A new special master assigned to the fight between Georgia and Florida over water rights once compared the Endangered Species Act to Frankenstein, a monster giving the federal government too much power.
The remark by Senior Judge Paul Kelly Jr. of the U.S. Court of Appeals for the Tenth Circuit came in a 2003 dissent to a decision protecting endangered fish from reduced water flows in New Mexico.
Such sentiment could cheer water users in Georgia, since the Sunshine State claims Georgia’s use of the Apalachicola-Chattahoochee-Flint River Basin doesn’t leave enough water for Apalachicola Bay oysters. But the back and forth in Georgia and Florida’s 30-year water war suggests Kelly’s dissent in a single case, which focused on how the Endangered Species Act affected water contracts, won’t predict the outcome. Kelly could not be reached for comment by deadline.
Stephen Farris, who represented New Mexico in Rio Grande Silvery Minnow v. Keys, chuckled when reminded of Kelly’s remark. Farris, who retired a couple of years ago, has followed the Georgia-Florida case, calling it “particularly complicated.”
“Judge Kelly is good at sorting things out,” Farris said, even if some lawyers may try to confuse matters if it’ll help their clients.
The U.S. Supreme Court on Thursday tapped Kelly to replace Maine lawyer Ralph Lancaster as the water wars’ special master. In Florida v. Georgia, the high court issued a ruling on June 27 that was viewed as a win for Florida while remanding the case for further findings on an equitable remedy.
That will be the job of Kelly, 78, who took senior status last December.
In 2003, Kelly was the dissenter in a 2-1 decision of the Tenth Circuit ruling that a district judge was correct in a case over the habitat of silvery minnows and Southwest willow flycatchers. According to a Lexis summary, the judge ruled the U.S. Bureau of Reclamation (BOR) had discretion to reduce contract water deliveries to irrigation districts and cities to meet its duties under the Endangered Species Act, or ESA.
“The appellate court agreed that the BOR had discretion under its contracts with intervenors to determine the water available to allocate to them and to fulfill ESA obligations. This holding reflected the contract terms as well as the absence of any contract provision specifying absolute amounts of water,” the summary states.
Kelly dissented, arguing the majority “injects uncertainty into settled contractual expectations and profoundly alters, in disregard of relevant statutory and regulatory authority, the obligations of federal agencies” under the ESA.
Kelly concluded the majority ruling conflicted with a U.S. Supreme Court ruling saying the federal government “must respect state-law water rights and lacks any inherent water right in water originating in or flowing through federal property.”
“Under the court’s reasoning the ESA, like Frankenstein, despite the good intentions of its creators, has become a monster,” Kelly added. “The ESA was never meant to allow the federal government, on behalf of endangered species, to overturn this established precedent.”
A 2011 profile of Kelly by former clerk Brian Bialas said the judge is a New York native and son of a Nassau County judge. Kelly attended Fordham University law school, and a chance encounter with a lawyer from Roswell, New Mexico, led him to move there with his family to practice law.
Kelly served four years in the New Mexico Legislature—experience that could come in handy working with the Georgia and Florida state governments—and opened the Santa Fe office of his law firm. In 1991, President George H.W. Bush nominated him to the Tenth Circuit.
In 1998, Kelly served on a panel that upheld the conviction and death sentence of Oklahoma City bomber Timothy McVeigh.
Bialas wrote that his ex-boss has served as a volunteer firefighter since 1984 and spends his summer days “on his 46-foot trawler in Long Island near the place where he was born,” keeping up with work via an on-board computer.