Amicus Curiae Brief — Virginia v. Maryland

O

FILED

No. 99-129 Original

IN THE

Supreme Court of the Anitey States-

CLERK

Supreme Court, U.S.

COMMONWEALTH OF VIRGINIA,

Vv.

Plaintiff,

STATE OF MARYLAND,

Defendant.

Motion of the Audubon Naturalist Society

for Leave to File an Amicus Curiae Brief

Opposing the Commonwealth of Virginia’s

Motion for Leave to File a Bill of Complaint

and Amicus Curiae Brief of the Audubon

Naturalist Society

*Counsel of Record

April 21, 2000

KATHLEEN A. BEHAN

CHRISTOPHER D. MAN*

ARNOLD & PORTER

555 12th Street N.W.

Washington, D.C.20004

(202) 942-5000

Counsel for Audubon

Naturalist Society

Wilson-Epes Printing Co., Inc. - (202) 789-0096 - Washington, D. C. 20001

Sipoo

TABLE OF CONTENTS

SUMMARY OF THE ARGUMENT. ................... tenoennnses

THE COMMONWEALTH'S LEGAL CLAIMS

i iiiileniitacitiitiieaitcaciei inant

II.

A.

No Controversy Concerning the Author-

ity’s Proposed Intake Will Be Ripe Unless

ACE Issues Its Own Permit ........................

. The Commonwealth's Request for an Ad-

visory Opinion Concerning Water Appro-

priation Is Not Ripe............ccccccccccccececsesseee,

THE COMMONWEALTH LACKS FARENS

PATRIAE STANDING TO PURSUE THE

AUTHORITY'S CLAIM FOR A _ CON-

STRUCTION PHIRDAIT «.2.2.0ccescscsesecocesssececeseceees

A.

Allowing the Commonwealth to Invoke

Original Jurisdiction on Behalf of the Real

Party in Interest Would Distort the Article

III Jurisdiction of the Federal Courts ..........

- The Commonwealth Is an Inappropriate

Parens Patriae Class Representative..........

The Commonwealth Lacks A Quasi-

Sovereign Interest That Would Support

Parens Patriae Standing. .................0.0.0.0000.

EE eno) EE

10

1]

13

14

14

16

il

TABLE OF CONTENTS - (Continued)

Do | ene eee Page

A. Letter from Baida to Man of 5/23/00................ la

B. Letter from Fisher to Man of 5/28/00 ............... 2a

C. Affidavit of John M. De Noyer, Ph.D............... da

D. Affidavit of Marie W. Ridder .....................0008 7a

E. Response to U.S. Army Corps of Engineers

“fo =

Regarding U.S. Fish and Wildlife Service

Comments on Joint Application for Permit for

Potomac Mid-River Intake ................cceseeseeeeees 9a

Letter from Reardon to Sultan of 1/28/98......... I3a

Letter from Dubrowski to Zirschky of 12/22/97 15a

Letter from Zirschky to Dubrowski of 3/5/98... 44a

Pre-Hearing Brief of Fairfax County Water

ARTERY 00020000000000ssscossenseseennnenennennmatannnannialal 46a

TABLE OF AUTHORITIES

CASES Page

Alaska Ctr. for the Env't v. Browner, 20 F.3d 981

ee 6

Alaska Sport Fishing Ass'n v. Exxon Corp., 34

EEE UNESP erteresemssnccesssnssenessesseneneee 4

Alfred L. Snapp & Sons, Inc. v. Puerto Rico, 458

ee 15

American Canoe Ass'n v. EPA, 54 F. Supp.2d 621

a 6,7

American Iron and Steel Inst. v. EPA, 115 F.3d 979

| 6

Anderson v. Green, 513 U.S. 557 (1995)............0. 12, 13

Burford v. Sun Oil Co., 319 U.S. 315 (1943)......... 16

California v. Frito-Lay, Inc., 474 F.2d 774 (9th

Ee 17

City of Tacoma v. Taxpayers of Tacoma, 357 U.S.

Ea 4

Coalition of Arizona/New Mexico Counties for

Stable Econ. Growth v. Department of Interior,

100 F.3d 837 (10th Cir. 1996) 20.0.0... 3

Colorado v. New Mexico, 459 U.S. 176 (1982)..... 17-18

Friends of the Earth, Inc. v. Laidlaw Envil. Servs.,

Bg Be ets I Ga Pecccccccceccccsscssececesceceecese 18

Hawaii v. Standard Oil of California, 405 U.S. 251

Ee 15, 16

In re Sierra Club, 945 F.2d 776 (4th Cir. 1991)... 3

Louisiana v. Texas, 176 U.S. 1 (1900)................... 9,15

Lujan v. Defenders of Wildlife, 504 U.S. 555

EEE 20

Maryland v. Louisiana, 451 U.S. 725 (1981).... 3, 15, 16

Massachusetts v. Mellon, 262 U.S. 447 (1923) ..... 15

Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir.1996)... 3

Mississippi v. Louisiana, 506 U.S. 73 (1992)........ 17

iv

TABLE OF AUTHORITIES-(Continued)

Nebraska v. Wyoming, 507 U.S. 584 (1993).......... 18

New Hanover Township v. United States Army

Corps of Eng'rs., 992 F.2d 470 (3d Cir. 1993).. 13

New York v. Illinois, 274 U.S. 488 (1927)............. 13

New York v. New Jersey, 256 U.S. 296 (1921)...... 20

Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726

ee 12, 13

Ohio v. Wyandotte Chems. Corp., 401 U.S. 493

CBP aD ncrcreemmmeee 20

Oklahoma vy. Atchison, Topeka & Santa Fe Ry. Co..,

Ce, Sr Cee nsiiimaeen 15

Oregon Natural Desert Ass'n v. Dombeck, 172

San 5

O'Shea v. Littleton, 414 U.S. 488 (1974) «0.0.0... 20

Pennsylvania v. New Jersey, 426 U.S. 660 (1976) 15, 16

Railroad Comm'n v. Pullman Co., 312 U.S. 496

Ge cssssesnennsninemmenm 16

Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525

en 3

Satsky v. Paramount Communications, Inc., 7 F.3d

ee 4

Service v. Dulles, 354 U-S. 363 (1957) .......c0cccc000 12

Sierra Club v. Espy, 18 F.3d 1202 (Sth Cir. 1994) . 3

State of Oklahoma ex rel. Johnson v. Cook, 304

he Be eri teatictrerircincrntiinsatciiditeridiienciaeaiiinnaea 15, 16

Texas v. New Mexico, 462 U.S. 554 (1983)............ 18

Trbovich v. United Mine Workers, 404 U.S. 528

EE ee LL een 3

United States v. Nevada, 412 U.S. 534 (1973)...... 18

Vv

TABLE OF AUTHORITIES~(Continued)

Page

United States v. Riverside Bay View Homes, Inc.,

Ge ee Ge Gee rcreremeenettemmn 5

Vitarelli v. Seaton, 359 U.S. 535 (1959)...........0000 12

Washington v. Washington State Commercial Pas-

senger Fishing Vessel Ass'n, 443 U.S. 658

Spee Oncunesesmncesemmememenemermnens 4

Younger v. Harris, 401 U.S. 37 (1971) 0.0.0.0... 16

CONSTITUTION, FEDERAL STATUTES AND

REGULATIONS

U.S. Const., Art. TID, § 2, ch. 2 ........cccscccssrssersssesesees 14

pM ee 15, 16

A ee 15

ne 14

Pe: ee 14

Clean Water Act, 33 U.S.C. § 1251(aX(7) (1994)... 5

Clean Water Act, 33 U.S.C. § 1288(b)(2)(H).......... 5

Clean Water Act, 33 U.S.C. § 1288(f)................0.. 5

Clean Water Act, 33 U.S.C. § 1288(h) .................. 5

Clean Water Act, 33 U.S.C. § 1288(i)................... 5

Clean Water Act, 33 U.S.C. § 131 McK 2MA)......... 5,6

Clean Water Act, 33 U.S.C. § 1313(d)(2)............... 5,6

Clean Water Act, 33 U.S.C. § 1313(d4)(B) ......... 6

Clean Water Act, 33 U.S.C. $1313) ..........cc0e. : 6

Clean Water Act, 33 U.S.C. § 1329 ..0.....ccccccccccceeees 5

Clean Water Act, 33 U.S.C. $1344.00... cccccceeeeee ll

GG Fide © FIG FEBIIG RD cccccsscccsecssscssccssscescsvsscsszeses 6

FO Ge & FeO OED ccnsssnsssszsncsszenscsesssvscsssssssscsseses 11-12

INTEREST OF AMICUS CURIAE

The Audubon Naturalist Society (“ANS”) respectfully

moves the Court to grant it leave to file this amicus curiae

brief opposing the Commonwealth of Virginia's motion for

leave to file a bill of complaint.' Established in 1897, ANS is

the oldest naturalist organization in the Washington metro-

politan area, with more than 10,000 members from Virginia,

Maryland and Washington, D.C. ANS and its members have

a considerable stake in this controversy because they use the

very portion of the river where the Fairfax County Water

Authority (the “Authority”) proposes to build a mid-river in-

take.

In addition, ANS’ Virginia members oppose the Com-

monwealth’s claim that it represents them as parens patriae.

To demonstrate this point, ANS has attached affidavits from

two of its many members who oppose the Authority's pro-

posed intake on environmental grounds and who object to the

Commonwealth's claim to represent their interests as parens

patriae. (Affidavit of Dr. John De Noyer (App. C); Affidavit

of Marrie Ridder (App. D).) Dr. De Noyer is among the

country’s most respected geophysicists, with nearly 50 years

of experience, and has served as the Chairman of the Fairfax

County Environmental Quality Advisory Council. He also is

a customer of the Authority and, as an elected member of the

Herndon Town Council, represents an entire community that

drinks the Authority's water. (App. C.) Affiant Marrie Rid-

der has been appointed Chairman of the Virginia Council on

the Environment by two Virginia Governors and is a riparian

' Counsel for a party did not author this brief in whole or in part and

no person or entity. other than the amicus curiae or counsel, has made a

monetary contribution to the preparation or submission of this brief. The

State of Maryland has consented to the filing of this brief. (Letter from

Baida to Man of 5/23/00 (App. A)). but the Commonwealth of Virginia

has refused to give its consent. (Letter from Fisher to Man of 5/28/00

(App. B).)

I

-_

land owner on the Virginia side of the Potomac River. (App.

D.)

ANS and its members have a long history of using this

segment of the Potomac River. For well over 40 years, ANS

has organized bird watching and guided nature tours near the

location of the proposed intake. ANS also conducts kayaking

and canoe tnps along this portion of the Potomac. For exam-

ple, a kayaking trip has been scheduled for this Fall that actu-

ally would traverse the area where the proposed intake would

be built. Periodically, ANS also offers nature photography

courses and graduate environmental courses for Virginia's

teachers.

ANS depends on those activities to attract new members

and promote member participation. These activities also pro-

vide a forum in which ANS can teach its members and the

public about the importance of conservation. ANS has found

that the natural environment provic.. the best classroom for

teaching environmental values.

The Authority's proposed construction of the intake threat-

ens the activities that ANS and its members enjoy and depend

upon. The Authority's proposal involves blasting a trench that

is 18 feet deep, 18 feet wide, and that would extend 725 feet

into the center of the river. A hole also would need to be

blasted in the center of the riverbed that would be large

enough to accommodate an intake structure 35 feet wide. The

construction would last several months, and there can be little

question that blasting and the operation of heavy machinery

would injure the aesthetic and recreational attributes that the

area now provides ANS and its members. Among other det-

riments, kayaking and canoeing on the river would be se-

verely limited if not rendered impossible by the serious dan-

ger posed by blasting and the related construction.

Aside from the short-term impacts from construction, ANS

and its members are concerned that the construction and

3

operation of the intake will have serious long-term conse-

quences. Blasting and construction would generate a great

deal of sediment, which may have irreversible effects on the

ecology. Once built, the intake may cause erosion of the riv-

erbed, which could disturb the ecology by altering the flow

and course of the river. Suction from the intake also may

threaten the ecology through the entrapment and entrainment

of aquatic life.

In opposing ANS’ submission of its views as amicus

curaie, the Commonwealth mistakenly suggests that any in-

terest ANS has in this litigation “can be adequately repre-

sented by the State of Maryland.” (App. B.) This contention

lacks merit for two reasons. First, ANS has much narrower

interests to protect in this case than the State of Maryland. To

be sure, environmental preservation is an important goal that

ANS shares with the State of Maryland, but the State, unlike

ANS, represents countless other interests that it must balance

against the goal of environmental preservation in making its

decisions. This distinction alone would justify ANS* inter-

vention in its own right,” and is more than adequate to justify

ANS’ submission of its own views as an amicus curaie.

Second, the State of Maryland cannot vindicate the inter-

ests of ANS’ Virginia members when the Commonwealth

alleges that it is acting as a class representative for those

: See, ¢.g., Coalition of Arizona/New Mexico Counties for Stable

Econ. Growth v. Department of Interior, \00 F.3d 837, 844-45 (10th Cir.

1996). Mausolf v. Babbitt, 85 F.3d 1295, 1303-04 (8th Cir. 1996); Sierra

Club v. Espy, 18 F.3d 1202, 1207-08 (Sth Cir. 1994); In re Sierra Club,

945 F.2d 776, 779-80 (4th Cir. 1991), Sagebrush Rebellion, Inc. v. Watt,

713 F.2d 525, 528 (9th Cir. 1983). The burden of making this showing for

imervention is “minimal.” Trbovich v. United Mine Workers, 404 US.

528, 538 n.10 (1972); see also Maryland v. Louisiana, 45\| U.S. 725, 745

n.21 (1981) (noting that “it is not unusual to permit intervention of private

parties in original actions”).

4

persons. If the Commonwealth is permitted to act as a repre-

sentative for ANS* Virginia members as parens patriae, those

persons could be bound by representations made by the

Commonwealth in this litigation.’ These members may be

involved in future litigation against the Commonwealth or the

Authority concerning this proposed intake and should not be

bound by the representations of an adverse party. The Com-

monwealth’s argument does not demonstrate that Ma: yland

adequately represents ANS° interests, but conclusively dem-

onstrates that the Commonwealth is an inappropriate repre-

sentative of ANS* Virginia members in a parens patriae ca-

pacity.

STATEMENT OF THE CASE

Due to the rapid and largely unchecked development of

Northen Virginia, considerable urban runoff empties into

Sugarland and Broad Runs and then flows into the Potomac

River. The adverse impact of this sedimentation on the Po-

tomac River and its users is considerable; however, the

Commonwealth's complaint focuses only upon the impact to

the Authority. The Authority is concerned that its shoreline

intake withdraws these waters and the associated sediment

and it must filter out and dispose of the sediment at great

expense. Assuming that Virginia's sedimentation problem

will not improve, the Authority seeks to move its intake away

: See, e.g., Washington v. Washington State Commercial Passenger

Fishing Vessel Assn, 443 U.S. 658, 692 n.32 (1979) “[T}hese individuals

and groups are citizens of the State of Washington, which was a party to

the relevant proceedings, and “they, in their common public nights as Citi-

zens of the State. were represented by the State in those proceedings, and,

like it, were bound by the judgment.” “ (quoting City of Tacoma v. Tax-

payers of Tacoma, 357 U.S. 320, 340-41 (1958)), Alaska Sport Fishing

Ass'n v. Exxon Corp., 34 F 3d 769, 773 (9th Cir. 1994), Satsky v. Para-

mount Communications, Inc., 7 F.3d 1464, 1470 (10th Cir. 1993).

5

from the Virginia shoreline. The Authority does not seek an

increase in its appropriation of water.

For more than twenty years, the Commonwealth has ig-

nored its legal obligation to control sedimentation. Since

1977, it has been “the national policy that programs for the

control of nonpoint sources of pollution be developed and

implemented in an expeditious manner... .” 33 U.S.C.

§ 1251(ay(7) (1994). This Court has explained that this pol-

icy reflects Congress’ belief that “‘it is essential that dis-

charge of pollutants be controlled at the source.” United

States v. Riverside Bay View Homes, Inc., 474 U.S. 121, 133

(1985) (quoting S. Rep. No. 92-414, at 77 (1972)).

The Clean Water Act places the burden of preventing non-

point source pollution, including urban runoff, on the states in

the first instance. The Commonwealth is required to identify

areas where nonpoint source pollution, including “construc-

tion related sources of pollution,” are present and “set forth

procedures and methods (including land use requirements) to

control to the extent feasible such sources.” 33 U.S.C.

§ 1288(b)(2)(H). Congress made grants available to the states

to assist them in this endeavor, id. at § 1288(f), and provided

technical assistance from federal agencies. Id. at

§ 1288(h)(i). In addition, “Section 1329, added to the Act in

1987, requires States to adopt nonpoint source management

programs and similarly provides for grants to encourage re-

duction in nonpoint source pollution.” Oregon Natural Des-

ert Ass'n v. Dombeck, 172 F.3d 1092, 1097 (9th Cir. 1998).

States are required to establish water quality standards that

are designed, inter alia, to protect the water body's “use and

value for public water supplies,” 33 U.S.C. § 1313(c)2)A),

and, where those standards are not met, states are required to

set a total maximum daily load (“TMDL”) for pollutants, in-

cluding sediment, that would allow those standards to be

achieved. 33 U.S.C. § 1313(d)(2). If EPA rejects the state's

designation of an area where a TMDL is needed or the

6

proposed TMDL for that area, EPA is required to make those

determinations. 33 U.S.C. § 1313(d)(2).

Once an area is designated and a TMDL is set, the Com-

monwealth must then devise and implement a plan that will

bring the water body into compliance with the TMDL. 33

U.S.C. § 1313(e). EPA's anti-degradation policy prevents

back-sliding after the standards are met by requiring, inter

alia, that the Commonwealth use “all cost-effective and rea-

sonable best management practices for nonpoint source

control.” 40 C.F.R. § 131.12(a)(2); see also 33 USC.

§ 1313(d 4B).

TMDLs are highly effective in restoring water quality.

“Congress and the EPA have already determined that estab-

lishing TMDLs is an effective tool for achieving water qual-

ity standerds in waters impaired by non-point source pollu-

tion.” Araska Ctr. for the Env't v. Browner, 20 F.3d 981, 985

(9th Cir. 1994); see American Iron and Steel Inst. v. EPA, 115

F.3d 979, 1002 (D.C. Cir. 1997) (endorsing TMDL for the

Great Lakes).

Although the Commonwealth concedes that nonpoint

source pollution into Sugarland and Broad Runs compromises

the Potomac’s “use and value for public water supplies.” 33

U.S.C. § 1313(ch2M A), it has not implemented the required

controls. The Commonwealth's Bill of Complaint makes this

concession explicit: “[t}he Authority's present intake at the

Virginia shoreline is adversely affected by runoff from up-

stream tributaries following local rainstorms. . . . These con-

ditions significantly interfere with the smooth operation of the

water treatment plant... .” (Bill of Compl. at 10, 4 21.)

The Commonwealth's failure to comply with the Clean

Water Act is a pervasive problem. Although “Virginia was to

have submitted initial TMDLs to EPA by June 26, 1979, and

thereafter from ‘time to time, ” American Canoe Ass'n v.

EPA, 54 F. Supp.2d 621, 623 (E.D. Va. 1999), the

7

Commonwealth never has taken this obligation seriously. As

one court recently discovered, “[iJn the nearly twenty years

that have elapsed since the initial 1979 deadline, Virginia ei-

ther has submitted no TMDLs or has submitted a single

TMDL for one small tributary in the state, and EPA has never

established any TMDL for any of Virginia's waters.” Jd. at

624.

After twenty years of noncompliance by the Common-

wealth, environmental organizations sued EPA to set TMDLs

for Virginia. /d. at 622. The District Court approved a con-

sent decree that establishes a time-table for the Common-

wealth to submit TMDLs and that compels EPA to issue

TMDLs if the Commonwealth misses those deadlines. /d. at

629. As a result of the consent decree and the Common-

wealth’s acknowledgment of sedimentation problems in Sug-

arland and Broad Run, the Commonwealth is obligated to im-

plement a program to control the sedimentation.

Despite the existence of the consent decree, the Authority

evidently questions the Commonwealth's intention of honor-

ing its obligations under the Clean Water Act. In assessing its

future water needs, the Authority's model assumes that the

sedimentation levels affecting the current shoreline intake

will remain constant over the next 40 years. (Draft Response

to U.S. Army Corps of Engineers Regarding U.S. Fish and

Wildlife Service Comments on Joint Application for Permit

for Potomac Mid-River Intake (Dec. 1996) (App. E).) Con-

sequently, the Authority proposes to spend $5.3 million on a

new intake in the middle of the river to avoid the sediment

contamination along the Virginia shoreline. /d. If the Com-

monwealth controlled sedimentation to even a modest degree,

the Authority's report demonstrates that the intake would nut

be cost-justified.*

* The Authority's study estimates the present value of solids and han-

dling costs for the next 40 years at $7.2 million and the cost of construct-

ing the proposed intake at $5.3 million. (App. E.) The conclusion in the

8

Because the Authority proposes building this mid-river in-

take on soil that is both owned by and within the territorial

jurisdiction of the State of Maryland, Maryland law requires

the Authority to seek a permit from the state. The permitting

section of the Maryland Department of the Environment

(“MDE”) denied the Authority's permit as unnecessary be-

cause the Authority already provides water that meets and

exceeds all state and federal water quality standards. (Va.

App. L.)

The Authority filed an administrative appeal claiming that

it is entitled to the permit under Maryland law and pursuant to

various interstate compacts between Virginia and Maryland.

A contested case hearing was held before an Administrative

Law Judge (“ALJ”) with Maryland's Office of Administra-

tive Hearings and the ALJ will issue her opinion by June.

Once the opinion is issued, the Authority and MDE will have

the opportunity to file exceptions, and a Final Decisionmaker

from MDE is expected to make a final decision this Fall.

Either party may appeal that decision to an intermediate

appellate court based upon the record developed before the

ALJ. After exhausting state appeals, review of Compact is-

sues may be had from this Court by Certiorari.

Authority's report that the project will save $1.9 million rests upon the

assumption that the Authority's consumption of water from the shoreline

intake will increase by a factor of three and one-third and that sediment

levels will remain the same over the next 40 years. Jd. Even a modest

reduction in solids handling costs, spread out over 40 years. would elimi-

nate the narrow margin of profitability for this project.

9

SUMMARY OF THE ARGUMENT

The central question presented by this case is whether ri-

parian land owners along the Virginia side of the Potomac

River who attempt to exercise property rights in Maryland are

subject to Maryland's police power. Although Virginia views

Maryland's preliminary decision not to authorize the Author-

ity’s proposed construction of a mid-river intake on the State

of Maryland's property as “a direct challenge to Virginia's

sovereignty,” (Br. at 21) it is hard to conceive how this could

be so. The Commonwealth has no jurisdiction in the State of

Maryland, the undisputed site of the proposed intake con-

struction.

This Court should refuse to entertain the Commonwealth's

suit because its original “jurisdiction is of so delicate and

grave a character that it was not contemplated that it would be

exercised save when the necessity was absolute and the mat-

ter in itself properly justiciable.” Louisiana v. Texas, 176

U.S. 1, 15 (1900). None of the Commonwealth's legal claims

are ripe, and the Commonwealth would lack standing to bring

them if they were. No Virginia riparian land owner is seeking

to increase its appropriation of water from the Potomac, and

only the Authority has proposed a construction project in the

river. The Authority needs both a permit from MDE and a

federal permit to begin construction, and neither has made a

final permitting decision. Consequently, no ripe controversy

now exists and it is uncertain whether one ever will.

In the event that a legal claim does become ripe, the Com-

monwealth is not the proper party to assert it. The rights that

the Commonwealth asserts are not its own rights, but the

rights of third-party riparian land owners on the Virginia side

of the Potomac. The Commonwealth has not established that

it has suffered or could ever suffer any direct injury as a result

of the claims it makes here. The real party in interest would

be the Virginia riparian land owner who has been denied a

permit by Maryland.

10

This Court repeatedly has held that a state cannot manipu-

late the original jurisdiction of this Court by suing on behalf

of the real party in interest. If this Court were to permit the

Commonwealth to bring a parens patriae action, it would

distort the Article III distinction between suits brought by

“Citizens” and suits brought by “States.” It also would cir-

cumvent the abstention doctrine that prevents the Authority

from bringing a collateral federal suit after initiating litigation

in Maryland, and would subject ANS* Virginia members to a

class representative adverse to their interests.

I. The Commonwealth’s Legal Claims Are Not Ripe.

The Commonwealth is frustrated that the Authority's legal

claims have not yet been resolved in the Maryland litigation,

and is seeking to litigate the Authority's claims collaterally

before this Court. No case or controversy has arisen for Arti-

cle III purposes, however, precisely because MDE has not

decided whether or not to issue the permit. In the event that

the Authority's contentions are as meritorious as the Com-

monwealth contends, there will be no need for the Court to

exercise its jurisdiction. Nevertheless, it is important to rec-

ognize that no claim for a mid-river intake will be ripe until

the Authority also obtains a permit from the Army Corps of

Engineers (“ACE”).

The Commonwealth also seeks to raise its legal claims by

arguing that Virginia rmparians are not obligated to seek

Maryland's consent before increasing their appropriation of

water from the Potomac. It would be frivolous for the Com-

monweailth to assert that these claims are ripe. The Com-

monwealth has failed to identify any Virginia riparian land-

owner who is now seeking or who intends to appropriate ad-

ditional water from the Potomac in the near future.

A. No Controversy Concerning the Authority's Pro-

posed Intake Will Be Ripe Unless ACE Issues Its Own

Permit.

The Commonwealth apparently misunderstands the status

of the Authority's dredge and fill permit before ACE. See 33

U.S.C. § 1344 (requiring an ACE permit). The Common-

wealth advised the Court that “[t}he United States Army

Corps of Engineers gave its approval for the Authority's proj-

ect more than three years ago, subject only to a successful

resolution of the Maryland permit question.” (Br. at |.) In

truth, the previously-issued permit was suspended by ACE

more than two years ago. (Letter from Reardon to Sultan of

1/28/98 (App. F) (“Based on this new information, | have no

recourse other than to suspend your Department of the Army

permit. .. .”).) ACE emphasized that “[flollowing this sus-

pension, a decision will be made to either reinstate, modify,

or revoke the subject permit.” /d.

ACE also has made it clear to ANS* counsel that the permit

will not be reinstated as a matter of right if MDE ultimately

issues a waterway construction permit. After ANS learned

that ACE had approved the initial permit without following

applicable procedure, ANS* counsel wrote to ACE requesting

that the permit be revoked on numerous legal grounds. (Let-

ter from Dubrowski to Zirschky of 12/22/97 (App. G).) ACE

responded by informing ANS* counsel that the issue had been

mooted because ACE already had suspended the permit.

ACE then advised ANS* counsel that “[{i}f the county resolves

the State's concerns and obtains required State permits, the

District Engineer will fully consider the concerns expressed

in your letter before making any decision to reinstate, modify,

or revoke the Department of the Army permit.” (Letter from

Zirschky to Dubrowski of 3/5/98 (App. H).)°

* In addition to the legal obligation for ACE to make a separate permit-

ting decision now that the permit has been suspended, 33 C.F.R.

12

The fact that the Authority lacks the necessary authoriza-

tion to construct the intake, regardless of any action taken or

not taken by Maryland, demonstrates that this claim is not

ripe. In Anderson v. Green, 513 U.S. 557 (1995), this Court

dismissed a claim as not ripe under similar circumstances. In

Anderson, this Court took jurisdiction to consider whether

California's proposal to reduce Aid to Families with Depend-

ent Children (“AFDC”) payments to new residents violated

the right to interstate travel. /d. at 559. For California to es-

tablish a payment differential for new residem: receiving

AFDC payments, Health and Human Services .“HHS”™) had

to grant a waiver and such a waiver had been granted to Cali-

fornia. /d. After the Court of Appeals had ruled in that case

below, however, it vacated the HHS waiver in a separate pro-

ceeding. /d. Recognizing that no differential in payments

would be made “[a]bsent favorable action by HHS on a re-

newed application for a waiver,” this Court held that there is

“no live dispute now, and whether one will arise in the future

is conjectural.” /d.

Similarly, in Ohio Forestry Ass'n v. Sierra Club, 523 U.S.

726 (1998), this Court rejected a challenge to a Forest Service

management plan as allowing excessive logging because it

was unclear whether future permits that were required for the

logging to take place ultimately would be issued. The general

Forest Service management plan would have allowed the log-

ging in question, but the plan did “not itself authorize the

cutting of any trees.” /d. at 729. Because logging would re-

quire compliance with the management plan and future site-

specific permitting, this Court held that legal challenges

would have to be made to the site-specific permits that would

§ 325.7ic). ACE's offer of a hearing to ANS would obligtte ACE to pro-

vide a fair hearing even if the offer was made only voluntarily. Vitarelli v.

Seaton, 359 U.S. 535, 539-40 (1959). Service v. Dulles, 354 U.S. 363, 388

(1957).

13

come later — “at a time when harm is more imminent and

more certain.” /d. at 734; see also New Hanover Township v.

United States Army Corps of Eng'rs., 992 F.2d 470, 472-73

(3d Cir. 1993) (rejecting a challenge to a federal permit be-

Cause no permit was obtained from the state).

As in Anderson and Ohio Forestry, the Commonwealth's

claim against Maryland concerning the waterway construc-

tion permit is not ripe because future regulatory action is nec-

essary for the project to take place. Until the Authority ob-

tains the necessary permit to proceed with its project from

ACE, there is no ripe claim against Maryland.

B. The Commonwealth's Request for an Advisory

Opinion Concerning Water Appropriation Is Not Ripe.

Out of apparent concern that this Court would not take ju-

nsdiction over the MDE permitting claim that already is be-

ing litigated in Maryland, the Commonwealth adds a request

for this Court to rule that Maryland cannot regulate water

withdrawals from the Potomac by Virginia riparians. The

Commonwealth offers no evidence that any sort of contro-

versy exists between Virginians and Maryland concerning

water apportionment.

The Commonwealth rightly concedes that “Maryland, to

date, has not denied any Virginia user a permit to appropriate

water from the Potomac River. ...” (Br. at 29.) Neverthe-

less, the Commonwealth complains that, if invoked, Mary-

land's permitting process for such appropriations is burden-

some and time conSuming. The Commonwealth has not

identified any water appropriation permits that are pending

and it is not clear that any will be sought in the near future.

Consequently, no claim for appropriation is ripe. See e.g.,

New York vy. Illinois, 274 U.S. 488, 490 (1927) (refusing to

decide “abstract questions respecting the right of the plaintiff

state and her citizens to use the waters” for possible future

projects sometime “in the indefinite future”).

14

Il. The Commonwealth Lacks Parens Patriae Stand-

ing to Pursue The Authority’s Claim for a Construction

Permit.

The Commonwealth has no legally protected interest con-

cerning the Authority's claim for a waterway construction

permit, but is merely lending its name to the Authority in an

effort to manipulate a forum before this Court where the

Authority's claims can be heard. By its express terms, the

Compact provision that the Commonwealth relies upon deal-

ing with the “privilege” of making improvements in the river

was given to the “citizens of each state . . . in the shores of the

Patowmack river adjoining their lands.” (Va. App. A (em-

phasis added).) Those riparian land owners are perfectly ca-

pable of enforcing their own rights. Indeed, the Authority has

done so. The Authority requested the permit on its own be-

half and, after the preliminary denial of the permit by MDE, it

initiated litigation before a Maryland ALJ to obtain the per-

mit. Plainly, it is the Authority and not the Commonwealth

that is the real party in interest.

A. Allowing the Commonwealth to Invoke Original

Jurisdiction on Behalf of the Real Party in Interest Would

Distort the Article III Jurisdiction of the Federal Courts. —

In attempting to step into the shoes of the Authority, the

Commonwealth seeks to invoke the jurisdiction of this Court

by arguing that a state can become the real party in interest

whenever it chooses. For federal jurisdiction, the identity of a

state as the real party in interest is of the utmost importance.

Ordinary litigants typically acquire federal jurisdiction only

when their suits involve a federal question, 28 U.S.C. § 1331,

or are diversity actions where the matter in controversy ex-

ceeds $75,000, § 1332. Even then, jurisdiction is limited to

the lower federal courts. By contrast, original jurisdiction

exists in this Court “in all Cases . . . in which a State shall be

a Party,” U.S. Const., Art. III, § 2, cl. 2, regardless of whether

a federal question is present or the monetary value at issue.

15

Moreover, “the original jurisdiction of this court is exclusive

over suits between states, though not exclusive over those

between a state and citizens of another state.” Louisiana, 176

U.S. at 16; compare 28 U.S.C. § 1251(a) (exclusive original

jurisdiction for disputes between states) with § 1251(b)\3)

(original, but not exclusive, jurisdiction in disputes between a

State and citizens of another state or aliens).

Because of the constitutional necessity of separating cases

involving “States” from those involving private “Citizens,” it

has “become settled doctrine that a State has standing to sue

only when its sovereign or quasi-sovereign interests are im-

plicated and it is not merely litigating as a volunteer the per-

sonal claims of its citizens.” Pennsylvania v. New Jersey,

426 U.S. 660, 664 (1976); see Alfred L. Snapp & Sons, Inc. v.

Puerto Rico, 458 U.S. 592, 602 (1982); Maryland, 451 U.S.

at 737 (“A State is not permitted to enter a controversy as a

nominal party in order to forward the claims of individual

citizens.”); Hawaii v. Standard Oil of California, 405 U.S.

251, 258 n. 12 (1972) (“[T}he State must bring an action on

its own behalf and not on behalf of particular citizens.”);

State of Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387,

395-96 (1938); Oklahoma v. Atchison, Topeka & Santa Fe

Ry. Co., 220 U.S. 277, 286-89 (1911); Louisiana, 176 U.S. at

16. The Commonwealth cannot circumvent this requirement

by supplementing the Authority's claims with “abstract ques-

tions of political power, of sovereignty, of government.”

Massachusetts v. Mellon, 262 U.S. 447, 485 (1923). This

Court has concluded that

if, by the simple expedient of bringing an action in the

name of a State, this Court's original jurisdiction could

be invoked to resolve what are, after all, suits to redress

private grievances, our docket would be inundated.

And, more importantly, the critical distinction, articu-

lated in Art. III, § 2, of the Constitution, between suits

16

brought by ‘Citizens’ and those brought by ‘States’

would evaporate.

Pennsylvania, 426 U.S. at 665-66.

Having initiated litigation in Maryland, the Authority

would be barred from raising these same issues in a collateral

federal suit under numerous abstention doctrines, including

Railroad Comm'n v. Pullman Co., 312 U.S. 496, 500 (1941),

Burford v. Sun Oil Co., 319 U.S. 315, 334-35 (1943),

Younger v. Harris, 401 U.S. 37, 43 (1971), and their progeny.

The principles of comity toward state tribunals that animate

these doctrines would be circumvented if they could be

avoided simply by having the Commonwealth reassert the

Authority's arguments through a collateral proceeding in this

Court.

B. The Commonwealth Is an Inappropriate Parens

Patriae Class Representative.

The Commonwealth's assertion of parens patriae turns the

doctrine on its head. Applying parens patriae here would not

give the Commonwealth the ability to vindicate the interests

of people who cannot defend themselves. As a practical

matter, the Commonwealth's position would eliminate any

viable forum for the Virginia riparians it seeks to help. If the

Commonwealth were found to be the real party in interest,

and not the riparian seeking a permit, 28 U.S.C. § 125I(a)

would strip all courts but this one of jurisdiction to hear legal

challenges to a permit denial by Maryland. This Court cannot

® This Court also repeatedly has expressed its concern that the Eleventh

Amendment not be circumvented by allowing a state to sue another state

on behalf of its citizens. See ¢.g.. Maryland. 451 U.S. at 745 n.21 (noting

that the Eleventh Amendment is violated “if the plaintiff State is actually

suing to recover for injuries to specific individuals”). Standard Oil, 405

U.S. at 259 n.12, Cook, 304 U.S. at 392-93.

17

hear all such claims, which would leave the majority of Vir-

ginia riparians without any judicial remedy. Mississippi v.

Louisiana, 506 U.S. 73, 77 (1992) (recognizing that the Court

may decline to hear cases within its exclusive jurisdiction).

The Commonwealth's position also is antagonistic to the

interests of Virginia riparians because it is responsible for the

nuisance that affects their property. Equity does not allow a

wrong-doer to represent its injured in shifting the responsibil-

ity for the injury to a third-party, particularly when the re-

quested relief is incomplete. The Commonwealth should

honor its own legal obligations and control nonpoint sources.

Applying parens patriae standing also would bind an

enormous class to a litigating position that is hostile to the

interests of many of its class members, including ANS° Vir-

ginia members who are customers of the Authority (App. C)

and riparians on the Potomac. (App. D.); see also supra note

2 (listing cases finding parens patriae actions binding on the

State's citizens). Allowing direct actions by individuals, like

the one the Authority is pursuing, or class actions that provide

class members with an adequate representative and an op-

portunity to opt out are clearly preferable. California y.

Frito-Lay, Inc., 474 F.2d 774, 776 n.9 (9th Cir. 1973).

C. The Commonwealth Lacks A Quasi-Sovereign In-

terest That Would Support Parens Patriae Standing,

The Commonwealth does not claim standing on the basis

of any direct injury to itself, and its claim of parens patriae

standing on behalf of the people of Northern Virginia is not

convincing. According to the Commonwealth, “{a]lthough it

is the Authority that is seeking to construct the offshore in-

take, the Commonwealth of Virginia has a substantial interest

in the outcome of this suit that entitles it to bring this original

action.” (Br. at 22 n.8.) The only support the Common-

wealth offers to buttress this claim are citations to two equita-

ble apportionment cases. /d. (citing Colorado v. New Mexico,

18

459 U.S. 176 (1982) and United States v. Nevada, 412 U.S.

534 (1973)).

ANS does not question the Commonwealth's ability to as-

sert parens patriae in a proper case for equitable apportion-

ment, but this is not such a case. This Court never has ap-

plied the equitable apportionment doctrine to a, river, like the

Potomac, that is owned almost exclusively by one state.

Moreover, the Commérwealth has assented to Maryland's

jurisdiction to decide appropriation for more than 30 years,

and this has become the settled course of conduct under the

Compact. See Nebraska v. Wyoming, 507 U.S. 584, 595

(1993) (acquiescence is binding); Texas v. New Mexico, 462

U.S. 554, 568 (1983) (compact displaces equitable appor-

tionment).

In addition, there are no allegations in this case that Vir-

ginians are being denied their fair share of waters from the

Potomac. The Commonwealth cannot identify even a single

Virginia riparian who has a pending appropriation request

from Maryland, and the Commonwealth concedes that

Maryland never has denied such a request. (Br. at 29.)

In any event, the Commonwealth cannot leverage its

standing claim for equitable apportionment to obtain standing

to bring the Authority's claim for a construction permit. See

Friends of the Earth, Inc. v. Laidlaw Envti. Servs., Inc., 120

S.Ct. 693, 706 (2000) (“[A] plaintiff must demonstrate

standing separately for each form of relief sought.”). In the

Maryland litigation, the Authority itself explicitly declared

that “[bJecause the Authority does not seek an increase in its

water appropriation authorization in this proceeding, the

quantity of water to be taken from the Potomac in the future

is irrelevant.” (Pre-Hearing Brief of Fairfax County Water

Authority (App. I at 47a-48a).)” The Authority's existing

water appropriation permit allows it to make withdrawals

from either the current shoreline intake or the proposed mid-

river intake. /d. at 47a. The Authority also claimed that the

capacity of the treatment plant would prevent it from in-

19

creasing its appropriation. /d. at 48a. (“[T]he mixing chamber

and conduit establish a ‘bottleneck’ and physically limit in-

creases in the maximum intake capacity beyond that of the

existing intake.”’).

Finally, the Commonwealth does not assert standing on the

basis of potential harm from Cryptosporidium or Giardia, and

this Court should not be concerned by the alarmist claims as-

serted in the Commonwealth's statement of facts. (Br. at 11.)

Contrary to the Commonwealth's suggestion, there is no evi-

dence that consumers of the Authority's water are threatened

by either Cryptosporidium or Giardia and there is no evi-

dence that moving the intake would reduce any risk that may

exist.’ 1.2 million people consume the Authority's water

every day and have done so for the four years since the con-

struction permit was requested, yet the Commonwealth has

not identified a single person to have been affected by Cryp-

tosporidium or Giardia from drinking the Authority's water.

This is not surprising. The Authority operates a state-of-the-

art facility that should eliminate virtually all Cryptosporidium

and Giardia with a combination of filtration, chlorination and

ozonation. Neither Cryptosporidium nor Giardia even have

been detected in the water the Authority distributes to con-

sumers, and the Commonwealth's brief is devoid of any

” The water at the center of the river is more likely to contain Crypto-

sporidium parvum, the only species of Cryptosporidum known to harm

humans, than waters along the shore. C. parvum is passed by mammalian

waste, which is less likely to be in urban runoff from Sugarland and Broad

Runs than waters from the middle of the river. More likely sources of C.

Parvum do exist farther up the river, such as wastewater treatment dis-

charge points and animal farms, and those waters are deflected from the

shoreline intake by the waters from Sugarland and Broad Run. Conse-

quently, by moving the intake to the center of the river. the Authority is

more likely to withdraw water contaminated by C. parvum. The Com-

monwealth does not even suggest that there would be less Giardia at the

center of the river.

20

evidence to the contrary. As the Commonwealth reminds

us, “the Authority currently produces finished drinking water

that complies with all federal and state water quality stan-

dards ....” (Br. at 11.) The Authority itself does not appear

seriously concerned as it has not issued boil alerts or even

tarzeted warnings to persons with compromised immune

systems.

If made, the Commonwealth could not demonstrate parens

patriae standing on the basis of these claims. “Before this

Court can be moved to exercise its extraordinary power under

the Constitution to control the conduct of one state at the suit

of another, the threatened invasion of rights must be of a seri-

ous magnitude and it must be established by clear and con-

vincing evidence.” New York v. New Jersey, 256 U.S. 296,

309 (1921); see Ohio v. Wyandotte Chems. Corp., 401 U.S.

493, 501 (1971) (“History reveals that the course of this

Court's prior efforts to settle disputes regarding interstate air

and water pollution has been anything but smooth. . . . The

solution finally grasped was to saddle the party seeking relief

with an unusually high standard of proof... .”). In addition,

“[t}he injury or threat of injury must be both ‘real and imme-

diate,” not ‘conjectural’ or hypothetical, “ O'Shea v.

Littleton, 414 U.S. 488, 494 (1974), and “it must be ‘likely,’

as opposed to merely ‘speculative,’ that the injury will be ‘re-

dressed by a favorable decision. " Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992). The purported threat

from Cryptosporidium and Giardia comes no where close to

satisfying this standard.

CONCLUSION

For the foregoing reasons, the Audubon Naturalist Society

respectfully requests that this Court grant its motion for leave

to file an amicus curiae brief and deny the Commonwealth

leave to file a bill of complaint.

Respectfully submitted,

KATHLEEN A. BEHAN

CHRISTOPHER D. MAN *

ARNOLD & PORTER

555 Twelfth Street, N.W.

Washington, D.C. 20004

(202) 942-5616

Attorneys for Amicus Curiae

Audubon Naturalist Society

*Counsel of Record

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