Monthly Archives: April 2015

ETSI Pipeline Project v. Missouri

484 U. S. 495

February 23, 1988

Lake Oahe is a reservoir in South Dakota which was created by damming up the Missouri River. A planned pipeline would have drawn water from the lake, but government approval was needed first. The Secretary of Interior granted a permit for this ETSI Pipeline project, but Missouri and other states sued, claiming that the apposite law required the Secretary of the Army to approve the permit instead of the Secretary of Interior.

White wrote for a unanimous Court (Kennedy did not participate). The opinion was much longer than it needed to be, because if there were ever an open-and-shut case, this was it. The statute at issue flatly left the Secretary of the Army as the final arbiter. The Interior Department tried to rely on some vague language in section 9 of the act, but White demolished this with recourse to legislative history and close textual parsing. As a last resort, the Interior Department said that the government should defer to its goofy interpretation, but White said that there could be no deference when the interpretation contradicted the statute on its face. I’m frankly baffled as to why the Court even decided this case, given that it was affirming the lower court. In my year end review, this will probably get a mention as ‘easiest case of the term.’

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Phillips Petroleum Co. v. Mississippi

484 U. S. 469

February 23, 1988

More than 150 after becoming a state, Mississippi decided to assert its alleged right to some non-navigable swamplands that were subject to the influence of the ocean tide. Under common law, sovereignties like states had title to public waters. The landowners fought back, claiming that states only had title to navigable waters, and not all waters subject to tidal influence.

The Court ruled 5-3 that Mississippi received title back in 1817, and could assert it (Kennedy did not participate). Justice White showed some old dicta suggesting that the state’s common law ownership of waters was defined tidally, and bolstered this by claiming that some of the reasons for this common law ownership, like fishing and reclamation, had nothing to do with navigability. That England’s definition of sovereign ownership of waters might be different was brushed aside. So was the fact that some individual states went with a navigability test. Also deemed irrelevant by White was the fact that navigability was the touchstone for inland waterways. Concluding, he said that in light of judicial precedent, the Mississippi landowners had no reasonable expectation that Mississippi was bound to respect.

O’Connor, joined by Stevens and Scalia, sharply dissented. The dicta in old cases about tidal influence was just careless, she said, and a closer examination of the precedents showed that navigability was indeed the preeminent test. Plus, it made no sense to have separate tests for inland waterways, and waterways connected to seas. O’Connor was also worried that some coastal states which had long since settled on the navigation test might be tempted to try and move to the tidal influence test. Finally, she savaged the Court’s indifference to the expectations of the landowners who had paid taxes on the property for more than 150 years. O’Connor’s dissent was absolutely right – this decision was rotten, and Mississippi’s actions were shameful. On the bright side, it was nice to see Stevens backing a property owner for once, even if it was in dissent.