STATE OF MISSISSIPPI, PLAINTIFF V. UNITED STATES OF AMERICA, ET AL.

   No. 117, Original

   In The Supreme Court Of The United States

   October Term, 1990

   On Motion For Leave To File Bill Of Complaint

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Statement
   Argument
   Conclusion

                               STATEMENT

   The State of Mississippi requests leave from this Court to file a
bill of complaint against the United States, the State of Louisiana,
and various federal officers in their official capacity.  The
eight-count complaint is founded on allegations that the United
States, and specifically the Army Corps of Engineers, through its acts
and omissions, has diverted the waters of the Pearl River, which forms
a portion of the boundary between Mississippi and Louisiana, from the
natural, historic channel into the West Pearl River, a separate and
distinct river system lying entirely within Louisiana.

   1. The Pearl River rises in east central Mississippi and flows
generally southward about 475 miles, discharging through several
mouths into the costal sounds of the Gulf of Mexico.  The river passes
through Jackson, Mississippi and, from the thirty-first degree of
north latitude southward, forms the border between Louisiana and
Mississippi.  See Mississippi Statehood Act of Mar. 1, 1817, ch. 23,
Section 2, 3 Stat. 348.  The Army Corps of Engineers has prepared a
hydrological study of the southern portion of that area, which is
known as the Lower Pearl River Basin.  See U.S. Army Corps of
Engineers (Vicksburg District), Lower Pearl River Basin Flow
Distribution, Mississippi and Louisiana (Nov. 1989) (herinafter Pearl
River Report).  /1/

   As the Pearl River Report explains, the Pearl River divides between
Bogalusa, Louisiana and Picayune, Mississippi into two main courses:
(a) the East Pearl River (also known as the Pearl River) which forms
the Louisiana-Mississippi border;  and (b) the West Pearl River, which
is located completely within Louisiana.  The East Pearl River flows
approximately 48 miles into Lake Borgne, Mississippi, which opens to
the Gulf of Mexico.  The West Pearl River flows approximately 44 miles
into the Rigolets of Louisiana, which also opens into the Gulf of
Mexico.  The East Pearl and the West Pearl Rivers are two separate and
hydrologically distinct systems during low-flow conditions.  Pearl
River Report Syllabus, 1-3.  /2/

   2. Congress has directed the Army Corps of Engineers to undertake
three significant navigation improvement projects in the Lower Pearl
River Basin.  First, in 1880, Congress authorized a project entitled
"Improvement of the Pearl River Below Jackson, Mississippi," which was
intended to provide a 5-foot navigation channel from Jackson to the
Rigolets by way of the West Pearl River.  See River and Harbor Act of
June 14, 1880, ch. 211, 21 Stat. 190.  Congress discontinued that
project in 1922.  See River and Harbor Act of Sept. 22, 1922, ch. 427,
Section 3, 42 Stat. 1041.  Pearl River Report 9-10.  Second, in 1910,
Congress authorized dredging of the East Pearl River to provide a
navigation channel from the mouth of the East Pearl River to Lake
Borgne.  See River and Harbor Act of June 25, 1910, ch. 382, 36 Stat.
647.  That project, which is known as the East Pearl River Navigation
Project, was completed in 1911, continues to experience some
commercial traffic, and is maintained on an irregular basis.  Pearl
River Report 11, 12.  Finally, in 1935, Congress authorized the West
Pearl River Navigation Project, which provides a navigation channel
from Bogalusa to the mouth of the West Pearl River.  See River and
Harbor Act of Aug. 30, 1935, ch. 831, 49 Stat. 1033.  That project
includes the Lateral Canal, consisting of three locks, from Pool's
Bluff Sill, on the Pearl River, to the West Pearl River.  The Corps
placed the project in "caretaker" status in the 1970s because of a
decline in commercial traffic on the West Pearl River.  The Corps has
performed "maintenance dredging" since December 1988.  Pearl River
Report 11, 13-14.  /3/

   3. Since the late 19th Century, most of the Pearl River's flow
during low-flow periods has drained through the West Pearl River.  /4/
Today, that flow reaches the West Pearl through three principal
routes.  First, a nominal portion of the water is diverted from the
Pearl River to the Lateral Canal, which connects with the West Pearl
River.  /5/ Second, the majority of the remaining water (approximately
75% of the historical low flow in the Pearl River) passes through the
Wilson Slough to the West Pearl River.  And third, a minority of the
remaining water (approximately 25% of the historical low flow in the
Pearl River) passes through Holmes Bayou, south of the Wilson Slough,
to the West Pearl River.  During low flow, a nominal portion of the
Pearl River passes into the East Pearl River.  The East Pearl receives
virtually all of its flow, however, from Mississippi tributaries
(primarily East and West Hobolochitto Creeks).  Pearl River Report
21-22.

   4. The Corps' Pearl River Report explored the possibility of
redistributing the water flows within the Lower Pearl River Basin to
increase the flow into the East Pearl River.  The Corps stated that
the "area is hydrologically and biologically complex," that "opinions
among lay people and professionals differ greatly as to the problems
of the Lower Basin," and that opinions "diverge even more on water
management measures necessary for environmental preservation." Id. at
56.  The Corps found that a water resources development plan designed
primarily to provide recreation benefits at Walkiah Bluff would be
economically feasible, but would produce no navigation or flood
control benefits.  Ibid.  It also observed that the low flow condition
of the East Pearl River "has been in existence for decades and does
not necessarily reflect an environmental problem requiring
correction." Ibid.  In sum, the Corps "did not find any problems that
could be solved by a Federal project, given the current policies and
priorities of the Administration." Id. at 57.

                               ARGUMENT

   Mississippi seeks to invoke this Court's original jurisdiction "to
obtain the restoration of water flow to the Pearl River, which forms
the boundary between the States of Mississippi and Louisiana, and to
preserve and restore the surrounding ecosystems to a viable and
navigable fresh waterway as it existed prior to the diversion and
obstruction of its flow by the Defendants." Motion 2.  We submit that
Mississippi's proposed suit does not warrant the exercise of this
Court's original jurisdiction and that the Court should deny
Mississippi's motion for leave to file the complaint.

   1. This Court has "substantial discretion" to deny a motion for
leave to file a bill of complaint, even if the case technically falls
within the Court's original jurisdiction.  Texas v. New Mexico, 462
U.S. 554, 570 (1983).  /6/ The Court exercises that discretion "with
an eye to promoting the most effective functioning of this Court
within the overall federal system." Ibid.  It considers prudential and
equitable factors, including the seriousness and dignity of the claim
and the availability of alternative forums.  California v. Texas, 457
U.S. 164, 168 (1982).  The Court has consistently stated that its
original jurisdiction should be exercised sparingly.  See Ibid.  /7/
As a general matter, a party must clearly demonstrate that the Court's
exercise of its original jurisdiction is necessary to prevent or
remedy serious injury.  See Alabama v. Arizona, 291 U.S. 286, 292
(1934);  New York v. New Jersey, 256 U.S. 296, 309 (1921).  /8/

   2. Mississippi's proposed action fails to satisfy this Court's
standards for the exercise of original jurisdiction.  The complaint,
which contains eight indefinitely pleaded counts, is not a model of
clarity.  /9/ It basically seeks:  (a) an equitable apportionment of
the flow of the Pearl River;  (b) a declaration that the Army Corps of
Engineers' navigation projects have unlawfully diverted water from the
East Pearl River to the West Pearl River;  and (c) resolution of a
vague miscellany of water pollution, common law nuisance, taking, and
quiet title claims.  Complaint 14-16.  These claims are either not
judicially cognizable or are more appropriately heard (if Mississippi
is able to plead them properly) in federal district court.

   First, Mississippi cannot obtain judicial rescission of Congress's
decision to authorize the navigation projects at issue, nor can it
obtain a judicial revision of Congress's decision by seeking an
"equitable apportionment" of the affected waters that would require a
change in the scope or the operation of those projects.  Second,
although Mississippi, in theory, might be able to bring an actin
alleging that the Corps' operation of its navigation projects is
inconsistent with federal legislation, that claim could be heard in
federal district court under Section 10 of the Administrative
Procedure Act (APA), 5 U.S.C. 701 et seq.  Third, Mississippi's other
allegations do not state cognizable claims because they fail to
identify a cause of action or a legal basis for relief.

   a. The Court has repeatedly held that Congress has plenary
authority to control the Nation's waters to facilitate commerce.  See,
e.g., United States v. Appalachian Power Co., 311 U.S. 377, 423
(1940).  That authority includes "dominion over flowage." Id. at 424.
It is "firmly settled" that "the authority and rights of a State in
respect of such waters within its limits, and in respect of the lands
under them, are subordinate to this power of Congress." New Jersey v.
Sargent, 269 U.S. 328, 337 (1926).  Thus, Mississippi cannot bring a
legal action challenging the wisdom of Congress's decisions to
construct, discontinue, or forgo navigation projects in the Lower
Pearl River Basin, nor can it challenge the wisdom of Congress's
decisions as to the scope or location of those projects, even though
the projects affect the flow of the constituent rivers.

   By the same token, a State cannot override Congress's judgment
indirectly by seeking a judicial apportionment of the river's flow
based on "equitable" principles.  As this Court has explained, where
Congress has provided a statutory allocation of water among the
States, "courts have no power to substitute their own notion of an
'equitable apportionment' for the apportionment chosen by Congress."
Arizona v. California, 373 U.S. 546, 565-566 (1963).  The same result
follows where Congress approves a navigation project that
redistributes flows among several States.  Congressional approval of
the navigation project carries with it congressional approval of the
resulting flow distribution.  See United States v. Chandler-Dunbar
Water Power Co., 229 U.S. 53, 65-66 (1913).  Courts are not empowered
to revise the navigation project by imposing "equitable" constraints
on the resulting flows.  See ibid.  Indeed, chaos would result if
courts could require alteration of congressionally approved navigation
projects to meet judicially-prescribed "equitable" flow requirements.
/10/

   Thus, Mississippi's request for an equitable apportionment of the
Pearl River (Complaint 6-7 (Count I)) is entirely inappropriate.  This
Court has entertained equitable apportionment actions in the arid
western States to prevent upstream States, diverting water for
irrigation and other state-approved consumptive uses, from depriving
downstream States of an equitable share of an overappropriated
interstate stream's flow.  See, e.g., Nebraska v. Wyoming, 325 U.S.
589 (1945).  In this case, by contrast, there is no claim that the
Pearl River, which passes through one of the most humid areas of the
country, is overappropriated.  Compare id. at 610.  Indeed,
Mississippi does not allege that Louisiana has appropriated or
diverted any water from the Pearl River.  Rather, as the Pearl River
Report documents, the Pearl River feeds into Louisiana's West Pearl
River almost exclusively as a consequence of unregulated flow through
Wilson Slough and Holmes Bayou.  Thus, there is no precedent or
warrant for equitable apportionment in this case.  /11/

   b. Although a State may not challenge the wisdom of Congress's
selectin of a navigation project, it may be able to raise legal
objections, under Section 10 of the APA, 5 U.S.C. 701 et seq., to the
Army Corps of Engineers' actions in implementing the project.  /12/
The State, however, must meet the requirements of the APA, which
include a showing that the State is "suffering legal wrong because of
agency action, or (is) adversely affected or aggrieved by agency
action within the meaning of a relevant statute," 5 U.S.C. 702, and
that the agency action is "made reviewable by statute" or is "final
agency action for which there is no adequate remedy in a court," 5
U.S.C. 704.  We submit that Mississippi has failed to state properly
an APA claim.

   Three counts of Mississippi's Complaint might conceivably form the
basis for an APA action:  (i) Count II, which alleges that the Corps
has violated the National Environmental Policy Act (NEPA), 42 U.S.C.
4331 et seq.; (ii) Count III, which alleges that the Corps has
violated the Fish and Wildlife Coordination Act, 16 U.S.C. 661 et
seq.; and (iii) Count IV, which alleges that the "Defendants have
abused any discretion which they may have had in refusing to use * * *
funds to maintain the character, navigability, and integrity of the
Pearl River." Complaint 7-10, 10-11, 13.  However, these counts do not
cite the APA and are not pleaded with sufficient specificity to
identify a cognizable APA claim.

   Count II of the Complaint fails to identify any specific past or
present agency action or omission that could violate NEPA.  /13/
Similarly, Mississippi's vague and summary allegations in Counts III
and VI that the Corps has violated the Fish and Wildlife Coordination
Act and has "abused its discretion" do not identify any particular
agency action at issue, any provisions of federal law that the agency
allegedly has violated, or the "legal wrong" that Mississippi has
suffered.  A party seeking leave to invoke this Court's original
jurisdiction bears the burden of identifying its claims far more
clearly and precisely.  See Alabama v. Arizona, 291 U.S. at 292, cited
in South Carolina v. Regan, 465 U.S. at 401 (O'Connor, J.,
concurring).  Even under a liberal reading of its pleading,
Mississippi has failed to show any entitlement to legal relief.  And
even if we assume that Mississippi could allege facts sufficient to
serve as a basis for a APA claim, that claim would fall within the
routine jurisdiction of -- and should be decided in the first instance
by -- a federal district court.  See 28 U.S.C. 1331.  See also
Califano v. Sanders, 430 U.S. 99 (1977).  /14/

   c. Mississippi's various remaining claims plainly do not qualify
for resolution under the Court's original jurisdiction.  Mississippi
alleges, in Count IV, that the United States has violated the Federal
Water Pollution Control Act (the Clean Water Act), 33 U.S.C. 1251 et
seq., by "fail(ing) to act to restore water quality" and by
"deplet(ing) the flow" of the Pearl River.  Complaint 11-12.
Mississippi does not identify the relevant "acts and omissions" (id.
at 11), nor does it explain how they violate the Clean Water Act.
Even if Mississippi could allege sufficient facts to bring a citizen
suit under the Clean Water Act, jurisdiction over that suit would lie
in federal district court.  See 33 U.S.C. 1365.

   Mississippi next seeks, in a second Count IV, to enjoin the Corps'
navigation works as a "common law public nuisance." Complaint 12.
Even if the Corps' works could be characterized as a public nuisance,
that claim is without merit.  It has long been settled that, unless
Congress specifies otherwise, congressionally authorized activities
are immune from state law limitations that would impair performance of
the federal function.  See, e.g., Hancock v. Train, 426 U.S. 167,
178-179 (1976);  Mayo v. United States, 319 U.S. 441, 445-448 (1943);
Johnson v. Maryland, 254 U.S. 51, 57 (1920).

   Mississippi alleges in Count V that the Corps' "acts and omissions"
have resulted in a "wrongful taking" of property in the form of "water
rights in and to the natural flow, use, and benefits of the waters of
the Pearl River." Complaint 13.  It is well settled, however, that
neither a State nor its citizens are entitled to compensation on
account of federal navigational improvements that impair in-stream
property or that diminish the flow of a navigable stream.  See, e.g.,
United States v. Cherokee Nation, 480 U.S. 700 (1987);  United States
v. Rands, 389 U.S. 121 (1967);  United States v. Grand River Dam
Authority, 363 U.S. 229 (1960);  United States v. Chandler-Dunbar
Water Power Co., supra.  Even if Mississippi could assert a wrongful
taking against the United States, the Claims Court would have
jurisdiction over the dispute.  See 28 U.S.C. 1491.

   Finally, Mississippi seeks in Count VII to quiet title to portions
of the bed of the Pearl River as against Louisiana.  Complaint 13-14.
Mississippi does not name the United States as a defendant in this
count.  We simply observe that this count, which does not identify the
lands in dispute, is not pleaded with sufficient specificity to assure
the Court that the claim has sufficient "seriousness and dignity" to
warrant the exercise of the Court's original jurisdiction.  California
v. Texas, 457 U.S. at 168.

   3. Mississippi's motion for leave to file an original action is the
most recent manifestation of that State's ongoing attempts, on a
variety of fronts, to obtain a redistribution of water in the Lower
Pearl River Basin.  The Army Corps of Engineers has determined that
the current flow distribution is a longstanding phenomenon, is largely
(if not entirely) the result of natural and private activities dating
back to the 19th Century, and cannot be changed without substantial
expenditures to redirect currently unregulated flows.  The Corps of
Engineers has studied the matter and has concluded that a federal
project to redistribute water would provide no significant navigation
or flood control benefits, would provide questionable environmental
benefits, and could be justified only on the basis of enhancing
certain recreation opportunities on a small stretch of the waterway.
See Pearl River Report 55-57.  If Mississippi nevertheless believes
that Congress should authorize a federal project to direct water to
the East Pearl River, it must convince Congress why that is so.  We
submit that litigation on this matter, whether in this Court or in
federal district court, cannot change the realities of that situation
or produce the remedy that Mississippi seeks.

                              CONCLUSION

   The motion for leave to file a bill of complaint should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   RICHARD B. STEWART

      Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   JEFFREY P. MINEAR

      Assistant to the Solicitor General

   PAMELA WEST

      Attorney

   FEBRUARY 1991

   /1/ The House Committee on Public Works and Transportation
requested the Corps to prepare the Pearl River Report through a 1979
resolution seeking a study of "the Pearl River Basin, Mississippi and
Louisiana, with a view toward enhancing the ecological conditions of
the study area and insuring adequate surface water supplies to the
lower Pearl River Basin to meet future demands." See Pearl River
Report 1.  Congress ultimately funded the study through the Energy and
Water Development Appropriation Act, 1988, Pub. L. No. 100-202, Tit.
I, 101 Stat. 1329-104.  See Pearl River Report 1.

   /2/ We have reproduced a map, obtained from the Pearl River Report,
of the relevant features of this area.  See App., infra.

   /3/ The Corps also maintains a 20-mile long, 12-foot deep
navigation channel in the East Pearl River for the National
Aeronautics and Space Administration (NASA).  That channel extends
from a NASA test facility, located on the East Pearl River, southward
to Lake Borgne.  The Corps performs dredging for NASA on a
cost-reimbursable basis.  Pearl River Project 11.

   /4/ Assistant Engineer H.C. Collins reported this phenomenon to the
Chief of Engineers in his August 1, 1879, survey of the Pearl River.
See U.S. Army Corps of Engineers, Annual Report of the Chief of
Engineers, 1879, at App. K, 886-900.  Collins stated that, according
to old inhabitants, the Pearl River (including the portion now known
as the East Pearl River) originally was a slow-running, clear stream
with a good navigational channel.  Id. at 887, 895.  However, local
settlers made cut-offs and placed booms of sunken logs in the river.
Ibid.  Those actions and a massive flood in 1874 diverted most of the
flow into a "new" channel, the West Pearl River, and effected a
substantial reduction in the flow of what is now the East Pearl River.
 Id. at 887, 895-897.

   /5/ "Only the flow necessary to operate the locks on the Lateral
Canal is diverted from the Pearl River." Pearl River Report 3.

   /6/ See, e.g., California v. Texas, 457 U.S. 164, 168 (1982);
Maryland v. Louisiana, 451 U.S. 725, 743 (1981);  Ohio v. Wyandotte
Chemicals Corp., 401 U.S. 493, 499 (1971).

   /7/ See also, e.g., Arizona v. New Mexico, 425 U.S. 794, 796
(1976);  United States v. Nevada, 412 U.S. 534, 538 (1973);  Illinois
v. City of Milwaukee, 406 U.S. 91, 93 (1972);  Ohio v. Wyandotte
Chemicals Corp., 401 U.S. at 497-499;  Utah v. United States, 394 U.S.
89, 95 (1969);  Massachusetts v. Missouri, 308 U.S. 1, 18-20 (1939).

   /8/ See also South Carolina v. Regan, 465 U.S. 367, 400-401 (1984)
(O'Connor, J., concurring) ("An original party establishes that a case
is 'appropriate' for obligatory jurisdiction by demonstrating through
'clear and convincing evidence,' that it has suffered an injury of
'serious magnitude' and that it otherwise will be without an
alternative forum." (citations omitted)).

   /9/ The complaint alleges claims under eight counts captioned as
follows:  Count I, Equitable Apportionment;  Count II, National
Environmental Policy Act;  Count III, Fish and Wildlife Coordination
Act;  Count IV, Federal Water Pollution Control Act;  Count IV (sic),
Common Law Public Nuisance;  Count V, Wrongful Taking;  Count VI,
Abuse of Discretion;  and Count VII, Quiet Title.

   /10/ Moreover, as we have noted (pp. 4-5, supra), the Pearl River
Report indicates that the federal navigation projects in the Lower
Pearl River Basin have a negligible effect in directing flow from the
East Pearl to the West Pearl Rivers;  rather the flow distribution is
the result of private action and natural phenomena dating back more
than a century.

   /11/ Indeed, even if it were possible to devise a theoretical
"apportionment" of the flow of the Pearl River, that judicial
apportionment would not cure Mississippi's alleged injury.  Rather, it
would be necessary to devise some system for diverting the presently
unregulated flow to the East Pearl River.  Mississippi does not
suggest how that would be done or who would pay for such a system.  As
we explain, p. 13, infra, what Mississippi really seems to want is a
federally funded project that would accomplish that result.

   /12/ The courts have generally treated a State as a person for
purposes of the APA.  See, e.g., Bowen v. Massachusetts, 487 U.S. 879
(1988);  Maryland Dep't of Human Resources v. HHS, 763 F.2d 1441, 1445
n.1 (D.C. Cir. 1985).

   /13/ The Corps' navigation projects in the Lower Pearl River Basin
were constructed prior to NEPA's enactment and thus were not subject
to NEPA's requirement that federal agencies prepare an environmental
impact statement for major federal actions significantly affecting the
quality of the human environment.  See 42 U.S.C. 4332(2)(C).
Mississippi concedes (Complaint 7-8) that the Corps assessed the
environmental consequences of its maintenance operations and found no
significant impact requiring the preparation of an environmental
impact statement.  See 40 C.F.R. 1508.13.  Additionally, the Corps'
decision in the Pearl River Report against further study of flow
redistribution (see Complaint 9) has resulted in agency "inaction,"
which does not require preparation of an environmental impact
statement.  See Defenders of Wildlife v. Andrus, 627 F.2d 1238,
1243-1244 (D.C. Cir. 1980);  Alaska v. Andrus, 591 F.2d 537, 541-542
(9th Cir. 1979).  Contrary to Mississippi's apparent belief (Complaint
8-10), NEPA does not impose substantive environment obligations on an
agency.  See Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 346-353 (1989).

   /14/ In 1982, Mississippi filed a similar complaint against the
United States claiming rights to and seeking redistribution of the
flow of the Pearl River.  Mississippi v. United States, Civ. Action
No. J79-0286(R) (S.D. Miss.) (amended complaint filed Apr. 8, 1982).
The district court granted the State of Louisiana leave to intervene
in the action and, at the United States' suggestion, subsequently
dismissed the action for lack of jurisdiction based on the presence of
two adverse States (see 28 U.S.C. 1251).  Mississippi v. United
States, supra, Order (Dec. 6, 1984).  Although it is not our province
or duty to suggest to Mississippi how to conduct its litigation, we
observe that the State could avoid that jurisdictional difficulty if
it could plead a valid APA claim that challenges only the lawfulness
of specific federal action under federal law.  See Missouri v.
Andrews, 787 F.2d 270, 278 n.7 (8th Cir. 1986), aff'd on other grounds
sub nom.  ETSI Pipeline Project v. Missouri, 484 U.S. 495 (1988).  Cf.
Freeport-McMoRan Inc. v. K N Energy, Inc., No. 90-655 (Feb. 19, 1991).
 Mississippi's ultimate problem appears to be that it is unable to
allege facts as to the conditions in the Lower Pearl River Basin that
would give rise to a cognizable APA claim.

   APPENDIX