Water War Part 3: An Appeal Denied

The first battle of a war is seldom the last.  News of an initial defeat often hardens the vanquished to greater resolve, leading to another battle or, more likely, more battles.

Defeated in federal court, Falls Church faced a decision in May 2007: seek a truce in the Water War and perhaps negotiate a treaty, or fight another round with the Fairfax County Water Authority.

Beaten But Unbowed

City officials understandably were disappointed with Judge Hilton’s opinion.  “We felt we had a good case and that the outcome could have been different,” said Mayor Robin Gardner in an interview with the News-Press.

After maintaining that FCWA was still approaching potential customers in Falls Church’s service area, and noting there had been no substantial contact with Fairfax officials in several months, Ms Gardner observed, “The outstanding issues here do need to be resolved.” Evidently the mayor and the city council soon decided to again seek resolution of those issues in court, as Falls Church filed an appeal within days of the interview.

Hopes were high.  City Attorney Roy Thorpe told the New-Press, “I am confident that upon appeal the ruling will be reversed.”  Ironically, Mr Thorpe himself did not argue the case in the appeals court, as the City chose to retain outside counsel.  Late that year he would announce his intention to leave his post, having served since 1996.

Mr Thorpe retired in June 2008 and was replaced by John E Foster who, in a further irony, had served the past eight years as an assistant county attorney in Fairfax, which presumably would force his recusal from any cases involving the County.

On to Richmond

Rulings of the US District Court in Alexandria may be appealed to the Federal Court of Appeals in Richmond.  While filing deadlines are tight, matters often do not come before the Court for months.  Thus the second battle of the Water War did not commence until 2008.

The City’s appeal was heard before a three-judge panel on January 31.  Judge Allyson K Duncan, writing for Judges Roger L Gregory and M Blane Michael who concurred, handed down a 12-page opinion on April 4 which affirmed Judge Hilton’s earlier ruling.

In its brief to the appellate court, Falls Church asserted that Fairfax Water’s attempts to provide service to customers in interface areas would “interfere with the implied, but nonetheless obvious purposes and objectives of Congress in establishing the Washington Aqueduct” and therefore “stand as an obstacle to [its] . . . most effective economic use.”  Judge Duncan termed this a claim of “obstacle preemption.” [Quotations in the original.]

The judge noted that the Supreme Court instructs that a federal statute presumably does not supplant traditional state regulatory law unless Congress made its intention “clear and manifest.”   The judge found no such intention in the structure and purposes of any of the four Acts cited by the City to supersede Virginia’s traditional authority over water utility regulation.

She wrote that the 1947 statute authorized the Secretary of War merely “to permit the delivery of water” to Falls Church in language she termed “conspicuously and unequivocally permissive.”  Further, she noted that the Act allowed for the termination of water service to Falls Church “at any time.”

In an interesting footnote, Judge Duncan observed that the City did not have a supply agreement for the delivery of Aqueduct water from Arlington County until 1950 (an agreement still in effect) and that it did not connect directly to the federal government’s water filtration plant until 1961.

Thus while Falls Church may have been providing water to Fairfax as far back as the 1930s, when it was still within the county, it actually had no access to federal water, directly or indirectly, until much later.  Clearly, this served to further weaken the City’s claim for relief via the Acts of 1859, 1926, and 1947.

Unable to sustain its preemption challenge, the City argued that a loss of customers to Fairfax Water might impact its ability to meet its share of contractual obligations under a water service agreement with respect to $75 million in loans that were taken out to assist in Aqueduct improvements, as mandated under the 1996 Act.

However, Judge Duncan observed that the 1997 agreement between Falls Church and the Secretary of the Army included provisions protecting the federal government against the risk of default and that the City’s ability to meet its obligations was accounted for, at least to some extent, within the terms of the agreement itself.

All Quiet on the News Front

The City’s defeat on appeal would seem eminently newsworthy, especially considering the earlier extensive coverage of the war in the local media.  But apparently neither the News-Press nor any blog ever mentioned that Falls Church had lost a second battle.  What had been front page news on several occasions now was deemed no news at all.  Although the appellate court’s opinion officially was classified as “unpublished” (so named because it did not appear in the printed volumes of circuit opinions), Falls Church officials obviously were well aware of the finding.

Twice defeated, the City declined to file an appeal to the U.S. Supreme Court, a move which likely would have had little chance of success, given the strength of the prior rulings and the absence of a dissenting opinion from any of the appellate court judges.  The Water War, or at least the hardest fighting, seemed to be over.  Perhaps the opposing sides now would come to some sort of understanding and resolve their issues without further resort to litigation.

However, filing an action sometimes results in a counter-action by the previous defendant against the initial plaintiff.   The war would continue in 2009, and by then Falls Church would be very much on the defensive.

This series will continue with an examination of Fairfax Water’s lawsuit against Falls Church City.

Part 2: How City Lost Suit Against Fairfax County

Part 1: A Tale of Two Lawsuits