Georgia continues its push for a sip of Tennessee

Water Down Theory

By Allison Gorman

Georgia continues its push for a sip of Tennessee
Tennesseans were amused at first by the audacity of the Georgia legislature’s assertion that the Tennessee-Georgia border should be nudged north to the 35th parallel. Sure, the parallel was the intended target when, in 1818, surveyors commissioned to mark the state line missed it by a mile, but the argument was less about land than water. Drought-stricken Atlanta is thirsty, and the 35th parallel just skims the Tennessee River at Nickajack. It also traverses a significant portion of metro Chattanooga, whose mayor responded with an audacious joke of his own: He dispatched a coonskin-capped emissary to Georgia’s capital to distribute bottled water from the back of a pickup.

The hilarity was short-lived. Last May, Georgia Gov. Sonny Perdue authorized Georgia’s attorney general to file suit with the Supreme Court if Tennessee refuses to negotiate–which Tennessee has done, perhaps because Georgia’s argument holds some water. While Tennessee’s constitution places the border on the 35th parallel “as marked by [the 1818 survey],” Georgia’s legislature has called for a corrected state line seven times since the 1890s.

The Supreme Court has settled many border disputes, says Chattanooga attorney Robert Parsley, but never one involving such a populous area. Parsley, who co-authored an article on the subject for the Tennessee Bar Journal, says this 75-mile-long strip is home to tens of thousands of people and several large manufacturers; it encompasses 15,000 acres worth $2 billion in Hamilton County alone–where, if the border were moved, cities like Lookout Mountain and East Ridge, Tenn., would legally cease to exist.

That possibility has fired the public imagination in both states. Precedent suggests a court battle would be protracted–and no slam-dunk for Georgia, Parsley says, despite the factual legitimacy of its grievance. The doctrine historically used to decide border disputes is that of “prescription and acquiescence”–squatter’s rights, on a larger scale. To prevail in court, he explains, Tennessee would have to show that it has exercised sovereignty over the land by tangible means–building infrastructure, for example, or levying taxes–and that Georgia has “acquiesced” by not doing the same. While 190 years of official kvetching may not equal acquiescence, Parsley says, Georgia’s historic reluctance to sue may be construed that way.

Even if Georgia were to prevail, it would face a significant barrier, he adds. Both a navigable waterway and a power source, the Tennessee River is heavily regulated; Georgia couldn’t stick a straw in Nickajack without multitiered federal oversight. And with seven states already tapping into the Tennessee, Randy Gentry, director of UTK’s Southeastern Water Resources Institute, says the river could provide Georgia only provisional relief. “Where you have recurring droughts for multiple years, it begins to tax that system,” he says. “I would be concerned if … conservation practices are not being implemented first.”

For now, Perdue’s spokesman says Georgia has no plans to sue Tennessee. If it does, the ultimate arbiter in this case may be the river itself.