In keeping with the legal strategy it first began six years ago, Apalachicola has voted to join the state in its upcoming suit against Georgia to secure more water for Apalachicola Bay.
By unanimous consent at a special meeting Friday afternoon, city commissioners gave the go-ahead for City Attorney Pat Floyd to pursue a two-pronged legal strategy - joining forces with the state, as well as researching the feasibility of basing a suit on inverse condemnation, a legal term for when a government takes private property but fails to pay the compensation required.
City Commissioner Frank Cook was absent from the meeting, which had been called by Mayor Van Johnson just two days earlier.
Johnson emerged as a strong proponent for taking legal action, just as he was in Nov. 2007, when he pushed for the city to join the state in suing the Army Corps of Engineers. While she eventually voted in favor of joining the suit, Commissioner Brenda Ash led the push for specifics as to the financial cost of resuming this legal battle.
The mayor began by reading the 2007 resolution, passed unanimously, which had first involved the city in the “water wars” legal battle. That suit initially received a favorable ruling in 2009 from Senior U.S. District Judge Paul Magnuson, who said it was illegal for the Corps to draw water from Lake Lanier to supply the metro-Atlanta region. His ruling also established a July 2012 deadline for Georgia, Alabama and Florida to come to an agreement on how to share the water.
But, in June 2009, the 11th Circuit Appeals Court unanimously overturned Magnuson’s ruling, and said that there had not been a “major operational change” regarding the Corps’ policy. The appeals court ruled that one of the purposes for Lake Lanier was to supply water to the metro-Atlanta region, and directed the Corps to make a final determination on water allocation from Lake Lanier.
“We first sued the Corps and Atlanta interests and we went through the process that it was illegal to take this (water) without going to Congress to get permission,” Floyd said. “This was a major operational change, and they had to go back to Congress to get it. (But) the Corps continued under the interim plan, and continued to increase the water.”
Floyd said the suit now being contemplated would be a new one. Johnson said the Senate field hearing, and governor’s visit, last week, announcing the state planned to sue Georgia, convinced him it was time again to act.
“It was more or less a wakeup call that we should renew our resolve,” he said. “If we don’t do that, then everything that has been done was in vain.”
Ash spoke out for greater specifics on what the mayor was proposing. “While it may be extremely important for the city to be a part of this, to continue this fight, we have a fundamental financial obligation to our city not to overextend ourselves budgetwise,” she said. “What are the steps to this fight? What is the estimated cost in time? Are any other entities joining the state at this point? “Is there a process we're going to put in place to fund this battle?”
A report from City Clerk Lee Mathes indicated the city spent about $113,000 in legal fees over the past six years on the suit against the Corps.
Johnson took up Ash’s challenge. “I see a larger picture, I look at the loss of revenue and the loss of jobs,” he said. “I see people every day at Franklins Promise standing in the soup line to get just enough food for the week.”
Ash said she was concerned with “the total picture. This is a cross the city is going to bear financially. For me I need to understand how we’re going to fund this without overextending our budget.”
The mayor replied “that’s not a question Pat can answer. We’re looking at the legality of moving forward.
“What price do you think we should put on in protecting one of our precious natural resources? It’s priceless,” he said.
“It may be priceless but in reality it is a price somebody has to cover,” Ash said.
“What’s at stake here is livelihoods,” said the mayor.
“I just can’t say here’s a blanket check, let’s get it done,” said Ash. “To me that’s not a sound practice. I have to understand how we’re going to fund it.”
Johnson continued his impassioned plea for support. “It ripples throughout the whole economy. How can you put a price on what makes Apalachicola prosper?” he said. “Understand there are a lot of lives at stake here. The last thing I want to do is delegate that to the state of Florida. We owe it to people who make Apalachicola their home to look after their interests as well. What price do we put on protecting our interests?”
Ash brushed back the criticism. “I am not minimizing the importance of the bay, I am not minimizing the importance of the river, I am not minimizing the effect it has on the city of Apalachicola,” she said. “To me it’s a bigger picture, for the functioning of the city of Apalachicola.”
Commissioner Mitchell Bartley questioned Floyd as to who would take the lead in the suit, and the attorney said the state.
Floyd also defended his $80 per hour fee, comparatively low for attorneys who handle these sorts of things. “There are people who charge $400 to $500 an hour for that type of work,” he said. “We have developed a knowledge and expertise. We’ve been there and we’ve been able to make sure the Apalachicola people have a voice in this.
“I am going to continue to do that at that rate,” he said. "We would be able to monitor that as we go through. The governor said we're going to file suit against the state of Georgia. We have to figure out the process for joining it.”
Johnson backed up the attorney. “We would not have the power ourselves to file suit, but still have the input,” he said. “The state gets credibility from the city of Apalachicola.
“Ours is an economic interest first and it’s also a historic interest that you can't put a figure on,” he said.
“Let’s minimize the cost while we maximize the purpose,” said Ash.
Commissioner Jimmy Elliott voiced full support for Ash’s questioning. “What you’re doing is exactly what you should be doing,” he told her. “Every war has to be funded, we’re going up against a giant, even David went up against a giant.
“I respect Commissioner Ash’s questions on this,” Elliott said. “There’s something worth fighting for.”