we'll hear argument next this morning in case one forty two on our original docket florida against georgia mr gar thank you mr chief justice and may it please the court the special master based his recommendation on two critical premises first the florida has suffered real harm as a result of georgia's ever increasing consumption of upstream waters and second that georgia's consumption is under reasonable and largely unrestrained in fact the special master found that georgia's position practically politically and legally is that it can consume as much water as it wishes without regard to any of the long term consequences for the apalachicola region the special master nevertheless concluded that this case should be terminated at the outset and that georgia's wasteful consumption be allowed to continue unabated because florida had failed to show an adequate adequate certainty of complete relief with respect to the special master we believe he made a legal error on this discrete issue that the case should be returned to him for him to complete the work that he has  of all i think it is fair to say that for those presentation was focused on the harm that we surf suffered during drought conditions in the extreme low flow periods but two things about that are important to understand there's two ways to redress that harm one is to provide more water during those periods the extreme low flow periods the worst of the worst and the other way is to reduce the frequency and severity of those drought operations and the united states even the united states in this case and it's at page twenty eight of its brief recognizes that a decree in this case limiting george's consumption would benefit florida by reducing the frequency s duration of drought conditions now we think that that end of the record show that that we would benefit from that well what i can point you to for example is the two thousand and twelve drought and we've explained this in the evidence sites at pages forty eight to forty nine of our belief and what that example shows is that if more water had come into the system during the two thousand and twelve drought which one is one of the worse that the region has experienced it would have meant that the core would not have dipped into its drought operations during for nine months during that period which means that the core would not have fallen into the red zone where all the sort of needles are at the far end of the spectrum for nine months during that drought and that has to have resulted in beneficial effects so he was my difficulty mr gore with this argument in this especially with respect to this exception to da i think it is yeah is that you have commonsense on your side i mean you say well it has to have shortened the drought or we you know surely we would have gotten more water and that would have been beneficial to us but there seems to be a real dearth of record evidence specifically quantify and how much more water you would have gotten exactly what benefits would have followed from that it just doesn't seem as though florida put that into the record even though you kind of want to say well that must obviously ok well first of all i agree with you obviously yes be true second mile limit is you know i guess what i'm saying is that as your first reaction but there must have been some reason why it didn't put that into right so let me give you some more evidence or insights and then before i do that let me just point you to what this court said in the idaho two case idaho versus oregon to which the court said that uncertainties about the future do not provide a basis for fashion in the relief and i think overall that's the central principle that's critical in this case is of course allowing more water flew through is going to address this harm this court has never had a situation where it's recognise state has been injured it's recognized that the upstream state is wasting a resource and it's recognized and the evidence shows that relief is possible indeed likely in the court of said nope too bad we're going home and so let me get back to the in just to be clear we think that one of the special master central error was to deal with all this on the basis of a central of a threshold redress ability in court and that instead what this should have done is gone to the equitable balancing stage of the equitable apportionment proceeding where the special master would have to make all the findings that he did not complete on the cost the ga would incur the decree the full range of harms that ability under any conceivable standard now i think when you get into the equitable balancing stage i actually think that the burden shifts to george if that stage because if we've shown as a special master acknowledge that we have that we have suffered real harm as a result of george's inexorable conduct then at that point under this court's precedents colorado vs new mexico in a particular the burden shifts to georgia but i think you would say you did not have the burden when he was shown the injury to show protocols in place during general period you're not going to get more water by a consumption cap putting aside whether that's close to the gavels gravel situation or not i'm really not addressing that but i want to go to the non trout time and as i read his report he he does say there was no evidence of the cap providing you with more water and in fact i did find plenty of evidence of that so i'm not quite sure and he discussed some evidence and rejected it as meaningful so point me to evidence he didn't discuss and explain why it's meaningful sure i mean first of all just to be clear if george's consumption is limited it's going to result in more water in the system and that water is going to flow through and that is justice and logic well no special master recognizes that because for example in pages six and thirty thirty seven of his report he recognizes that the the woodruff facilities that run of the river facility water's going to go through the united states recognizes that on page thirty three of  that water is going to go through and so if we're talking about the non drought periods what i would point you to for example is the two thousand and sixteen biological opinion by the fish and wildlife service that's j x one sixty eight page fifty were talks about the benefits of additional water coming into the system i would point you to the horn direct testimony at paragraph fifty three where talks about the benefits of having additional water come through to help us reduce the slender d for the muscles out i would point you to that alan direct paragraph three d were talks about the benefits of even modest additions of waters and helping to halt an irreversible cycle i would point you to the white direct testimony paragraphs one sixty four were make similar claims about this these are all supporting i have overhead but where do they want to find it to show that the improvement would be meaningful how how all of those talk about how adding additional  even in non drought periods helping the system rejuvenate is going to have a meaningful beneficial effect do they have to be so sorry argument about the standard is that you didn't have to prove the exact amount you just had to prove that it was meaningful exactly and this court said exactly that in colorado vs new mexico where the court said that absolute precision is not required instead this is an equitable proceeding governed by broad inflexible mr guards we're talking about a burden shifting regime and i understand your your a little bit more clearly so once you show that there are benefits you think then what happens well actually i think in this is laid out in colorado vs new mexico thirteen i think it's first first of all i think whichever way you think the burden lies at the end we need it under the correct redress will be standard second of all i think what this court has talked about is when you get to that i will balancing stage the burden is on the diverting state just show that it's that it's either cost too much or it's not worth it i thought that the burden ultimately was for the plaintiff wishes to alter the status quo to show that the benefits he wishes to obtain significantly outweigh the harms that it the relief he seeks would cause well am i wrong about that i think you are under colorado vs in mexico but but if you are right about that your honor i would say that we have met that and that the special master please help me with that  i'm stuck on that standard how do you meet that high threshold seeking seeking this court's equitable first of all assume no change in the core operations the united states itself recognizes in this is it page twenty eight of its brief that a decree limiting georgia's consumption is going to benefit florida because it's going to reduce the frequency severity and duration of the worst possible periods the drought conditions that's point number one the second point is is that the united states is reckoned that the army corps of engineer in the united states of recognize that if this court were to enter a decree in this case the army corps of engineers would review that to create and would adjust it operations accordingly so that well let's just stick with the non drought operations ok assume my standard how do you win under the non drought here i think we have to show that it is a likelihood of at least partial redress and i think that we have shown that because soon there let's go to the real question which is if it's your burden to prove the bounds assume that how have cost them three hundred fifty million dollars a year in fact our witness mr sundin put on evidence it was me thirty five million dollars a year and the special master didn't make findings on that because he short circuited so that your real beef then that at the end of the day that the special master went off track on redress ability with drought years you have redress ability and that he should have therefore conducted a more thorough balancing test and weighing the equities on the non drug years at the very least yes ultimately that's what we think should happen next and in that proceeding what you would take into account is ok what's the full extent of florida's injuries special masters found that we've been gravely injured with respect to oysters he didn't make findings on the threatened gold sturgeon or the threatened mussels in the apalachicola river he didn't make those funny but again this goes back to my first question suppose the special master thought you know i can't even begin to do a cost benefit analysis in the way that you would have liked him to because florida hasn't shown that they're going to benefit at all so it doesn't matter what the costs are with respect to georgia they could be fairly minimal but florida hasn't put on any evidence that they're going to get anough water as a result of these consumption caps going into place that would improve their ecosystems improve the oyster beds or so forth and without that i can't go forward your honor there was significant evidence put in  witnesses for example dr hornberger about the benefits of the water coming through the well there are two kinds of evidence that you might be talking about one is evidence saying a lot more water would help our  ecosystems and i think that there is it a fair amount of evidence with respect to that but there's a prior question which is exactly how much more water would you get if these caps went into place and that's the place where it seems to me that there's kind of a vacuum well i don't think so and you know what i would point you to for example is the united states post trial brief if you look at page one thousand of that brief i think it recognizes that during the low flow periods not the extreme low flows but the low throws bumping up on the worst possible harm during that period additional water coming in would go through to georgia and the example that it has is if you had a flow rate at the border of six thousand c f s and additional water coming through of two thousand c f s that you then have eight thousand going through that's that's a lot of water and our witnesses overwhelmingly show that that kind of water was going to have a significant impact on the apalachicola river it in and i think again going back to that stepping taking a step back in terms of what we have to show in this proceed this court has always made clear in this setting that uncertainties about the future are not basis to provide a brief a decree that absolute precision is not required and that's because this quarter's in the realm of equity this court has never had a situation where it's found harm it's found inexorable conduct and it's found that relief is possible i had think you have to conclude on this record that relief is possible and the special master the error that he committed i would agree with justice course of john this is he got off track on this threshold rest ability ruling that instead he should have continued the crude work that he had done made all the findings in terms of all the harm that florida suffers the costs that george is going to occur can incur from a decree and then determine whether or not a decree apportionment should be entered now if i could go to the army corps of engineers because i do think that this is a separate basis for finding redress ability into to be fair to the special master he didn't have the benefit of this and that's the record of the decision that was issued about six weeks after the special master made this recommendation here where the army corps of engineers said if this court enters agreed decree in this case it would review that to create and adjust its operations accordingly is that the march thirty yes your army and i think if that's on page eighteen of that document and the united states importantly recognizes that in its brief that page thirty of its brief that that that a decree in this case would form a part of the constellation of laws that the army corps of engineers would have to look to in order to decide how to respond to that we don't know what the army corps of engineers is going to do but i think common sense would tell you that any good government actor would look at a decision by this court and seek to adjust its operations in a way that with silicate that to create and you can just take the army corps of engineers word for it  four of that document the record of decision the army corps of engineers says that it has continually continuingly asserted its preparedness to implement an agreed upon formula by the states and that's certainly consistent with the army corps of engineers statements over time and then it also goes on to say that the same formula could be instituted by congress or by the court now the army corps of engineer again it is continually assert preparedness to implement and to create and that makes sense because government is recognised in this case a decree equitably a portion of the waters is only going to result in more water in the system and make it easier for the army corps of engineers to accomplish its objectives so then the question is what would the army corps of engineer do with that water would it somehow stash it away or just send it to georgia or to look at the decision a decision by this court in this case and seek to facilitate that decision rather than frustrated i think everything would tell you including the words that i just quoted from the army corps of engineers own decision that it would seek to facilitate the decision and that in itself should provide redress ability the only way that it wouldn't provide rest ability is if we have to show a certainty of complete relief today this court has never required that if you look at your redress ability cases like bennett vs speer and utah versus evans treated situations where even though the government wouldn't be formally bound by a decision by this court it's recognized that where that decision would change the laws under which the agency would have to operate as was true in bennett versus speer that that was sufficient to establish addressability  likely and i think i've pointed you justice kagan to evidence in the record i would encourage you to read mr horne riggers testimony and other testimonies about the benefits of additional water but i think you haven't answered justice kagan's question we accept there's plenty of evidence on the benefits of the dish and right she seems to be saying the link that you haven't proven is that by putting it communicants sumption limit that that water would actually reach oh oh ok well that that i think is her question i guess mine to ok i mean first of all i don't think the special master disagreed with the notion that the water is going to go flew through i think that he accepted that and i think if you look at pages six and thirds on to fide how much water you were going to get as a result of these consumption gaps and i think again i think we did i think if you look at the testimony of hornberger testimony in particular other testimony in that the amount of  studies mention you mention horn and i think again i mean all of the special mass of lands that he was looking at the record in was whether we had shown that there was a guarantee that the corps would exercise its discretion in particular way he included that we haven't shown to certainty that the water would get through you have another site besides the one you mention well in terms of the the water that would go through and i also would point you to the government's brief that recognizes on page thirty three it doesn't want to fly well we're talking about our case was focused on showing that a consumption cap would result in anywhere from two thousand to one thousand additional c f s flowing through and that the limits we put in place and i think the evidence is very specific when you get into it about that water ice really so you're saying the drought information holds true at minimum for the not entrap will that hold or to live through for the water going through and then there are two questions and then the question becomes one is that water going to go through and on that i think first you have to take as a given that water going through even outside of those drought periods is going to reduce the frequency and severity of the drought periods and that in itself is relief it's meaningful relief from the government recognises that it page twenty eight on the question of water going through in drought operations we put in evidence substantial evidence about how the corps has released many discretionary releases of water at the woodruff dam even a drop drought up aeration is going back decades and it also gets to this question of how would the cor respond to a decree in this case and incense in the court is an unusual situation here where there's sort of a chicken and the egg problem you know that you have a serious problem here the appalachicola whole region has suffered serious harm not only have  decimated but really a way of life so really what the issue is let me see if i am sure you claim that i have to go back to the report and read it down to find this that the special master accepted consumption cap of one to two thousand minimum would flow through drought and non drought years well let me say it this way i think the special master did find that we didn't prove to  certainty a certainty and there was no guarantee that's what he said on page sixty nine that the core would allow additional water to die and i don't know that's what it said right here about what happens with the core i'm saying if he find that the consumption cap would release a certain minimum amount of water that would get to the core he he didn't he certainly didn't frame it this way that way you run on terms you can't say that i found x amount is going to go through i don't think he was all three groups lawyers is why isn't the united states in this case i mean there is they have to give mystical answers i mean i don't understand it maybe i don't because i understand the whole thing imagine that i'm sending south of the woodruff in that apalachicola bay or over the river i'm standing there in the south ok and suppose about two thousand cubic feet comes from the  and now what the corps will do with the other river which is the chattahoochee it'll make certain it gets up to forty five hundred so they put in twenty five hundred now if one day instead of two thousand in this drought here it comes down the flint three thousand comes down the flint why in heaven's name doesn't the course send a little less and a little more you know the words but their thinking is worth two thousand comes down then the corps will reduce the percent part that it sends down the chattahoochee by two thousand and that's a pretty tough position wouldn't they be a little grateful wouldn't they think anything of the oysters wouldn't they say let's at least give them a teaspoon full we've saved two thousand cubic feet of water so let's give them a little bit of it now the obvious people to answer that question is the core and were as the other case once you get rid of them in your case you don't want to but i would like them here so i could ask them that you're not even going to give them a teaspoon or what and that's in the drought years and in the non drought years we know there's a lot of extra water stuffed up there you don't even have to get down into zone three because so much is flowing down the flint well that's that's pretty good isn't it because if you have a lot more in zone three of their on the chattahoochee then you have more water to send around once the drought begins and won't you do it one reason is if i'm thinking you won't ok now that's as i understand this case which i expect you to say you're way off base because i'd love to agree with you but i don't or you might say yeah you're on base that's a point i wonder well methink i think one way to think about the corps position in this case which has evolved a bit in my basically on base i think you're on base think that life would be a lot easier if the court interview but i haven't got this right as the as but i think i think one question is is the like of what the court has said to you in its brief and the ultimate one of what the court he said to me at the moment i'm assuming is sort of vague my question is were there my question was a good question yes without it absolutely just prior but i think what the court has said to you in his brief today and i think that this in itself compels that you not accept the specialness recommendation is that first this court and adjust its operations accordingly and third they recognize that that to create would form part of the constellation of laws by which the corps would have to operate so there's every reason to believe they decision in this court imposing the decree that equity to promise mr chief justice a minute please the court of florida has promised this entire case on the proposition that a cap on georgia's water consumption alone would result in a material increase in water to florida during drought without any change to army corps operations after two years of discovery in a five week trial florida failed to prove that case well but i don't think they've promised it entirely on that they've promised it on the fact that the corps may change how it allocates water that's what they say in the march decision should the supreme court issue a decree apportioning the waters of the a c f basin the corps would take those developments into account and adjust its operations accordingly so i mean the  decree granting florida greeter claims to water will at the very least change the facts on the ground and according to the corps itself cause them to adjust its operations accordingly mr chief justice we do need to distinguish between drought periods and non drought periods the entire trial was over drought periods and what the corps would do the corps just finished a ten year process of creating a water control manual that determine that during times of drought florida is entitled to five thousand cubic feet per second that was blast by the united states fish and wildlife service which studied the region and said that would be adequate to protect endangered species and dangerous species and so what the said in the record of decision and clarified in its brief in this court is that of course it would review and consider a decree or an order of this court but it also said explicitly that it is not bound by an order of this court and that it may or may not do anything right and it reminds me of sort of the contract bidding discrimination cases where you have someone who was discriminated against during the bid process we don't require that person to show well if i hadn't been i would have gotten the contract we just say if you show you were discriminated against in the process you get a fair shot like everybody else it seems to me it's asking an awful lot for florida have to say we know that the court is going to change things the way it benefits us well it's stead they just want to say well look they're going to make a different decision if they've got more water to allocate your air i would be able to argue that and right now they can't even argue that well florida can certainly argue that the the court has issued its water control manual there is an a p a challenge that has been brought to that manual that case is proceeding in the district court of district of columbia florida has not joined that suit i suspect it's because the arguments that that would have to make in that suit would confirm that the core is in fact necessary to solve the problem and so there's been a lengthy administrative process where florida has made all the same arguments it makes in this court and it chose not to challenge the water control manual  feet comes down the flint ok so now the corps doesn't have to give five thousand it can only it need only give two thousand say so it has three thousand more on my right so far so far i would quarrel with the hypothetical because there's no possibility of that much water being general i'm just using it as a be example but it's some amount it's some amount i was using it as a be exams ok ok now they have a lot more water say goodbye in my hypothetical three thousand cubic feet now what reason is there to think that they won't give a teaspoonful they won't give a little bit at least of that extra water they never thought they had to help the muscles on the oysters and the others down in florida what reason it doesn't say in the chart what they'll do in that situation all it says is that they guarantee five thousand feet they've got there five thousand  happens at three thousand is coming from flint and now what will they do with that extra and and the answer i think is we don't know they won't say but you'd think you were being equitable here would be equitable to give at least a little bit to florida now what's wrong with the justice briar the core is governed by panoply of federal statutes congressional dictates and mandates as to how to control the water in this basin and is not as simple as if extra water comes in then you just pass it through to florida because they've articulated one concern there are multiple interests in the basin there are multiple stakeholders and multiple congressionally defined purposes having studied this basin for a decade the corps has determined that in periods of drought and under its drought operations when the reservoirs get to a critically low level the corps will release five thousand cubic feet per second and that's not just an accidental number that number was chosen because that number allows the corps to protect the endangered species down stream as the fish and wildlife services said but also to protect water quality water supply in atlanta navigation flood control hydro power there's a multitude of reasons and we but that's not correct justice ginsburg in periods of drought the corps answered the question that it will continue to pass five thousand c f s and store the remainder of the water saved by that cap in its reservoirs out there now untrue statement in their brief where they say the us does not mean to suggest that a consumption cap would provide no benefit to the corpse operation in the basin or to florida and they say as explains the special master increase basin inflows would generally benefit the a c f system by delaying the onset of drought operations by allowing the corpse to meet the five thousand your adversary points to a lot of history showing that when there's increased water the corp's gives increased water under its own protocol the court says under its own protocols when there's increased water injury non drought situations more water flows to florida isn't that their case just a sort of my or the special master of ph sixty five found on equivocally that florida presented no evidence assessing the impact of a consumption cap on shortening the course drought operations or an increase crease passthrough at lows i disagree if i can point to your colleague has suggested to  lot of record evidence not just if she's statement but the statements from dr allan dr gilbert dr green and from other experts  showing that would he would we just say the special master was wrong or that he even explain why that evidence was inadequate well he wasn't wrong he was absolutely correct all of the individuals that your honor just mentioned are biologists or deal with issues like salinity the people who florida hired to assess whether water would pass through in these non drought shorten drought operations periods were dr hornberger and dr water just as a matter of physics it's all going to get to florida and you know there's there does seem as you suggest to be not all that much in the record showing that that's true but it seems as though it should be true do you think it's not true with regard all of that saved water will eventually go south the water at it is a question of timing and when the water will go south during a drought we know the in the course answer that question all the evidence at trial surely but i was talking about nine drought correct so let me let me address that directly with regard to shortened drought operations the evidence georgia did present evidence on this florida did not and there's a reason because i think your honor one of just prior you maybe use the word common sense there's nothing commonsense about the operations of this basin it is incredibly complicated there are five reservoirs they're subjected to different rules by the army corps they have different hydrologic conditions they serve different purposes that's why we create or the corps creates complicated computer models incredibly complicated and both sides hired experts to evaluate the situation your question under give me an example of how it would be an additional two thousand units saved in georgia would not benefit florida to the same amount how would that be possible certainly the problem is with the hypothetical because as i said before you cannot get two thousand cubic feet per second georgia consumes a much smaller amount of water and this is just in the agricultural part of the second concern you any respect i think you're fighting a hypothetical and maybe maybe you could direct your that that will reduce the onset of operations i would have thought and maybe this is just we're role stuck is that's what addressability at least and then you have to go away benefits  harms which didn't seem to take place here just discourse which the united states says explicitly in its brief at seventeen that those are hypotheticals and they say also it is a quote not attempts to precisely quantify any y operational to georgia did quantify this we ran the corps computer model and we determined that as you add the water that could be saved and georgia didn't skim we modeled a thirty percent reduction in water use on the georgia side of the line and the truth is is that the amount of water that that generates just does not move the period in which florida goes i'm sorry when the core goes into drought operations it's just not enough water to know that when you're in  possible for the amount of water saved in georgia not to benefit florida ok well that's i think a different question when there's plenty of water in the system when there's rain we're not in drought florida has not claimed it needs additional water it gets plenty of water just through gravity and meteorology that and they've said there must be a set of months that are dry so that florida once more would air but not drought and the corps operations account for that went and that's baked into the that the special master included in his report but the important point is florida it's not a mistake that florida didn't present this evidence and i do understand the court statements that that seems common sense that it would shorten drought operations or make it fewer and farther between florida didn't present its modeling because when florida's expert dr horton burger ran the resin model that the corps uses he tried to fifty percent cap and it still didn't move drought operations  some kind in front of the big ag in demo thirteen do you know what i'm talking this thing yes ok seem to be george and they say seventy one days in two thousand and seven floor would receive more water flow from a cap on georgia's water consumption that seventy one days they get more water seventy one days they get more water that means the corps has to reduce less water if the court has a you know the court can save the court can say water on its side in the chattahoochee right and so if they have more water saved up there in whatever those zones are one two in three they are going to get into three later and so they get into three later they have more water to get out later is that right now just what i'm trying to tell you is and the expert that special i know that is on your side but that wasn't what the rest of it another part of his analysis shows that we don't shorten the drought operations and those seventy one days are small increments that don't benefit florida they're not really on not who said what and such and such but what the merits really are it's our case could we say we want to request the s g to provide material experts and to have a hearing and the hearing will focus on what would be best for the region taken in light of all the demands and florida and georgia and anyone else who wanted as an a micah's perhaps could participate so that the master can get a decision here about whether or not there should be or should not be less water going from the flint to the grazing areas in atlanta  see what i have in mind is there some way of working that out the corps not in atlanta south of atlanta court surely has the power under its a ruling that makes sense it would not be for two reasons one is that the army court just went through that entire process everyone was heard and there is an a p a litigation ongoing today about just those questions that your honor articulated the second reason is that while i understand the government tells us that in its protocols it's not charged with looking at the harm we're looking at that it's not charged with looking at the harm to the oysters or the muscles or the other things that are being affected here soon i don't think it's  that addresses the issues of the harms that are in question in this litigation that's not correct that the army corps through the endangered species act does look at the mussels and the sturgeon that live in the apalachicola river it has said that the apalachicola bay is beyond its jurisdiction and that's why to chief justice roberts this question the court has said and the pitch to dash sixty two of its final environmental impact statement that it doesn't have the authority without congressional action which is what to to help the oysters of the bay and that's why this is this case isn't ill fitting vehicle for that but i do want to win it what is the standard that you would require florida to meet presumably they don't have to show to an absolute certainty that you know they'll benefit in a particular way but what do you think the standard is the standard is that florida should be required to show by clear and convincing evidence that it's really does that come from by clear and convincing evidence that comes from colorado versus new mexico and colorado versus kansas it's consistent is that at the equitable weighing stage or an initial matter almost of standing well if you didn't this is not a standing question this is as a matter of equitable apportionment the court has consistently said both in equitable balancing and at the preliminary stage of injury and benefit that it's clear and convincing evidence and that makes sense given the sovereign interests of the states it is you know the court has consistently recognized that ok i interrupted you you were saying they  show by clear and convincing evidence that they requested remedy will provide a material benefit and that is consistently mentioned in washington for versus oregon the court asked is it materially more advantageous in idaho versus oregon the court a to be numbers of fish justifying additional restrictions and colorado versus new mexico put the burden on the state seeking to disrupt the status quo the burden to prove benefits of a diversion must stand substantially outweigh the harms that might result now florida told the court the special master at the beginning of this case there's a quote from docket number one twenty five twenty five twenty nine if you conclude after a trial that caps on consumption will not reach us florida's harm th florida will not have proved its case that's exactly what happened here florida did not prove its case it did ah prove that caps on consumption would redress their harm but i mean obviously that depends on what you mean by redress if the court comes came up and said we will definitely review our running of the whole system in this in this basin if the supreme court tells us that florida under an equitable portion that would get more water will take another look at it is that redress it's not redress it's too speculative in the court requires clear and convincing evidence of a material benefit but the core would have to go through a whole public comment process that has taken decades and in that scenario i think what we learn of the things that we're to problems with this special report he seemed to think that the benefit had to be immediate instead of eventually not immediate but the time when the poor is in drought operations could be very lengthy and florida when the corps coming out of run operations there's plenty of rain florida has not made the case that it needs more water at a time when there's plenty of rain and water in the system it's just that water just washed out to sea and won't bend and it benefit anybody when they really need it and that's what the whole trial was needle mr chief justice and may it please the court this case has proceeded from the outset on the premise that the corps of engineers operations have to be taken as a given and any decreed by this court would not require a change in the corps operations that flow directly from the fact that the united states is a required party but has not been enjoying because it can't it hasn't waived that sovereign immunity and therefore the court cannot order the corps of engineers to take any different operations or we don't even need we can order the corps or me we can't but surely you will i mean i understand that's what you see in the march thirty you're not going to ignore the determination of under court that what georgia has done is inequitable in arrogating to itself water that should be flowing down and maybe at the end of the day you say well we've got other interests we're still going to do this but that would change the facts on the ground wouldn't the decision from us yes but let me let me explain the role of the corps operations here because i think it's important this is not an ordinary apportionment case where there is no act of congress that that has been involved here or there is an act of congress now congress pursu commerce clause and other authorities can and acts statutes or approve compaq's that regulator apportion water in a stream in arizona versus california for example the court concluded that the boulder county and project had directly allocated the water and so there was nothing left for the court as a matter of equitable portion meant to do here congress is an act of a statute that doesn't directly apportion between the states but it does heavily regulate this river system if the protocols that are in the corps manual had been enact it into law i think there's no question that this court would have to respect that could not order the court to change that and would have to take them as a given here what congress did ed was to delegate to the corps of engineers the responsibility for balancing all those different interests and to do so through an extensive public process that takes into account all the basin interests the hydro power which is one of the primary purposes of of this integrated system of dam begin with flood control and dangerous species act and also refilling water and being conservative so if it if a drought is extended that there will be enough water to serve all of those purposes congress fest did in the corps of engineers why don't dance is a wave to sovereign immunity get into this and try to help the special master reach an equitable solution but for it for the reason that i say that i said that here you have an act of congress that delegate the power to the core in the first instance the course judgments would be reviewed under the a p a under the arbitrary and capricious standard after and balances all of the interests it's not really a role for this court to to de novo determine a determination by the special master that more water should come into the system negatively affect your discretion well  depends how that plays out as we say that i don't think the court could order the corps to take a different position but under the corps own protocols there are circumstances in which additional water that that would be free would flow to would flow to florida there is not non of the drought period because the the corps has set a minimum in order to preserve water in case the drought is extended but above the five thousand taken no position on whether that extra release would actually provide in the serial then right we have not taken we have not why not could we ask you to take that position by i suppose you the government could participate in that as an evidentiary matter but but it's a i asked a very specific question could we ask for an in the spring that does that i suppose you could if you think in other words what do you think we should do do you think for us from that from the united states perspective we think that what we are not taking a position on whether florida has shown that that a cap would produce sufficient water to justify the cap in terms of benefits to florida are in things you do think mr kneedler am i wrong your brief says that if there were a consumption cap florida would get material amounts more water there would be additional water it depends what you mean by material would they be with would they come at the right time such that it would it would produce a material benefit to the ecosystem in florida  at the record that was before the special master there was quite a lot of evidence that with more water the ecosystem would be improved do you think as i hear you you're saying and there would be more water however much water is saved in georgia comes to florida no not that that is not necessarily true because the corps operates the five dams as an integrated whole and it does so in part on basin and flow but in part on how much water is stored in the reservoirs at any particular time of year so there are certain situations looking at total basin inflow for example of more water came in from the flint river that would free up water to be stored upstream for operations there is a period there are on under different times of europe from five to ten thousand feet all of that flow would go to florida but there are other times when only fifty percent of the flowed go to florida there are other times when none of the additional flow would go to florida that  that is under the protocol but if the court concludes that a cap within that not not taking that framework as a given that a dish that a cop would produce a decision water the court does not have a stake in that fight i did want to address one point about the the production the the question of how certain it is what the court will do the court will do this is a different situation than the typical case where the is a third party and and how likely is that there will something something will happen congress has adopted a separate statutory regime in which the corps has to decide what to do with the range of additional water that may be available at any particular time but i just i'm sorry to interrupt but it does seem fairly important you say you to do something but you've told us that you will take it into account and it seems to me that that's arguably real redress to florida that you're going to take into account in decisions saying that to believe they're entitled to more water that georgia is improperly taking its water and you say you'll take it into account well and several things about that to say that florida is entitled to more water can't ignore the regime that the corps of don't have any stake in the argument about whether we want more water would help poorer can't we ask you that question when we're talking about your expertise is the well whatever you decide will use their expertise to follow but then you don't tell us what to decide in you're the experts well the core is the expert through the process of the of the manual which is exactly what congress meant the court if this court going back to the chief ch ief justices question if what would the core do if this court entered a decree first of all if the court entered to do korea that florida needed more water than the corps of engineers operation protocols right now provide for that's really sort of inconsistent with the way this case began which is that that that it was premised on the fact that the corps procedures would not have to be changed and it's not to say that the that i suppose the court could decide to do that anyway we don't know what i'm sure you've got this point but i mean i don't know what to do without knowing what the court is likely to do and i agree with you that it's florida's fault at the beginning they said we don't want the court in here and now it seems like you're their best hope or and so so so that's why i seriously ask you the question if you were sitting right here in my shoes what would you do well what one chorus would be if you agree that florida has not made the showing that it that it said that it would make that there would be be material benefits from the increase flows florida has the ability to challenge the corps of engineers master manual and say that it does not provide sufficient downstream flows for florida or to petition the court to adopt a new a new manual and revise that it's not at all clear that the governing statutes have finished even allow the corps of engineers to allocate additional that is through and will portion second we've heard a lot about the master control water manual the record of decision itself says that the adoption of that manual quote in no way would prejudice this court in the dock in an equitable apportionment and i think the arguments we've just heard would result in a great deal some of ours what do we do with the special masters conclusion on sixty five sixty six where they credit the report by george's expert doctor bennett and and dr benton did and we did a modeling and came to the conclusion that even if there was extra flow it wouldn't materially change the environmental impact right that's that that's your greatest challenge special master was relying on the wrong gross ability standards the evidence you beauty it was relying on a model that didn't take into account discretionary releases let me give you some more evidence if we if we  say that he couldn't that he had to follow the army corps and assume that the army courts per protocol would control is beating it right no because he wouldn't be addressing twenty three says the water's going to go through and on paragraph eighty five says even modest amounts will help floor justice ginsburg you're right even just preventing the situation from worsening is going to provide redress hornberger addresses that it paragraphs one twenty five to one twenty six when it comes to what congress has said what i would point to is some statute that my friend mr kneedler neglected but the united states pointed to in its post trial its motion to dismiss brief where it said that there's no reason to assume that the core would ignore a decree and it pointed to the compact statute passed in one thousand nine hundred seven were congress directed federal fishel to the maximum extent possible to help facilitate the state