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U.S. SC hears water dispute between states

By Jessica M. Karmasek | Jan 10, 2011


WASHINGTON (Legal Newsline) - The U.S. Supreme Court heard oral arguments on Monday from attorneys for Montana and Wyoming in a dispute over the division of water from the Yellowstone River and its tributaries.

Montana, which filed its suit in January 2007, contends that Wyoming's use of "new and expanded water storage facilities" in two tributaries of the Yellowstone -- the Tongue and Powder rivers -- violates Montana's rights under the Yellowstone River Compact of 1950.

The two rivers originate in Wyoming and flow into Montana, where they join the mainstem of the Yellowstone River. The Yellowstone River flows across Montana and joins the Missouri River just after crossing into North Dakota.

Wyoming, according to Montana's suit, "refuses to curtail consumption of the waters of the two rivers in excess of Wyoming's consumption of such waters."

Also, according to Montana's suit, Wyoming has allowed "the construction and use of groundwater wells for irrigation and for other uses and has allowed the pumping of groundwater associated with coalbed methane production" in the two rivers' basins.

"By undertaking and allowing the aforementioned actions, the State of Wyoming has depleted and is threatening further to deplete the waters of the Tongue and Powder rivers allocated to the State of Montana under Article V of the Compact," the Montana suit said.

"By depleting the waters allocated to the State of Montana, the State of Wyoming has injured the State of Montana and its water users.

"Unless relief is granted by this Court, water use in the state of Wyoming in excess of its equitable share of the waters of the Tongue and Powder rivers will continue and increase, resulting in substantial and irreparable injury to the State of Montana and its water users."

Wyoming, in its April 2007 response, says Montana's allegations that Wyoming has developed groundwater, sprinkler irrigation systems, new reservoirs and new irrigated lands since 1950 are allegations of conduct that do not violate the Yellowstone River Compact.

Wyoming argues that Montana also fails to adequately allege that it has suffered injury caused by any of the post-1950 development in Wyoming.

The Supreme Court, in this case, appointed a special master -- Barton H. Thompson, Jr., a Stanford Law School professor -- to review the case and make recommendations.

Last February, in his 149-page first interim report, Thompson recommended that the Court deny Wyoming's motion to dismiss and grant in part Montana's motion for partial summary judgment, and deny Anadarko Petroleum Corporation's motion to intervene as a party.

Thompson wrote in his report that "even if the language of the Compact were less clear, the history of the Compact negotiations shows that the Compact was intended to protect pre-1950 appropriative rights in Montana from new diversions and withdrawals in Wyoming subsequent to January 1, 1950."

He also wrote that Article V of the Compact "clearly protects Montana's pre-1950 appropriations from irrigation of new acreage in Wyoming if that irrigation prevents sufficient water from reaching the pre-1950 uses."

Montana, however, cannot demand that Wyoming release water from its reservoirs "to satisfy Montana's pre-1950 uses if the water was stored at a time when sufficient water was reaching Montana to satisfy those uses," Thompson noted.

The Compact, he wrote, also protects Montana's pre-1950 uses from interference by at least some forms of groundwater pumping that dates from Jan. 1, 1950 "where the groundwater is hydrologically interconnected to the surface channels of the Yellowstone River and its tributaries."

The question of the exact circumstances under which groundwater pumping violates Article V(A) (of the Compact) is "appropriately left to subsequent proceedings in this case," Thompson said.

Since it is a dispute between states, there is no lower court ruling for the justices to review. However, the Court will look at Montana Attorney General Steve Bullock's objection to Thompson's conclusion that Montana had no claim under Article V that Wyoming users' increased efficiency in irrigation methods resulted in depletions downstream.

In one of two exceptions filed for the state last May, Bullock argued that "any interpretation (of the Compact) that allows an upstream state to interfere by any means with pre-1950 rights in a downstream state must be rejected."

He also wrote that Thompson, in his evaluation as special master, "misunderstood the nature of Montana's claim and disregarded the Compact's plain language."

North Dakota also is a defendant in the case, but no claims have been made against the state.

Also, Justice Elena Kagan has recused herself. Before serving on the nation's high court, Kagan served as U.S. solicitor general for President Barack Obama, representing the federal government before the Court.

Last June, the Obama administration filed a 38-page amicus brief in support of Thompson's findings.

Neal Kumar Katyal, acting solicitor general, said in the brief that the exception should be overruled, the motion to dismiss should be denied in accordance with the special master's recommendation, and the case should be recommitted to the special master.

Thompson, the federal government said, "correctly concluded" that the Compact does not override Wyoming's law of prior appropriation concerning increased irrigation efficiencies.

The Court, it said, also "need not resolve at this point" the extent to which Montana may seek relief against Wyoming for breach of the Compact even when pre-1950 water uses in Montana have an intrastate remedy for any shortage.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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