NASHVILLE — Tennessee Gov. Phil Bredesen may not take it seriously, but Georgia officials said Tuesday that facts and legal precedents favor them as they lay claim to long-established parts of Tennessee including a section of the Tennessee River.
“Georgia has a legal, historical and ecological claim to this water,” said Georgia state Sen. David Shafer, R-Duluth, Senate sponsor of a resolution that seeks to change a 190-year-old boundary between the two states.
In remarks this week, Gov. Bredesen said it is his opinion that the claim has “much more of the attributes of a stunt by somebody.”
“We’re not going to change the border,” Gov. Bredesen said.
Sen. Shafer, however, argues that because Georgia never ratified the 1818 survey of the state line, the true border remains the 35th parallel set by Congress in 1796. The parallel lies about 1.1 miles north of the current state line.
Much of the legal, historical and geological claims now being made by Georgia are based on a “confidential” 18-page report developed by private attorneys and an engineering firm with input from several public officials.
Released last week, the report makes clear the main thrust of Georgia’s push is access to the Tennessee River, a move intended to help a state challenged by rapid growth and drought, particularly in the Atlanta area.
Titled “Tapping the Tennessee River at Georgia’s Northwest Corner: A Solution to North Georgia’s Water Supply Crisis,” the report attempts to make the case that Georgia’s intended border takes in part of Nickajack Lake in Marion County near Chattanooga.
The report cites several past cases that have gone before the U.S. Supreme Court, which retains original jurisdiction over state boundary disputes. Those cases indicate Georgia stands a good chance of winning, according to the report’s writers
Georgia attorney Brad Carver, who helped craft the report, said Georgia has never “acquiesced” to Tennessee’s ownership of the property. The report states Georgia sought to take actions on the disputed property in various ways in 1887, 1905, 1915, 1922, 1941, 1947 and finally in 1971.
“I think it says that we have a pretty strong legal case here,” said Mr. Carver, who was aided by a water law expert at the University of Mississippi in drawing up the report.
The report states Georgia retains “riparian” or river bank rights to the Tennessee River. It also says 6 percent of the Tennessee River comes from North Georgia sources. And citing a 2004 TVA reservoir study, writers argue Georgia could take 264,000 gallons of water a day from the Tennessee River without appreciable effect.
Tennessee Rep. Henry Fincher, D-Cookeville, an attorney, said the report’s authors “fundamentally misunderstand” legal principles including prescription, a method of acquiring property by continued and regular use without permission of the property owner.
He said Tennessee has maintained “dominion and control” for nearly two centuries with Georgia never filing suit and doing “nothing other than to write a few letters.”
“I would have more sympathy for the Cherokees coming back and asking for their part of Georgia than I do for Georgia coming back and asking for ... part of Tennessee,” Rep. Fincher said.
The report proposes building an intake pumping station in the Nickajack Cove area to send water to thirsty parts of Georgia.
“The intake pipe would be submerged out to the main channel of the Tennessee River,” the report states.
The claim also includes a mile-wide swath of territory stretching from Marion County in the west to Bradley County in the east that would take in parts of Chattanooga and East Ridge.
“I think it (report) lays out Georgia’s legitimate claim to all the territory in North Georgia to the 35th parallel which is now considered to be part of Tennessee, including the part I’m in right now which is East Ridge,” said Dade County, Ga., Executive Ben Brandon, in a phone interview.
Georgia resolutions, which separately passed the House and Senate, would create a Georgia boundary commission and direct Gov. Sonny Perdue to discuss border issues with the governors of Tennessee and North Carolina.
Changes to the border could occur if both states agree and Congress approves the action. Absent that, Georgia officials are faced with going to the U.S. Supreme Court.
Tennessee lawmakers have generally ridiculed Georgia’s effort. They are responding with their own resolution that says Georgia gave up any rights through “long acquiescence” to Tennessee control.
Sharon Curtis-Flair, a spokeswoman for Tennessee Attorney General Robert Cooper declined comment about the Georgia memorandum.
Andy Sher is a Nashville-based staff writer covering Tennessee state government and politics for the Times Free Press. A Washington correspondent from 1999-2005 for the Times Free Press, Andy previously headed up state Capitol coverage for The Chattanooga Times, worked as a state Capitol reporter for The Nashville Banner and was a contributor to The Tennessee Journal, among other publications. Andy worked for 17 years at The Chattanooga Times covering police, health care, county government, ...