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Those of you familiar with this summer’s endless, and recently torrential, rains across the mid-Atlantic region might be surprised to learn that the states of Virginia and Maryland are fighting over water. Virginia wants to draw water through a pipe built out into the Potomac River. Maryland says no. The river runs between them, so arguments in Virginia v. Maryland will be heard this week on the first day of the Supreme Court term. This spat is particularly curious to those of us in the parched West, who, though no strangers to interstate water litigation, have had the good sense to fight over a commodity whose demand exceeds its supply. Rumors that Wyoming has decided to sue Montana over rights to tumbleweeds, that Key West is suing San Francisco over “alternative lifestyles,” or that Madonna is suing anybody for bad taste, all appear to be unfounded — at least at the moment. But as every battle-weary parent knows, it’s not the number of toys in the toy box that counts when two aggressive 6-year-olds square off over the one action figure each of them wants. Armed with the conviction that the issues raised in this case must likewise be much more important than they seem, I present the following parent’s guide to the controversies. BECAUSE THEY CAN First, a note on the “new federalism.” Constitutional hobbyists out there may be wondering about the propriety of my angry-federal-parent model, given the Supreme Court’s federalism rulings over the last several terms. I have two responses: Look, please, at the new “new federalism” cases this past term. It may once again be appropriate to think of the federal government, and its highest court, as the 500-pound gorilla slapping the states around whenever they need it. More to the point, Virginia v. Maryland is an original jurisdiction case. That means the Supreme Court gets to act with just as much original and boundless arbitrariness as trial judges do every day. After all, what’s the alternative? War? (By the way, in case of war, my bet is on Maryland.) Now to the case. STOP TOUCHING ME! As all parents know, it is a rare dispute between siblings that occurs in a vacuum, and an understanding of the entire internecine history, going back to when the younger child had the audacity to be born, is often necessary to resolve even the most mundane disputes. So it is with our two sovereign siblings. It seems that James I gave all of the Potomac River to the Virginia colony in 1609, but then Charles I gave it to Maryland in 1632. Royal infallibility, not unlike parental infallibility, thus left the ownership of the Potomac, and as a result the boundary between Virginia and Maryland, in serious metaphysical doubt for more than a hundred years. ( “Grandpa James gave me Potomac Man before you were even born.” “Did not.” “Did too.”) A portion of the dispute was initially settled in Virginia’s 1776 constitution, in which it graciously ceded ownership of the river to Maryland, but reserved the right to “free navigation and use.” Then Maryland’s 1776 constitution specifically rejected these reservations, and the battle over the use of the river was on. ( “OK, OK, I’ll give it to you, you little baby, but I can play with it anytime I want.” “Cannot.” “Can too.”) The precise boundary between the states also remained unresolved. Was it the center of the river or a shoreline, and, if a shoreline, then which shoreline, and at the high- or low-water mark? George Washington is reported to have made a good living poaching herring in the Potomac waters. Either from a sense of guilt or, more likely, a sense of national duty, he brokered a deal between the two rivals. Under the Mount Vernon Compact of 1785, the states agreed that they owned the shores on their respective sides, that they could build improvements on their own shores as long as they did not interfere with navigation, and that they had equal fishing and navigation rights. But the exact location of the border remained unresolved. ( “We can both play with it, but my half starts here.” “Does not.”) The border issue was not settled until the states submitted the matter to binding arbitration in 1877. The result — called the Black-Jenkins Award after two of the three arbiters (it is not clear why poor William Graham, the third arbiter, is always left out) — placed the boundary at the low-water mark on the Virginia shore. ( “Grandpa Charles was the last one to give away Potomac Man, and he gave it to me, so I own a little more than half.” “Well, OK, since I still get to play with all of it.”) LET RALPH DECIDE The two brooding states eyed each other with mutual distrust for another 120 years. In 1996, a local water authority in Fairfax County, Va., made the fateful mistake of applying to Maryland officials for permits to build a water intake pipe from the Virginia shore some 700 feet into the river, and thus across the state line. (“Can I put this Laser Cat attachment on Potomac Man? Can I, please?” “Maybe, let me think about it.”) Maryland thought about it for four years. Virginia got tired of waiting, and filed suit in the Supreme Court. Like all good parents, who would never pass up the opportunity to avoid getting embroiled in a dispute between their children when the baby sitter might just as well settle it, the Supreme Court appointed Ralph Lancaster Jr. as special master. Lancaster is a well-respected lawyer from Maine, which, as many readers may know, has a coastline and lots of water. (And he’s had this interstate special master gig before — back in the 1980s in what was presumably not a boundary dispute between Nevada and New Jersey.) Two years and many fees later, Lancaster issued his report last December. In the meantime, not only did Maryland issue the permits, but Virginia completed the water intake facility. “What in the world is now left of the lawsuit?” I can hear those nonparents and other mootness sticklers out there asking. Why, principle, of course, and that’s everything in a fight like this. ( “I can put Laser Cat on if I want to.” “No, you can’t.” “Mom!” “OK, OK, don’t go crying to Mom. I’ll let you put it on.” “I don’t need your permission.” “Yes, you do.” “No, I don’t.”) Lancaster’s 97-page report begins in impressive style, with that special squiggly font announcing him as the special master for the Supreme Court. It quickly disappoints, however, by starting the introduction with some rather dry geographical data and then going right to 1609, skipping over the Big Bang, the clash of the tectonic plates, and the extinction of dinosaurs and small mammals that once congregated at the river. These geological shortcomings notwithstanding, the special master does a workmanlike job analyzing the issues and recommending resolutions. He concludes: (1) that the 1785 compact applies, as Virginia argued, to the whole of the Potomac River, and not just to its tidal reach, as Maryland argued (Potomac Man is the whole toy, not just the legs); (2) that the 1785 compact unambiguously vests title to the Virginia shoreline in Virginia and unambiguously allows Virginia to build appurtenances on its shoreline extending into the river, and to thereby withdraw river water (there’s nothing Clintonian about “playing” with Potomac Man; playing means playing); and (3) that Virginia did not acquiesce to regulation by Maryland by applying for Maryland permits (just because one child is nice enough — one might say, in the case of Virginia, gentlemanly enough — to ask for permission to play with Potomac Man doesn’t mean he needs to). In short, thumbs up for Virginia. GO TO YOUR ROOMS I’ve learned several things from looking at this case: Charles I should have paid more attention to his colonial charters (not to mention his own head). The Potomac’s levels go up and down, something some scientists apparently “theorize” is related to (now get this!) the moon. Bad colonial blood runs deep. Virginia edged Maryland 9-8 in the 2003 NCAA semifinals in women’s lacrosse (Google searches often bear unexpected fruit). Perhaps most importantly, I’ve been reminded — though as a trial judge I really needed no reminding — that people will spare no expense fighting irrational battles of principle so long as somebody else (here, the taxpayer) is footing the bill. I know all of us, especially those of us who are parents, look forward with great anticipation to the Supreme Court spanking both of these misbehaving children. Morris B. Hoffman is a state trial judge in Denver. He reports that he is a recovering parent, and that he knows even less about water law than he does about raising children.

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