The Alabama Supreme Court on Friday released a ruling in the case of Cahaba Riverkeeper, Inc., Cahaba River Society, David Butler, and Bradford McLane v. Water Works Board of the City of Birmingham and State of Alabama ex rel. Alabama Attorney General Steve Marshall (R). The court found that the plaintiffs had standing in the court to proceed with their lawsuit.
In 2001, then Alabama Attorney General Bill Pryor (R) negotiated a settlement between environmental groups and the Birmingham Water Works Board (BWWB) whereby the Water Works agreed to maintain thousands of acres surrounding Lake Purdy, the greater Birmingham area’s primary water source, and the Cahaba River, in its natural state for posterity and to provide protection of the vital water resource. The decision by the BWWB to surplus some property and sell it to developers prompted Cahaba Riverkeeper, the Cahaba River Society, and others to file a lawsuit alleging that the BWWB was in violation of the terms of that original agreement. They also maintain that that land was supposed to have been put into a permanent conservation easement for its preservation and that BWWB failed to do so.
Alabama Attorney General Steve Marshall (R) however intervened and stated that only the AG’s office could enforce the 20-year-old agreement negotiated on behalf of water ratepayers by his predecessor and that the plaintiffs, even though they are water customers of the BWWB had no standing in court to sue. The circuit court agreed with Marshall’s office. The environmentalists appealed. On Friday, the Alabama Supreme Court unanimously found in their favor and remanded the case back to the lower court for the suit to proceed.
1819 News asked Tuscaloosa attorney Luisa Reyes to explain the court’s decision.
“I have to say, this is an instance where the Alabama Supreme Court made the absolutely correct decision,” Reyes told 1819 News. “In fact, that the circuit court ever held differently is mind-boggling. And Justice Mendheim even speaks out rather strongly against Marshall's argument that there was never an intent to create a conservation easement on page 30 by referring to his argument as a 'strange response' which is 'all the more curious' given that these easements didn't exist under the common law so they have to be statutorily created.
“Even a lay reader could see that in paragraph 7 it doesn't grant an exclusive right to enforcement to the Attorney General. And the Alabama Supreme Court's interpretation of the contract law where if the plain language does not produce a conflict, then one clause can't override another is a rather basic legal principle. That fact that Marshall was trying to use section 7 to override the plaintiffs' authority of enforcement granted in section 6 means he was probably hoping the courts wouldn't read the agreements closely or something. I seriously doubt it could be due to ignorance, but it does seem like he entered into this suit rather unnecessarily.
On Monday, Cahaba Riverkeeper released a statement in which it stated, “The Alabama Supreme Court has ruled unanimously in favor of Cahaba Riverkeeper, Cahaba River Society, and the Southern Environmental Law Center in their efforts to permanently protect land held by the Birmingham Water Works Board that safeguards a major source of Birmingham’s drinking water.”
The lawsuit maintains that the Board agreed to permanently protect 6,000 acres of land, paid for by ratepayers, with a conservation easement under the terms of a 2001 settlement agreement, yet the Board has failed to record a valid conservation easement. In the past, previous Boards sold a parcel of the land for a gas station and discussed marketing additional parcels for sale.
The Supreme Court ruling allows their lawsuit to proceed. To read Justice Mendheim’s decision: Link here.
“The Alabama Supreme Court’s decision is a win for Birmingham’s drinking water and the hundreds of thousands of people who rely on the Cahaba River watershed,” said David Butler, Cahaba Riverkeeper and staff attorney. “The Board has a responsibility to protect this land in the public interest, and to ensure that Birmingham communities have access to clean, safe drinking water.”
“Previous generations paid to protect this land, and it should be permanently protected for future generations as well,” said Beth Stewart of Cahaba River Society. “We look forward to working together with the Board to find the best mechanism to protect these lands with conservation easements consistent with the Court’s holding and in the best interest of the ratepayers. This outcome would help keep costs low and ensure clean, affordable water for all water users.”
“The Supreme Court’s decision to uphold Alabama’s conservation easement statute protects not only this land, but land under conservation easements across the state,” said Sarah Stokes, Senior Attorney for the Southern Environmental Law Center. “We look forward to establishing in the circuit court that the Birmingham Water Works Board must fulfill its obligation under the signed settlement to create a permanent conservation easement for this critically important land.”
The central issues of whether or not the land is sufficiently protected by the BWWB and whether or not BWWB has improperly surplussed land that it owns will now be determined by the circuit court.
To learn more about Cahaba Riverkeeper: https://cahabariverkeeper.org/
