published Tuesday, February 18th, 2014

Time running out to move Tennessee-Georgia state line before case goes to Supreme Court

Poll
Should Tennessee share its water with Georgia?

Is Georgia's bid to tap the Tennessee River a bluff?

Or is it a ticking bomb that could cost Tennessee parts of Chattanooga, East Ridge, St. Elmo and Lookout Mountain?

The answer may be clearer soon.

The clock is winding down for Tennessee to accept what a Georgia legislator described as a "gift": 66.5 square miles Georgia says it lost almost 200 years ago when a surveyor misdrew the state line south of where it belongs.

Georgia lawmakers say Tennessee can have the strip of land -- and its 30,817 residents -- provided the Volunteer State gives up an unpopulated 1.5 square miles near Dade County so a pipeline could be built to pump up to 1 billion gallons a day from Nickajack Lake to water-thirsty Atlanta.

If Tennessee doesn't agree by the time the Georgia Assembly ends it 40-day session, then Georgia Attorney General Sam Olens is instructed to file suit in the U.S. Supreme Court, according to a resolution that Georgia lawmakers passed overwhelmingly last year.

As of Monday, the Georgia General Assembly was more than halfway through its session, and lawmakers plan to finish by March 20.

"If I were a legislator in Tennessee, I would say, 'These people are giving us a gift. We should take it and run with it," said state Rep. Harry Geisinger, R-Roswell, who wrote the resolution that would let Tennessee keep the disputed land in exchange for water.

"I'm a little bit surprised that Tennessee hasn't taken some action," he said recently.

Geisinger's resolution made headlines last year, but it isn't on the Tennessee General Assembly's radar now.

"We're clearly not too worried about it, because I haven't heard about it," said state House Majority Leader Gerald McCormick, R-Chattanooga.

McCormick is unconcerned about the potential for a lawsuit in the U.S. Supreme Court, which settles interstate boundary disputes.

"That's fine. They might as well go ahead," he said. "More power to them. We're not going to move the state line, and we're not going to give them the Tennessee River."

Another Ellis Island?

Geisinger said there's precedent for the Supreme Court to settle in Georgia's favor. The high court has moved five state boundaries in the past 16 years, he said, including when it took 90 percent of Ellis Island, the entry for millions of immigrants, from New York and gave it to New Jersey.

That happened, Gesinger told a state Senate committee at a hearing last year, despite then-New York Mayor Rudy Giuliani protesting, "If my ancestors had known they were getting off in New Jersey, they would have never come across the ocean."

Other experts are less certain the high court would rule in Georgia's favor -- or even hear the case.

"I would more or less believe Georgia has acquiesced to this over the years, and that means the borders are established," said Joseph Zimmerman, a political science professor at the University at Albany State University of New York, who's an expert on interstate disputes.

"Georgia is free to file," Zimmerman said. "But this [requires] the expenditure of quite a bit of money, if you're serious about trying to win."

Crews Townsend is one of five attorneys with Miller & Martin's Chattanooga office who jointly wrote a cover story in the May 2008 Tennessee Bar Journal about Georgia's claims to move the boundary.

"This comes up every 20 years, or so," said Townsend, who lives in Lookout Mountain, Ga. "Tennessee most often ignores it, and it dies a quiet death.

"Until you have a drought, it kind of stays quiet," Townsend said.

One sticking point would be reassigning Tennessee cities and residents to Georgia, which Crews thought would be an unprecedented action for the high court.

Border is wrong

There's no doubt Georgia can prove that the state line should be at the 35th parallel, about a mile north of where it is now, the Chattanooga attorneys wrote.

The problem stems from a survey done in 1818 by Georgia-appointed surveyor James Carmack and Tennessee-appointed surveyor James S. Gaines.

Lore has it that for reasons ranging from bad weather to fear of Indian attack, the Carmack-Gaines survey party set the boundary line "one mile and 28 poles from the south bank of the Tennessee," the attorneys found.

"It's been so long," Crews said. "It would probably be a difficult lawsuit, even though the survey is wrong. That's probably why it goes away. The [Georgia] attorney general probably looks at it and says, 'We don't have a very good lawsuit.'"

Lauren Kane, spokeswoman for the Georgia attorney general's office, wouldn't comment about whether Olens would bring suit in the U.S. Supreme Court over the boundary dispute. Nor would Kane say whether the General Assembly has the power to direct Olens, a Republican elected to a four-year term in 2010, to file suit.

"This is not a subject I can discuss," Kane said. "I can't discuss it at all."

Geisinger thought Georgia's attorney general would have to sue.

"Do you ignore the Georgia Assembly if you're the attorney general?" he asked.

Contact staff writer Tim Omarzu at tomarzu@timesfreepress.com or 423-757-6651.

about Tim Omarzu...

Tim Omarzu covers Catoosa and Walker counties for the Times Free Press. Omarzu is a longtime journalist who has worked as a reporter and editor at daily and weekly newspapers in Michigan, Nevada and California. Stories he's covered include crime in blighted parts of metro Detroit and Reno, Nev.; environmental activists tree-sitting in California's Sierra Nevada foothills; attempts by the Michigan Militia to take over a township┬╣s government in northern Michigan. A native of Michigan, ...

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