Chattahoochee RiverWarden

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Lawyers for Georgia and Florida have been fighting over water for years but on one issue they appear to have something in common: pushing back against the litigation schedule pushed by the U.S. Supreme Court’s special master.

In an order issued Dec. 19, special master Ralph Lancaster Jr. of Maine gave the states until mid-July to complete written discovery in their dispute over water from the Chattahoochee and Flint rivers. He wants depositions done by Thanksgiving and motions to dismiss or for summary judgment filed by the middle of next January.

That’s a much quicker schedule than had been requested by the parties, although it represents a slower pace than Lancaster had put forth initially. In response to his initial order, the parties’ lawyers told Lancaster that the scope of facts to be explored is so large that they needed at least until next summer to complete expert discovery and file dispositive motions.

Memorialized in publicly available transcripts, conference calls among Lancaster and the parties have been marked by lawyers for Florida and Georgia politely presenting a mostly united front. Their message: the case is complicated, they are moving it along and the schedule must be relaxed.

In a Dec. 15 teleconference, Craig Primis at Kirkland & Ellis in Washington, one of the lawyers representing Georgia in the matter, said the U.S. Army Corps of Engineers’ updating of its water supply manual for the Apalachicola-Chattahoochee-Flint (ACF) River Basin, expected to be released for public comment later this year, will inject new information into the mix, although lawyers for both sides said there were limits to the information provided by the corps. Then-Georgia Solicitor General Nels Peterson (who since has left the attorney general’s office for the state university system’s Board of Regents) was on the call too, and he said the progress of the case may be hampered by the state’s inability to control every entity that will have relevant information, noting each county in Georgia is a separate legal entity.

In that teleconference, Lancaster assured the parties that he had “a sense of the complexities of the issues involved” in the matter and that they included “hydrology, biology, economics, et cetera.” But at one point he said that if “either state feels that you are understaffed, I urge you to take another look at it.”

Lancaster also has repeatedly urged the states to pursue settlement of the matter. Lawyers on the Dec. 15 call told Lancaster that there haven’t been any settlement discussions since 2013, before Florida filed the case. Lawyers for both sides were hesitant to commit to settlement talks on that call; Peterson said “there is certainly an openness on Georgia’s part, but that is driven and decided by people well senior to anyone on this call.”

Urged by Lancaster to hurry up, Georgia has filed a few weeks early its answer to the case filed by Florida in the U.S. Supreme Court last year. The case is unusual in that the high court effectively serves as a trial court in deciding controversies between states. The justices appointed Lancaster as special master, charged with managing discovery disputes, handling pretrial motions and presiding over a trial-like proceeding. The Supreme Court doesn’t have to accept the master’s findings on the facts or the law, however.

On the Dec. 15 conference call, Lancaster suggested that the parties consider a settlement with an “escape clause” such that either side could withdraw from the agreement if the information on which the settlement is based turned out to be erroneous. At the close of the Dec. 15 call, Lancaster said the discussion “underscores the increasingly large cost of this transaction.” In a subsequent letter to the parties attaching the new schedule, he urged them to “aggressively explore settlement possibilities.”

Earlier, on a Dec. 1 conference call, Lancaster told the parties his current hourly rate is $650 but he would request only $550, given former U.S. Supreme Court justices’ comments that serving as a special master on appointment by the high court is a matter of public service. Lancaster said an associate assisting him on the matter, Joshua Dunlap, normally bills at $275 per hour; Lancaster proposed a $225 rate for him.

A special master’s fees and expenses generally are borne by the parties, and the master is paid or reimbursed by filing a motion with the high court. Lancaster, who is on his fourth special master appointment by the Supreme Court, told the parties in the Georgia-Florida case that he has in similar cases assessed charges equally between parties. But he warned, “I have the discretion to modify them if it’s warranted for any egregious behavior.” He said allocation of charges to the U.S. Department of Justice, which has weighed in on the case at the request of the Supreme Court and has until Feb. 9 to tell Lancaster to what extent it wishes to continue to participate, will be considered later.

Lancaster, who is of counsel at Pierce Atwood in Portland, Maine, is making conference transcripts and various filings available on his firm’s website. Despite this transparency, he cautioned the parties about the media at the Dec. 1 conference. He said he had “no authority or interest in trying to put a gag order in” but suggested the parties “use restraint” in talking to reporters.

“My long-term experience with them is that they will take things out of context,” Lancaster said, according to the transcript, “and you’ll be trying to explain them for the rest of your lives.” He suggested referring media to the Supreme Court’s public information office as a possible avoidance tactic.

Asked about possible settlement talks in the matter, Lauren Kane, spokeswoman for Georgia Attorney General Sam Olens, noted Lancaster’s suggestion not to talk to the media about the case. “We are going to follow his advice,” she said in an email. She allowed the state was still finalizing the paperwork on financial arrangements with outside counsel.

Whitney Ray, press secretary for Florida Attorney General Pam Bondi, also declined to comment, citing the ongoing nature of the case.

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