is subsidized for.

Quit sucking off federal government welfare, and pay for what you want.

[...] Barr comes out and questions Magnuson in a blog post. The judge has now issued another order that reveals him to be an advocate and not the [...]

sd

October 7th, 2009
10:00 am

“The Minnesotan roundly and explicitly chastised the Atlanta metropolitan area for having developed too fast and in a way that failed to meet the judge’s view of the necessity of good planning. In so doing, the judge decided, the city had outstripped the area’s proper water allocation.”

For a guy living in Minnesota, he seems to know us pretty well.

retiredds

October 7th, 2009
10:16 am

Republicans are only strict constructionists when the strict constructionist judge rules in their favor. When the strict constructionist judge rules against them, the judge is an activist judge.

And, David S, I keep hearing from the right that “we have to take back our country and restore our freedom and liberty”. I am curious, what do you need to take back, and what freedom and liberty have you lost?

OzzyM

October 7th, 2009
10:17 am

What part about did the Judge get wrong about Atlanta expanding beyond its means? Atlanta should not have a free pass to take its neighbors resources purely for the sake of its own growth. Governor Perdue has done nothing to address Georgia’s water needs other than his usual grandstanding. He is letting special interests that can’t afford to lose Lake Lanier Water (Georgia Power and Southern Company) dictate our strategy instead of doing what’s best for the state. Barr, did nothing to address this problem when he had a chance.

Hillbilly Deluxe

October 7th, 2009
10:28 am

The original purpose of Lake Lanier was navigation and flood control. This was no secret to those of us who lived here at the time it was built. The problem really is that the Chattahoochie is too small a watershed to feed an area as big as Atlanta has become, but the developers are allowed to keep building anyway.

The people who lived on the land that is now under the lake had their land seized by the Federal government and were compensated as the government saw fit. Many of those families had owned that land over 100 years.

A lot of people don’t realize that the Chattahoochie watershed is just a part of north Georgia, not the majority. Water from north Georgia also drains into the Coosa, the Tennessee, and the Savannah. I’ve seen comments about the “water from the mountains of Tennessee and North Carolina” but none of that water flows into the Chattahoochie; those mountains are across the divide.

As for Minnesota, the source of the Mississippi River is in Minnesota; should that give Minnesota the right to control all the water in the Mississippi?

William

October 7th, 2009
10:31 am

Hey I hope Atlanta loses the water rights! The Ga supreme court took away from ga citizens Notchaway Creek and gave it to coco cola. It took coco cola interest several years but they now personally own the creek. The court took it away from us so I hope you guys get real thirsty up in Atlanta. Hey maybe coco cola can sell you bottled water fresh from the creek.

Bob Barr

October 7th, 2009
10:47 am

I can take criticism that accurately addresses what I did or did not do during the years I served in the Congress (1995-2003). However, folks criticizing me for “doing nothing” regarding the “water wars” while I was in the Congress haven’t done their homework (or, perhaps they did their research and chose to ignore or misrepresent what they found). In fact, the legislation authorizing the three states involved in this dispute (Georgia, Florida and Alabama) to negotiate a “compact” to resolve the issues outstanding (which is required in light of the prohibition in the Constitution against states entering into compacts), was authored and introduced by me, and co-sponsored by the Georgia delegation. It passed and was enacted into law. This was a major piece of legislation that provided a framework within which the three states could work to resolve these serious problems. Unfortunately, the three states did not take full or proper advantage of this mechanism.

Monophil

October 7th, 2009
11:02 am

William,

Look who Perdue has put in charge of dealing with the crisis now…John Brock of Coca Cola (contingency task force) and Mike Garrett of Georgia Power (”Water Czar”). They happen to be the heads of the two biggest commercial users of water in Georgia. These people have too much of an interest in making money for their companies to be trusted to look out for the interests of the average Georgia citizen. Do your job, Sonny! Quit delegating it to the wrong people.

Jon but not Jon Voight

October 7th, 2009
11:22 am

How would you feel if Lake Lanier was in Tennessee or North Carolina?

retiredds

October 7th, 2009
11:25 am

Bob, I stand corrected that you did nothing. Thank you. I do have a question that I hope you will consider answering, putting aside your beef with Judge Magnusen, why, in your opinion, can’t our elected officials negotiate a solution? I, for one, am very tired of hearing: it’s the judiciary’s fault, it’d the Democrats fault, it’s the Republicans fault. If I used those lame excuses to my superiors when I was in the business world I would have been shown the door. We elect officials to get things done, even if it means they have to compromise. Today, it seems, the opposition is the enemy and we don’t do anything that will make the enemy look good, including a compromise that just might benefit the region or the country. So, Bob, I am looking forward to your answer either in this blog or an article reflecting your views about my complaint.

Mari

October 7th, 2009
11:44 am

Enter your comments here
Mr. Barr,

I must not understand the order. I have practiced law for 21 years and I believe that every order can be appealed. What kind of order did he issue that he believes is not appealable? Is he working under a different set of rules than the Federal Civil Practice Act or does he just not want to be appealed?

John Q.

October 7th, 2009
12:12 pm

If a raindrop falls anywhere in most of north Georgia the states of Alabama and Florida control what can be done with it. That just does not seem right.

Charles

October 7th, 2009
12:16 pm

Why don’t we ask the citizens on the United States if they want the banks that they are supporting to face millions of forclosures in metro Atlanta? Do the polititions think that cutting water to metro Atlanta would be good for the distressed economy?

Jefferson

October 7th, 2009
12:35 pm

Cowboys and Indians

Kevrock/Smarty Jones

October 7th, 2009
12:44 pm

I agree with you Bob. What a idiot of a judge. One person is going to wreck the Capital of the Southeast and move millions of people, ruin a whole city, businesses, etc..again what a idiot. I do see some kind of dirt come out on this clown and he will have to step down. NO WAY is the National Gov’t going to ruin a city of this magnitude and then have to transfer massive flight plans, etc. away. This judge is just like most lawyers…they think they know everything…Look at the mess Lawyers have done to our country? Case closed! Bring back Judge Wapner! At least he had commonsense.

yall are crazy

October 7th, 2009
12:45 pm

How does the water in a GEORGIA lake belong to Alabama and Florida? Sounds like straight-up political bull$#!t if you ask me. Someone should just tell Alabama and Florida to build their own friggin lake.

yall are crazy

October 7th, 2009
12:49 pm

Everyone in Georgia should protest this nonsense by publicly urinating in Lanier. THEN we shall see how badly Alabama and Florida want that water.

booger

October 7th, 2009
12:57 pm

I have actually read at least portions of the documents referred to in the building of Buford Dam. I can find nothing that indicates that this was intended to be an exclusionary document. It seems to outline the reasons and justification for building the dam, which at the time were the same reasons for building most large dams; power generation and navigation. I do not recall any list of things which the waters captured by the dam could not be used for as long as it didn’t interfer with the corps objectives.

At this time I happen to live in the mountains in the area which supplies Lake Lanier. The town nearest me built a small resevoir a few years ago for use by the town and county. since the creek which feeds the resevoir also ultimately goes into the Lake, they had to have the corps of engineers study the plans and approve the building of the dam. This seems to indicate to me that every drop of rain which falls on these mountains is controlled by the corp. Since they control the lake and everything south of the lake, this basically means they own all the water in this watershed just because they built lake lanier. This doesn’t seem quite right, and I do not think this was understood by the state at the time the dam was built.

Chris Broe

October 7th, 2009
12:57 pm

“….the metro area’s water withdrawals from Lake Lanier would be dramatically cut back (to the point of precipitating a true human disaster for the area’s millions of residents).”

Who wrote this piece, Chicken Little?

Jklol

CNN just reported that Hell’s Kitchen host Gordon Ramsay has just admitted on the air that he has had sex with Apple Pies that he has worked with on his show. He apologized to edible panties, candified condoms and of course, female anatomy cakes he’s baked on the show. In a joint statement, Count Chocula, the Hamburglar and the Pillsbury Doughboy have condemned the chef and demand his resignation from the show.

sam

October 7th, 2009
1:09 pm

yeah Bob, what did you do about this issue while you were our elected representative? also, what an idiot judge following the damn law. what we need is some activist judg….oh wait a minute,no, oh just forget it…

bob

October 7th, 2009
1:22 pm

Sam, does a strict constructionist judge tell people to not file an appeal when an appeal is a legal recourse? Bob Answered your question about what he did earlier in the thread, read it.

Swede Atlanta

October 7th, 2009
1:25 pm

I haven’t followed the state’s arguments for appeal. Is the Governor attempting to get a different interpretation and application of the applicable law, challenging the constitutionality of the law or hoping a judge will attempt to fashion some type of equitable solution?

Even if the lower court’s order was overturned on appeal that might deal with the immediate concern about drinking water for Atlanta. I doubt that the situation would ever have resulted in Atlanta being without drinking water. I’m sure some type of accomodation would have been made.

But even if the order was overturned on appeal Atlanta cannot continue to suck Lanier dry. Where does that leave the Southeast going forward? There will continue to be a limited amount of water. The three states continue to share a watershed area that runs from North Georgia down the border with Alabama and into the Gulf.

At some point the time must come for Georgia’s elected leaders to do something other than pose for photo ops and gather for prayer. We need to be taking definitive action to reduce consumption and other measures for the short-term (including incentives, etc. for gray water projects), and developing a truly sustainable model for the long-term.

I doubt that unless the water rates tripled overnight or the water was shut off and the people finally told The G.A. and the Governor to act, nothing will be done. Sonny is hoping for a win in court so he doesn’t have to actually do any work.

jconservative

October 7th, 2009
1:31 pm

The judge is way out of line.

This will ultimately be in the SCOTUS with the Roberts court torn between State & the Federal authority. Bet on the Federal, they will allow the Corps to do whatever they want regardless of Congressional statutes.

DLS

October 7th, 2009
2:08 pm

I am not a lawyer but many years ago I had to test for a real estate license and one questions was about shortcuts. If you own a preoperety and people cut across a corner and you did not say no or post signs to that fact that it eventially became a right of way. If Atlanta has been using the water for all this time does that constitute passive permission. Second who can enforce the cutoff the people that would have to enforce it all live in Atlanta.

Maybe we should approach Obama for an excutive order. Remember the ARMY corp of engineers report to him.

nipuspan

October 7th, 2009
2:27 pm

Only Gwinnett and Forsyth suck unauthorized water from Lanier. Cobb, Dekalb, Fulton get legal water from the Chattahochee. Hall is grandfathered prior to Lanier’s existence.
I wish article would be clear to who has problem instead of saying MetroATL.

JM

October 7th, 2009
2:31 pm

The Minnesotan roundly and explicitly chastised the Atlanta metropolitan area for having developed too fast

Now that just really irks me. It’s not like we have very much (if any) control over this when you have as many people that have moved into the metro Atlanta area in my lifetime (41 years) as I have seen. What were we supposed to do?? Tell people they can’t move here, because we can’t develop anymore, because somewhere down the road there is going to be a water war between us, Alabama and Georgia. Give me a freakin break Judge Magnuson!

JM

October 7th, 2009
2:32 pm

Sorry … obviously I meant FLORIDA instead of GEORGIA.

Turd Ferguson

October 7th, 2009
2:52 pm

There is plenty of “water” flowing from the sewage plants and cesspools. Could this “liquid” not be sanitized or recycled so that the good citizens of Atlanta might have something to drink?

Swede Atlanta

October 7th, 2009
3:01 pm

Ref: JM at 2:31 p.m.

No, you don’t tell people they can’t move here. That right is protected under the U.S. Constitution.

But you can define conditions and criteria for moving here. With respect to new development including new businesses locating here there needs to be an assessment of and payment for infrastructure.

For years Georgia and Metro Atlanta especially have attracted new companies lured by relatively lower costs for property, utilities, etc. as well as tax incentives. Employees are attracted due to lower home prices and relatively lower cost of living. So all of this new growth comes in but there is no corresponding assessment of what that growth will cost.

What that growth will cost in terms of new highways, sewer, water, new schools, additional police and fire, etc. “infrastructure”. We haven’t considered the cost of this growth in terms of other impacts such as deforestation which raises summer temperatures and contributes to erosion. No consideration of new demands for WATER, electricity, etc.

These companies aren’t ever asked to contribute to pay for the infrastructure necessary to support the growth. Our G.A. afraid of the word taxes won’t ask the users of these services whether they are businesses or individuals to pay for them. The system eventually breaks down.

So no restriction on coming here but it must be managed growth and those who wish to come here have to fund the cost for the infrastucture improvements, etc. that will be required. New employers should be required to have, where appropriate, telework programs to get people off the highways. New buildings should be required to have gray water programs, etc.

It is the only way you will have sustainable growth.

sam

October 7th, 2009
3:06 pm

bob, passing a resolution saying ‘okay guys figure it out’ isnt exactly problem solving 101 or a major ‘piece of legislation’…..good try though.

gttim

October 7th, 2009
3:07 pm

Atlanta and/or Georgia had the opportunity to “buy into” the building of Lake Lanier. They declined to, and thus the federal government owns it lock, stock and barrel. With a little foresight, this situation would not exist.

And the river does belong to all 3 states, not just Georgia. No river should be “stopped” or greatly reduced just because the state upstream decides it wants to use all the water. Or wants to pollute it.

Beowulf

October 7th, 2009
3:22 pm

All this talk of using more foresight on Lanier 50 years ago is silly and useless. If you had told anyone at that time that Atlanta would be a metro area of 5 million people, you would have been laughed out of the room.

Show me politicians in any area of the country who truly think much beyond their own terms. As a race, humans tend to be short-sighted. There is no specific language within Lanier’s charter saying that it cannot be used for water service. Had that truly been a concern – that we might see a shortage due to overdrawing, they probably would have placed limits on it. The whole fuzziness centers around the fact that drinking water usage really was not addressed much at all. Leaves it wide open for politicians and judges to interpret as they see fit. I find it hard to believe that any intelligent reworking of this document will ignore the human population of Atlanta, but clearly balances need to be addressed much more thoroughly.

DebbieDoRight

October 7th, 2009
3:39 pm

Bob: We’ve lost the case in court numerous times; it’s time to just let it go and think more on the lines of conserving water and eliminating waste. The good times ain’t rolling anymore so now we must roll up our sleeves and come up with alternatives. Just let it go…….

Beowulf

October 7th, 2009
3:46 pm

Alternatives…you mean like the Tennessee River? Feasibly there is NOTHING that can replace Lanier completely. Besides, without Georgia using any of the water from Lanier, it is way more than Florida and Alabama would ever use even in the worst drought. Last year’s low caused a knee-jerk reaction from the media, doomsday type stuff. The worst drought we have on record and the reservoir was still more than half full. Even the most strident conservation efforts could not make Atlanta so that it did not need some water from the lake, unless you can find a way to make it so human beings don’t need water to survive.

Georgia made a big misstep a few years back when we tried to grab at a guaranteed % of the volume of the lake. That is what turned it all sour. We need to admit the stupidity of that, and the admirable job that Georgians did with conservation during that time is not commended nearly enough. Florida and Alabama did not even think about any restrictions, how much the double standard! That said, I am sure that we will work out an agreement, hopefully one that nobody really likes. Those are always the best types, and we can’t expect more from politicians.

Jefferson

October 7th, 2009
3:51 pm

While its good to have an opinion, in the end it won’t matter. What Georgia needs is a vision and a plan, something the money and special interests will sway the politicians to maintain the status quo.

Chris Broe

October 7th, 2009
3:51 pm

The solution lies in a trip for the water judge to White Water. When he sees the fun that metro atlanta has with water, and can see for himself that we’re not wasting one drop, but instead using water in ways that no one has ever dreamed of, well, lets just say that he’ll realize how all-wet his decision was.

And if he persists in his “draconian” ways, then I suggest someone grab a hose and hose this clown down, and lets put whatever water we are left with to good use!

DebbieDoRight

October 7th, 2009
4:16 pm

Alternatives…you mean like the Tennessee River?

No. I’m talking something along the lines that a state like Nevada and New Mexico have. Start with conservation ideas and go from there. We were the country that rebuilt it’s entire navy AND made it faster and stronger in a matter of Months after were bombed at Pearl Harbor — we can do this, we just need to try and stop whining about what we don’t have, roll up our sleeves, and get to work!