SOUTH CAROLINA v. NORTH CAROLINA
No. 138, Orig.
Supreme Court of the United States
Argued October 13, 2009-Decided January 20, 2010
558 U.S. 256
David C. Frederick argued the cause for plaintiff. With him on the briefs were Henry Dargan McMaster, Attorney General of South Carolina, John W. McIntosh, Chief Deputy Attorney General, Robert D. Cook, Assistant Deputy Attorney General, T. Parkin Hunter and Leigh Childs Cantey, Assistant Attorneys General, Scott H. Angstreich, Scott K. Attaway, and Michael K. Gottlieb.
Eric D. Miller argued the cause for the United States as amicus curiae. On the brief were then-Acting Solicitor General Kneedler, Acting Assistant Attorney General Cruden, William M. Jay, and K. Jack Haugrud.
H. Christopher Bartolomucci argued the cause for the intervention movants. With him on the brief for the City of Charlotte were James T. Banks, Adam J. Siegel, Parker D. Thomson, DeWitt F. McCarley, and H. Michael Boyd. Thomas C. Goldstein, Troy D. Cahill, James W. Sheedy, and Susan E. Driscoll filed a brief for the Catawba River Water Supply Project. Carter G. Phillips, Virginia A. Seitz, and Garry S. Rice filed a brief for Duke Energy Carolinas, LLC.
JUSTICE ALITO delivered the opinion of the Court.
The State of South Carolina brought this original action against the State of North Carolina, seeking an equitable apportionment of the Catawba River. We appointed a Special Master and referred the matter to her, together with the motions of three nonstate entities seeking to intervene in the dispute as parties. South Carolina opposed the motions. After holding a hearing, the Special Master granted the motions and, upon South Carolina‘s request, memorialized the reasons for her decision in a First Interim Report. South Carolina then presented exceptions, and we set the matter for argument.
Two of the three proposed intervenors have satisfied the standard for intervention in original actions that we articulated nearly 60 years ago in New Jersey v. New York, 345 U. S. 369 (1953) (per curiam). Accordingly, we overrule South Carolina‘s exceptions with respect to the Catawba River Water Supply Project (hereinafter CRWSP) and Duke Energy Carolinas, LLC (hereinafter Duke Energy), but we sustain South Carolina‘s exception with respect to the city of Charlotte, North Carolina (hereinafter Charlotte).
I
A
We granted leave for South Carolina to file its complaint in this matter two years ago. South Carolina v. North Carolina, 552 U. S. 804 (2007). The gravamen of the complaint is that North Carolina has authorized upstream transfers of water from the Catawba River basin that exceed North Carolina‘s equitable share of the river. It has done so, according to the complaint, pursuant to a North Carolina statute that
South Carolina seeks relief in the form of a decree that equitably apportions the Catawba River between the two States, enjoins North Carolina from authorizing transfers of water from the Catawba River exceeding that State‘s equitable share, and declares North Carolina‘s permitting statute invalid to the extent it is used to authorize transfers of water from the Catawba River that exceed North Carolina‘s equitable share. See generally Complaint, Prayer for Relief ¶¶ 1-3. The complaint does not specify a minimum flow of water that would satisfy South Carolina‘s equitable needs, but it does offer a point of reference. In a recent “multi-stakeholder negotiation process” involving the Federal Energy Regulatory Commission (hereinafter FERC), Duke Energy, and various groups from both States, it was agreed, according to the complaint, that South Carolina should receive from the Catawba River a continuous flow of water of no less than 1,100 cubic feet per second, or about 711 mgd. Complaint ¶ 14.
Shortly after we granted leave to file the complaint, two of the entities named in the complaint-the CRWSP and Duke Energy-filed motions for leave to intervene as parties. The CRWSP sought leave to intervene as a party-defendant, asserting its interest as a “riparian user of the Catawba River” and claiming that this interest was not adequately represented because of the CRWSP‘s “interstate nature.” Motion of CRWSP for Leave To Intervene and Brief in Support of Motion 8, 9. Specifically, the CRWSP noted that it is a bistate entity that is jointly owned and regulated by, and supplies water to, North Carolina‘s Union County and South Carolina‘s Lancaster County. Id., at 9. Duke Energy sought leave to intervene and file an answer, asserting an interest as the operator of 11 dams and reservoirs on the Catawba River that control the river‘s flow, as the holder of a 50-year license1 governing Duke Energy‘s hydroelectric
One month later, a third entity named in the complaint, the city of Charlotte, also sought leave to intervene as a party-defendant. In its brief, Charlotte asserted an interest, both as the holder of a permit authorizing the transfer of 33 mgd from the Catawba River basin-the largest single transfer identified in the complaint-and as the potential source of the 10 mgd transfer approved for the cities of Concord and Kannapolis. Motion for Leave To Intervene of City of Charlotte, North Carolina, and Brief in Support of Motion 5, 7.2 Charlotte argued that North Carolina could not represent the city‘s interests effectively because the State was dutybound to represent the interests of all North Carolina users of the Catawba River‘s water, including users whose interests were not aligned with Charlotte‘s. Id., at 17. South Carolina also opposed Charlotte‘s motion, and we referred it to the Special Master. 552 U. S. 1254 (2008).
The Special Master held a hearing and issued an order granting all three motions for leave to intervene. At South Carolina‘s request, the Special Master set forth her findings and decision as a First Interim Report, and it is this Report to which South Carolina now presents exceptions.
The Special Master recognized that this Court has exercised jurisdiction over nonstate parties in original actions between two or more States. She also recognized that in New Jersey v. New York, 345 U. S. 369, the Court considered the “appropriate standard” for a nonstate entity‘s motion to intervene in an original action. First Interim Report of Special Master, O. T. 2008, No. 138, Orig., p. 12 (First Interim Rept.). But in attempting to give context to our standard, she looked beyond intervention and considered original actions in which the Court has allowed nonstate entities to be named as defendants by the complaining State. From those examples, the Special Master “distilled the following rule” governing motions to intervene in original actions by nonstate entities:
“Although the Court‘s original jurisdiction presumptively is reserved for disputes between sovereign states over sovereign matters, non-state entities may become parties to such original disputes in appropriate and compelling circumstances, such as where the non-state entity is the instrumentality authorized to carry out the wrongful conduct or injury for which the complaining state seeks relief, where the non-state entity has an independent property interest that is directly implicated by the original dispute or is a substantial factor in the dispute, where the non-state entity otherwise has a ‘direct stake’ in the outcome of the action within the meaning of the Court‘s cases discussed above, or where, together with one or more of the above circumstances, the
presence of the non-state entity would advance the ‘full exposition’ of the issues.” Id., at 20-21.
Applying this broad rule, the Special Master found that each proposed intervenor had a sufficiently compelling interest to justify intervention. The Special Master rejected South Carolina‘s proposal to limit intervention to the remedy phase of this litigation and recommended that this Court grant the motions to intervene.
II
A
Participation by nonstate parties in actions arising under our original jurisdiction is not a new development.
This Court likewise has granted leave, under appropriate circumstances, for nonstate entities to intervene as parties in original actions between States for nearly 90 years. See Maryland v. Louisiana, 451 U. S. 725, 745, n. 21 (1981). In Oklahoma v. Texas, 258 U. S. 574, 581, 598 (1922), a boundary dispute that threatened to erupt in armed hostilities, the Court allowed individual and corporate citizens to intervene
In this case, the Special Master crafted a rule of intervention that accounts for the full compass of our precedents. But a compelling reason for allowing citizens to participate in one original action is not necessarily a compelling reason for allowing citizens to intervene in all original actions. We therefore decline to adopt the Special Master‘s proposed rule. As the Special Master acknowledged, the Court in New Jersey v. New York, supra, set down the “appropriate standard” for intervention in original actions by nonstate entities. First Interim Rept. 12. We believe the standard that we applied in that case applies equally well here.4
In 1929, the State of New Jersey sued the State of New York and city of New York for their diversion of the Dela
This Court denied Philadelphia leave to intervene. Pennsylvania had intervened pro interesse suo “to protect the rights and interests of Philadelphia and Eastern Pennsylvania in the Delaware River.” Id., at 374; see also New Jersey v. New York, 283 U. S. 336, 342 (1931). In view of Pennsylvania‘s participation, the Court wrote that when a State is “a party to a suit involving a matter of sovereign interest,” it is parens patriae and “must be deemed to represent all [of] its citizens.” 345 U. S., at 372-373 (quoting Kentucky v. Indiana, 281 U. S. 163, 173-174 (1930)). This principle serves the twin purposes of ensuring that due respect is given to “sovereign dignity” and providing “a working rule for good judicial administration.” 345 U. S., at 373. The Court, thus, set forth the following standard governing intervention in an original action by a nonstate entity:
“An intervenor whose state is already a party should have the burden of showing some compelling interest in his own right, apart from his interest in a class with all other citizens and creatures of the state, which interest is not properly represented by the state.” Ibid.
On several subsequent occasions the Court has reaffirmed this “general rule.” See Nebraska v. Wyoming, 515 U. S. 1, 21-22 (1995); United States v. Nevada, 412 U.S. 534, 538 (1973) (per curiam); Illinois v. Milwaukee, 406 U. S. 91, 97 (1972).
Respect for state sovereignty also calls for a high threshold to intervention by nonstate parties in a sovereign dispute committed to this Court‘s original jurisdiction. Under
That the standard for intervention in original actions by nonstate entities is high, however, does not mean that it is insurmountable. Indeed, as the Special Master correctly recognized, our practice long has been to allow such intervention in compelling circumstances. See Oklahoma v. Texas, 258 U. S., at 581. Over the “strong objections” of three States, for example, the Court allowed Indian tribes to intervene in a sovereign dispute concerning the equitable apportionment of the Colorado River. Arizona v. California, 460 U. S., at 613. The Court did so notwithstanding the Tribes’ simultaneous representation by the United States. Id., at 608-609, 612. And in a boundary dispute among Texas, Louisiana, and the United States, the Court allowed the city of Port Arthur, Texas, to intervene for the purpose of protecting its interests in islands in which the United States claimed title. Texas v. Louisiana, 426 U. S., at 466; Texas v. Louisiana, 416 U. S. 965 (1974). In both of these examples, the Court found compelling interests that warranted allowing nonstate entities to intervene in original actions in which the intervenors were nominally represented by sovereign parties.
B
1
Applying the standard of New Jersey v. New York, supra, here, we conclude that the CRWSP has demonstrated a suf-
In addition, the CRWSP relies upon authority granted by both States to draw water from the Catawba River and transfer that water from the Catawba River basin. The CRWSP draws all of its water from an intake located below the Lake Wylie dam in South Carolina. South Carolina licensed the CRWSP to withdraw a total of 100 mgd from the Catawba River and issued a certificate to the CRWSP in 1989 authorizing up to 20 mgd to be transferred out of the Catawba River basin. Id., at 6-7; Answer to Bill of Complaint ¶ 21. Lancaster County currently uses approximately 2 mgd of this amount, Union County uses approximately 5 mgd, and the remaining 13 mgd are not used at this time. CRWSP Reply 7. The CRWSP pumps Union County‘s allocation across the state border pursuant to a parallel certificate issued by North Carolina authorizing a 5 mgd transfer, ibid., and the complaint specifically identifies this transfer as contributing to South Carolina‘s harm, Complaint ¶ 21. Thus, the CRWSP‘s activities depend upon authority conferred by both States.
We are further persuaded that neither State can properly represent the interests of the CRWSP in this litigation. See New Jersey v. New York, supra, at 373. The complaint attributes a portion of the total water transfers that have harmed South Carolina to the CRWSP, yet North Carolina expressly states that it “cannot represent the interests of the joint venture.” Tr. of Oral Arg. 54. A moment‘s reflection reveals why this is so. In this dispute, as in all disputes over limited resources, each State maximizes its equitable share of the Catawba River‘s water only by arguing that the other State‘s equitable share must be reduced. See, e. g., Colorado v. New Mexico, 459 U. S. 176, 186-187 (1982). It is thus likely that North Carolina, in response to South Carolina‘s demand for a greater share of the Catawba River‘s water, will take the position that downstream users-such
Accordingly, we believe that the CRWSP should be allowed to intervene to represent its own compelling interests in this litigation. We thus overrule South Carolina‘s exception.
2
We conclude, as well, that Duke Energy has demonstrated powerful interests that likely will shape the outcome of this litigation. To place these interests in context, it is instructive to consider the “flexible” process by which we arrive at a “‘just and equitable’ apportionment” of an interstate stream. Colorado v. New Mexico, supra, at 183. We do not approach the task in formulaic fashion, New Jersey v. New York, 283 U. S., at 343, but we consider “all relevant factors,” including, but not limited to:
“‘physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established
uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, [and] the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former.‘” Colorado v. New Mexico, supra, at 183 (quoting Nebraska v. Wyoming, supra, at 618).
In performing this task, there is no substitute for “‘the exercise of an informed judgment,‘” Colorado v. New Mexico, supra, at 183, and we will not hesitate to seek out the most relevant information from the source best situated to provide it. See Maryland v. Louisiana, 451 U. S., at 745, n. 21 (allowing intervention of private pipeline companies “in the interest of a full exposition of the issues“).
With these considerations in mind, we turn to Duke Energy‘s asserted interests. Duke Energy operates 11 dams and reservoirs in both States that generate electricity for the region and control the flow of the river. The complaint itself acknowledges the relationship between river flow and Duke Energy‘s operations, noting that a severe drought that ended in 2002 forced Duke Energy to “reduce dramatically” its hydroelectric power generation from the Catawba River. Complaint ¶ 17(c). It is likely that any equitable apportionment of the river will need to take into account the amount of water that Duke Energy needs to sustain its operations and provide electricity to the region, thus giving Duke Energy a strong interest in the outcome of this litigation. See Colorado v. New Mexico, supra, at 188 (noting the appropriateness of considering “the balance of harm and benefit that might result” from a State‘s proposed diversion of a river). There is, moreover, no other similarly situated entity on the Catawba River, setting Duke Energy‘s interests apart from the class of all other citizens of the States. See New Jersey v. New York, 345 U. S., at 373.
Just as important, Duke Energy has a unique and compelling interest in protecting the terms of its existing FERC
We also have little difficulty in concluding that neither State sufficiently represents these compelling interests. Neither State has signed the CRA or expressed an intention to defend its terms. To the contrary, North Carolina has expressed an intention to seek its modification. Tr. of Oral Arg. 51-52. Given the importance of Duke Energy‘s interests and their relevance to our ultimate decision, we believe these interests should be represented by a party in this action, and we find that neither State is situated to do so properly. We believe that Duke Energy should be permitted to represent its own interests.
For these reasons, we agree with the Special Master that Duke Energy should be permitted to intervene, and we overrule South Carolina‘s exception in that regard.
We conclude, however, that Charlotte has not carried its burden of showing a sufficient interest for intervention in this action. Charlotte is a municipality of North Carolina, and for purposes of this litigation, its transfers of water from the Catawba River basin constitute part of North Carolina‘s equitable share. While it is true that the complaint names Charlotte as an entity authorized by North Carolina to carry out a large transfer of water from the Catawba River basin, the complaint does not seek relief against Charlotte directly. Rather, the complaint seeks relief against all North Carolina-authorized transfers of water from the Catawba River basin, “past or future,” in excess of North Carolina‘s equitable share. Complaint, Prayer for Relief ¶ 2. Charlotte, therefore, occupies a class of affected North Carolina users of water, and the magnitude of Charlotte‘s authorized transfer does not distinguish it in kind from other members of the class. See New Jersey v. New York, supra, at 373, and n. (noting that Philadelphia represented half of Pennsylvania‘s citizens in the watershed). Nor does Charlotte represent interstate interests that fall on both sides of this dispute, as the CRWSP does, such that the viability of Charlotte‘s operations in the face of this litigation is called into question. Its interest is solely as a user of North Carolina‘s share of the Catawba River‘s water.
Charlotte‘s interest falls squarely within the category of interests with respect to which a State must be deemed to represent all of its citizens. As we recognized in New Jersey v. New York, a State‘s sovereign interest in ensuring an equitable share of an interstate river‘s water is precisely the type of interest that the State, as parens patriae, represents on behalf of its citizens. See also United States v. Nevada, 412 U. S., at 539; Nebraska v. Wyoming, 325 U. S., at 616. That is why, in New Jersey v. New York, supra, we required that a proposed intervenor show a compelling interest “in his own right,” distinct from the collective interest of “all other citi-
North Carolina‘s own statements only reinforce this conclusion. North Carolina has said that it will defend Charlotte‘s authorized 33 mgd transfer. Tr. of Oral Arg. 52-53. The State expressly disagrees with Charlotte‘s assertion that the city‘s interest is not adequately represented by the State. Brief for State of North Carolina in Opposition to Plaintiff‘s Exceptions 22. Indeed, in response to Charlotte‘s motion to intervene, North Carolina wrote the following:
“[T]he State must represent the interests of every person that uses water from the North Carolina portion of the Catawba River basin. In fact, the State has a particular concern for its political subdivisions, such as Charlotte, which actually operate the infrastructure to provide water to the State‘s citizens. . . . The State has every reason to defend the [transfers] that it has authorized for the benefit of its citizens. The State cannot agree with any implication that because it represents all of the users of water in North Carolina it cannot, or will not[,] represent the interests of Charlotte in this litigation initiated by South Carolina.” Brief for State of North Carolina in Response to City of Charlotte‘s Motion for Leave To Intervene and File Answer 1-2, ¶ 1.
These statements are consistent with North Carolina‘s role as parens patriae, and we see no reason that North Carolina cannot represent Charlotte‘s interest in this sovereign dispute. See New Jersey v. New York, 345 U. S., at 374 (noting that Philadelphia‘s interest “is invariably served by the Commonwealth‘s position“).
III
We thus overrule South Carolina‘s exceptions to the Special Master‘s First Interim Report with respect to the CRWSP and Duke Energy, but we sustain South Carolina‘s exception with respect to Charlotte.
It is so ordered.
CHIEF JUSTICE ROBERTS, with whom JUSTICE THOMAS, JUSTICE GINSBURG, and JUSTICE SOTOMAYOR join, concurring in the judgment in part and dissenting in part.
The Court correctly rejects the Special Master‘s formulation of a new test for intervention in original actions, and correctly denies the city of Charlotte leave to intervene. The majority goes on, however, to misapply our established test in granting intervention to Duke Energy Carolinas, LLC (Duke Energy), and the Catawba River Water Supply Project (CRWSP).
I
Two basic principles have guided the exercise of our constitutionally conferred original jurisdiction. The first is an appreciation that our original jurisdiction, “delicate and grave,” Louisiana v. Texas, 176 U. S. 1, 15 (1900), was granted to provide a forum for the peaceful resolution of weighty controversies involving the States. “The model case for invocation of this Court‘s original jurisdiction is a dispute between States of such seriousness that it would amount to casus belli if the States were fully sovereign.” Texas v. New Mexico, 462 U. S. 554, 571, n. 18 (1983). In determining whether to exercise original jurisdiction, we accordingly focus on “the nature of the interest of the complaining State,” and in particular the “seriousness and dignity” of the claim asserted. Mississippi v. Louisiana, 506 U. S. 73, 77 (1992) (internal quotation marks omitted).
Original jurisdiction is for the resolution of state claims, not private claims. To invoke that jurisdiction, a State “must, of course, represent an interest of her own and not merely that of her citizens or corporations.” Arkansas v. Texas, 346 U. S. 368, 370 (1953); see Kansas v. Colorado, 533 U. S. 1, 8-9 (2001); Pennsylvania v. New Jersey, 426 U. S. 660, 665 (1976) (per curiam) (It is “settled doctrine that a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens“). And in deciding whether a State meets that requirement, this Court considers whether the State is “in full control of [the] litigation.” Kansas v. Colorado, supra, at 8.
The second guiding principle is a practical one: We are not well suited to assume the role of a trial judge. See Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 498 (1971). We have attempted to address that reality by relying on the services of able special masters, who have become vitally important in allowing us to manage our original docket. But the responsibility for the exercise of this Court‘s original jurisdiction remains ours alone under the Constitution.
These two considerations—that our original jurisdiction is limited to high claims affecting state sovereignty, and that practical realities limit our ability to act as a trial court—converge in our standard for intervention in original actions. We articulated that standard in New Jersey v. New York, 345 U. S. 369, 373 (1953) (per curiam). There, we denied the city of Philadelphia‘s motion for leave to intervene in an action, to which the Commonwealth of Pennsylvania was already a party, involving the apportionment of the Delaware River. Id., at 373-374. We set out the following test for intervention in an original action: “An intervenor whose state is already a party should have the burden of showing some compelling interest in his own right, apart from his interest in a class with all other citizens and creatures of the state, which interest is not properly represented by the state.” Id., at 373.
This exacting standard is grounded on a “necessary recognition of sovereign dignity,” ibid., under which “the state, when a party to a suit involving a matter of sovereign interest, ‘must be deemed to represent all its citizens,‘” id., at 372-373 (quoting Kentucky v. Indiana, 281 U. S. 163, 173-174 (1930)). In applying that doctrine to motions to intervene, the New Jersey v. New York test precludes a State from being “judicially impeached on matters of policy by its own subjects,” and prevents the use of the Court‘s original jurisdiction to air “intramural dispute[s]” that should be settled in a different forum—namely, within the States. 345 U. S., at 373.
The New Jersey v. New York test is also “a working rule for good judicial administration.” Ibid. Without it, “there would be no practical limitation on the number of citizens, as such, who would be entitled to be made parties.” Ibid. Indeed, the Court observed that allowing Philadelphia to intervene would have made it difficult to refuse attempts to intervene by other users of water from the Delaware River, including other cities, and even “[l]arge industrial plants.” Ibid. The New Jersey v. New York test, properly applied, provides a much-needed limiting principle that prevents the expansion of our original proceedings “to the dimensions of ordinary class actions,” ibid., or “town-meeting lawsuits,” id., at 376 (Jackson, J., dissenting). See also Ohio v. Wyandotte Chemicals Corp., supra, at 504; Utah v. United States, 394 U. S. 89, 95-96 (1969) (per curiam).
II
Applying these principles, this Court has never granted a nonsovereign entity‘s motion to intervene in an equitable apportionment action. The reason is straightforward: An interest in water is an interest shared with other citizens, and is properly pressed or defended by the State. And a private entity‘s interest in its particular share of the State‘s water, once the water is allocated between the States, is an “intramural dispute” to be decided by each State on its own. New Jersey v. New York, supra, at 373.
The interests of a State‘s citizens in the use of water derive entirely from the State‘s sovereign interest in the wa
This basic principle applies without regard to whether the State agrees with and will advance the particular interest asserted by a specific private entity. The State “‘must be deemed to represent all its citizens,‘” New Jersey v. New York, supra, at 372-373 (quoting Kentucky v. Indiana, supra, at 173-174; emphasis added), not just those who subscribe to the State‘s position before this Court. The directive that a State cannot be “judicially impeached on matters of policy by its own subjects,” New Jersey v. New York, supra, at 373, obviously applies to the case in which a subject disagrees with the position of the State.
A State‘s citizens also need not be made parties to an equitable apportionment action because the Court‘s judgment in such an action does not determine the water rights of any individual citizen. We made that clear long ago in two decisions arising from the same dispute, Wyoming v. Colorado, 298 U. S. 573 (1936), and Wyoming v. Colorado, 309 U. S. 572 (1940). In those cases, Wyoming sought to enforce this Court‘s earlier decree apportioning the Laramie River. See Wyoming v. Colorado, 260 U. S. 1 (1922). We held that the decree controlled the allocation of water between Wyoming and Colorado, not within them. As we recognized, our decision apportioning the river did not “withdraw water claims dealt with therein from the operation of local laws relating to their transfer or... restrict their utilization in ways not affecting the rights of one State and her claimants as against the other State and her claimants.” 298 U. S., at 584. Thus, although the decree referred to particular uses of water in Colorado, we held that those individual uses could vary from the terms set out in the decree, so long as the total diversion of water in Colorado was no greater than the decree allowed. See id., at 584-585; 309 U. S., at 579-581. We reiterated the point in Nebraska v. Wyoming, 325 U. S. 589, 627 (1945), observing that the apportionment of a waterway between the States has only an “indirect effect” on the rights of individuals within the States.
All this explains our long history of rejecting attempts by nonsovereign entities to intervene in equitable apportionment actions. New Jersey v. New York was itself an equitable apportionment suit, and we denied intervention in that case. We have also summarily denied motions to intervene in other water disputes between the States. See Arizona v. California, 514 U. S. 1081 (1995); Arizona v. California, 345 U. S. 914 (1953); Nebraska v. Wyoming, 296 U. S. 548 (1935); Wisconsin v. Illinois, 279 U. S. 821 (1929). And we have strongly intimated in other decisions (albeit in dictum) that private entities can rarely, if ever, intervene in original actions involving the apportionment of interstate waterways. See United States v. Nevada, supra, at 538 (“[I]ndividual users of water... ordinarily would have no right to intervene in an original action in this Court“); Nebraska v. Wyoming, 515 U. S., at 22 (“We have said on many occa
The majority contends that the result in this case is not a “new development,” and that its holding is supported by “nearly 90 years” of precedent. Ante, at 264. But in support of those statements, the majority cites only four decisions in which the Court has granted a motion to intervene in an original suit—and of course none in which this Court granted the motion of a nonsovereign entity to intervene in an equitable apportionment action. The cases the majority cites demonstrate what constitutes a “compelling interest in [the intervenor‘s] own right, apart from his interest in a class with all other citizens and creatures of the state.” New Jersey v. New York, 345 U. S., at 373. But the intervenor interests in those cases were quite different from the general shared interest in water at issue here.
Take Arizona v. California, 460 U. S. 605 (1983). There we allowed several Indian Tribes to intervene in a water dispute. Id., at 615. As the Court in that case made clear, however, the Indian Tribes were allowed to intervene because they were sovereign entities. Ibid. The Court distinguished New Jersey v. New York on that very ground. See 460 U. S., at 615, n. 5.
The majority‘s reliance on Maryland v. Louisiana is equally unavailing. There, several States challenged the constitutionality of Louisiana‘s application of a tax on natural gas that was brought into that State. 451 U. S., at 728. In two sentences within a long footnote, the Court mentioned that it was permitting a group of pipeline companies to intervene and challenge the tax. Id., at 745, n. 21. The Court made clear that the pipeline companies were able to intervene in light of the particular circumstances in that case—namely, Louisiana‘s tax was “directly imposed on the owner of imported gas,” and “the pipelines most often own[ed] the gas.” Ibid. Again, an interest in a tax imposed only on discrete parties is obviously different from a general interest shared by all citizens of the State.
Charlotte, Duke Energy, and CRWSP claim a variety of specific needs for water to justify their intervention. But all those particular needs derive from an interest in the water of the Catawba River. That interest is not exclusive, but is instead shared “with all other citizens and creatures of the state.” New Jersey v. New York, 345 U.S., at 373. The State‘s “citizens and creatures” certainly put the Catawba‘s water and flow to different uses—many for drinking water, some for farming or recreation, others for generating power. That does not, however, make their interest in the water itself unique. And it is the respective interests of the States in the water itself that are being litigated in this original action—not the claims of particular citizens that they be allowed to put the water to specified uses. The latter subject is “an intramural dispute over the distribution of water within the [State],” ibid., and is not the subject of this original proceeding.
The majority recognizes as much with respect to Charlotte, ante, at 274-276, but departs from these principles in granting intervention to Duke Energy and CRWSP. The majority‘s reasons for doing so do not withstand scrutiny.
The majority initially contends that Duke Energy should be allowed to intervene because it possesses “relevant information” that we are “likely to consider.” Ante, at 272, 273. Nonparties often do, but that is not a “compelling interest” justifying intervention. I have little doubt that Philadelphia possessed pertinent information in New Jersey v. New York, but we did not permit Philadelphia to intervene on that ground. Parties to litigation have ready means of access to relevant information held by nonparties, and those nonparties can certainly furnish such information on their own if they consider it in their best interests (through, for example, participation as amici curiae).
The majority also states that Duke Energy has compelling interests in its hydroelectric operations along the river, and
Finally, the majority asserts that Duke Energy “has a unique and compelling interest in protecting the terms of its existing [Federal Energy Regulatory Commission (FERC)] license and the [Comprehensive Relicensing Agreement (CRA)] that forms the basis of Duke Energy‘s pending renewal application.” Ante, at 272-273. And the majority contends that neither State represents these interests because “[n]either State has signed the CRA or expressed an intention to defend its terms,” and because North Carolina has even expressed its intent to challenge the terms of the CRA in this action. Ante, at 273.
Again, all this amounts to is an articulation of the reason Duke Energy asserts a particular interest in the waters of the Catawba. Other citizens of North Carolina doubtless have reasons of their own, ones they find as important as Duke Energy believes its to be. Weighing those interests is an “intramural” matter for the State. New Jersey v. New York, supra, at 373. In addition, the Federal Government is doubtless familiar with the pending FERC proceedings, and it sees no corresponding need for us to grant Duke Energy‘s motion to intervene. See Brief for United States as Amicus Curiae 20, n. 3.
As for CRWSP, the Special Master concluded that it should be allowed to intervene, but only because its position was “similar analytically to Charlotte‘s.” First Interim Report of Special Master, O. T. 2008, No. 138, Orig., p. 25. The Court rejects Charlotte‘s motion, but nonetheless allows CRWSP to intervene on a ground not relied upon by the Special Master. According to the majority, CRWSP should
CRWSP‘s motion arguably presents a different case from that of Duke Energy, one not definitively resolved by this Court in New Jersey v. New York. At the end of the day, however, I agree with the Special Master‘s premise—CRWSP‘s position is really no different from Charlotte‘s. I disagree with her conclusion, of course, because I agree with the Court that Charlotte should not be allowed to intervene.
A bistate entity cannot be allowed to intervene merely because it embodies an “intermingling of state interests.” Ante, at 271, n. 6. The same would be true of any bistate entity, or indeed any corporation or individual conducting business in both States. An exception for such cases would certainly swallow the New Jersey v. New York rule. Entities with interests in both States must seek to vindicate those interests within each State. Bistate entities are not States entitled to invoke our original jurisdiction, and should not be effectively accorded an automatic right to intervene as parties in cases within that jurisdiction.
With respect to both Duke Energy and CRWSP, the majority further relies on its conclusion that the States will not “properly represent” the interests of those entities. Ante, at 270; see ante, at 273. If by that the Court means that the States may adopt positions adverse to Duke Energy and CRWSP, that surely cannot be enough. The guiding principle articulated in New Jersey v. New York is “that the state, when a party to a suit involving a matter of sovereign interest, ‘must be deemed to represent all its citizens,‘” and may not be “judicially impeached on matters of policy by its own subjects.” 345 U. S., at 372-373 (quoting Kentucky v. Indiana, 281 U. S., at 173-174). This case involves a “matter of sovereign interest“—the equitable apportionment of water—and the States therefore “properly represen[t]” the shared
The majority also pays little heed to the practical constraints on this Court‘s original jurisdiction. It is hard to see how the arguments the Court accepts today could not also be pressed by countless other water users in either North or South Carolina. Under the Court‘s analysis, I see “no practical limitation on the number of citizens, as such, who would be entitled to be made parties.” New Jersey v. New York, supra, at 373. To the extent intervention is allowed for some private entities with interests in the water, others who also have an interest will feel compelled to intervene as well—and we will be hard put to refuse them. See Utah v. United States, 394 U. S., at 95-96 (denying intervention to a corporation that sought to quiet its title to land because, “[i]f [it were] admitted, fairness would require the admission of any of the other 120 private landowners who wish to quiet their title..., greatly increasing the complexity of this litigation“). An equitable apportionment action will take on the characteristics of an interpleader case, with all those asserting interests in the limited supply of water jostling for their share like animals at a waterhole. And we will find ourselves in a “quandary whereby we must opt either to pick and choose arbitrarily among similarly situated litigants or to devote truly enormous portions of our energies to [original] matters.” Ohio v. Wyandotte Chemicals Corp., 401 U. S., at 504.
Allowing nonsovereign entities to intervene as parties will inevitably prolong the resolution of this and other equitable apportionment actions, which already take considerable time. Intervenors do not come alone—they bring along more issues to decide, more discovery requests, more excep
And all this for what? The Special Master, and through her the Court, can have the benefit of the views of those seeking to intervene by according them the status of amici curiae. “Where he presents no new questions, a third party can contribute usually most effectively and always most expeditiously by a brief amicus curiae and not by intervention.” Bush v. Viterna, 740 F. 2d 350, 359 (CA5 1984) (per curiam) (internal quotation marks omitted). Courts often treat amicus participation as an alternative to intervention. See 7C C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1913, p. 495, and n. 26 (2007) (citing examples). And this Court often denies motions to intervene while granting leave to participate as an amicus in original actions generally, see, e. g., Kentucky v. Indiana, 445 U.S. 941 (1980); United States v. California, 377 U. S. 926 (1964); cf. New Hampshire v. Maine, 426 U. S. 363, 365, n. 2 (1976), and in equitable apportionment actions specifically, see, e. g., Arizona v. California, 530 U. S. 392, 419, n. 6 (2000); Nebraska v. Wyoming, 507 U. S. 584, 589-590 (1993).
Nebraska v. Wyoming is particularly instructive on this point. The Court there adopted the recommendation of the Special Master to deny intervention to certain entities. See id., at 589-590; Second Interim Report of Special Master, Ο. Τ. 1991, No. 108, Orig., pp. 108-109. The interests of those entities in the water dispute were quite similar to the interests of the entities seeking to intervene here: One operated a powerplant and a reservoir on the Laramie River, and another was a power district seeking to protect its FERC license. See First Interim Report of Special Master, O. Т. 1988, No. 108, Orig., pp. 11-14, 9a. While it adopted the Spe
*
*
*
Our original jurisdiction over actions between States is concerned with disputes so serious that they would be grounds for war if the States were truly sovereign. Texas v. New Mexico, 462 U. S., at 571, n. 18. A dispute between States over rights to water fits that bill; a squabble among private entities within a State over how to divvy up that State‘s share does not. A judgment in an equitable apportionment action binds the States; it is not binding with respect to particular uses asserted by private entities. Allowing intervention by such entities would vastly complicate and delay already complicated and lengthy actions. And the benefits private entities might bring can be readily secured, as has typically been done, by their participation as amici curiae.
In light of all this, it is difficult to understand why the Court grants nonsovereign entities leave to intervene in this equitable apportionment action, and easy to understand why the Court has never before done so in such a case.
I would grant South Carolina‘s exceptions, and deny the motions to intervene.