US Supreme Court hears first two cases of new term on water rights, ACCA
© WikiMedia (US Capitol)
US Supreme Court hears first two cases of new term on water rights, ACCA

The US Supreme Court heard oral arguments in person on Monday for the first time since the COVID-19 pandemic shut down the court in March 2020. Eight justices were present, with Justice Kavanaugh, who recently tested positive for the virus, attending remotely.

The first case the justices heard was Mississippi v. Tennessee, an original case in which Mississippi claims that Tennessee is, through an unnatural amount of well-pumping on its side of the border, stealing groundwater from the Mississippi side of the border. At issue is the Middle Claiborne Aquifer, which lies underneath both states. The legal question in the case is whether the equitable apportionment doctrine applies. The doctrine automatically applies to surface water disputes between states. However, Mississippi is advancing a territorial property rights theory, claiming ownership of all the water that would, under natural conditions, have remained under the state.

In oral argument, however, the justices seemed skeptical of Mississippi’s claim that equitable apportionment should not apply. They were particularly skeptical when John Coghlan, lawyer for Mississippi, was forced to concede that Tennessee’s wells do not enter into Mississippi’s territory at any point when they pump water out of the aquifer. He was also forced to concede that water in the aquifer does flow, albeit slowly, which led to questions as to why equitable apportionment would not be an appropriate doctrine.

David Frederick, counsel for Tennessee, urged the court to reject both Mississippi’s property rights theory as well as their leave to amend their original complaint to include equitable apportionment should Mississippi fail on its claim at this stage. The justices did press hard on Frederick’s contention that equitable apportionment doctrine might apply to groundwater, which would be a new ruling from the court. Interstate aquifers run under practically every state in the country, and there was some concern that extension of the doctrine could lead to an increase in litigation.

The second case was Wooden v. United States, a case involving the Armed Career Criminal Act (ACCA). James Wooden broke into a mini-storage facility in 1997 and burgled 10 different storage units, for which he pleaded guilty to 10 acts of burglary. In 2015, he was arrested for being a felon in possession of a firearm. The government charged him under the ACCA, which would subject Wooden to a fifteen year mandatory minimum sentence, but only if he had three prior violent felonies. The government claims the ten burglary charges qualify as ten violent felonies, while Wooden argues that all ten burglaries occurred on the same “occasion” and so count as only one violent felony for the ACCA. Because there is a split between the circuits regarding what an “occasion” means, the court agreed to hear the case.

The court pressed Allon Kedem, lawyer for Mr. Wooden, on just what an “occasion” would mean. They asked questions about how much time in between criminal acts would be necessary for the criminal acts to become separate occasions. Kedem argued that events occur on the same occasion when they arise from the same set of circumstances. The justices seemed concerned that the test Mr. Wooden was arguing in favor of is a totality of the circumstances test, and that may prove to be too vague a standard when a reviewing court has to look at the case. Kedem also pointed out that the principle of lenity should apply in favor of his client.

Erica Ross, for the government, pressed the point that the rule Mr. Wooden is proposing would be difficult to apply and would necessarily lead to different results between different judges. But the justices wondered what exactly it is that makes someone a career criminal, such as whether one night with ten different burglaries and no other criminal history would qualify a person as a career criminal under the ACCA. They further questioned how the government parsed the term “occasion” with how ordinary people would use the term, putting forth that in ordinary usage Mr. Wooden’s ten burglaries would be a single “occasion.”