Ridenbaugh Press/Water Rights

Hearing anew about the Yellowstone River water battle between Montana and Wyoming, justices of the U.S. Supreme Court appears to deliver their most critical questions to Montana – possibly offering a hint that Wyoming has an advantage in the long-running case.

As the New York Times reported, “A majority of the justices appeared skeptical over whether, under the Yellowstone River Compact signed by the two states, Montana had any right to stop Wyoming farmers from making more efficient use of water through modern irrigation techniques. Montana, which is downriver from Wyoming, claims that by using sprinkler irrigation, Wyoming farmers are using more water than is allowed from the Powder and Tongue rivers, both tributaries of the Yellowstone River.”

The battle has been ongoing for years.

The Yellowstone River Compact Commission notes that “The Yellowstone River Compact was ratified in 1950 and became effective in 1951. The Yellowstone River Compact Commission is a three member commission charged with apportioning the waters of the Yellowstone River and its tributaries. The Compact was entered into by Montana, North Dakota and Wyoming to: provide for an equitable division and apportionment of the waters of the Yellowstone River and its tributaries; encourage the beneficial development and use of the Basin’s waters, recognizing the great importance of water for irrigation that would arise from future projects or programs for the regulation, control,and use of water in the Yellowstone River Basin; further intergovernment cooperation and remove causes of controversy over distribution and use of water.”

Only Montana and Wyoming, however, are in dispute in the current case.

The case grows in considerable part out of an increase in irrigation water use by farmers in Wyoming. A special master appointed by the Supreme Court held that this did not violate the terms of the compact, but various interests in Montana disagreed. The tenor of the court hearing seemed to suggest a general agreement with the special master.

On January 10, Montana Attorney General Steve Bullock will defend what Montana argues is it’s share of the water that flows into the state from Wyoming in an argument before the United States Supreme Court.

The argument will resolve a long-running dispute between the two states under the 1950 Yellowstone River Compact. The issue before the nation’s highest court is whether Wyoming irrigators with pre-1950 rights can change their irrigation methods and, by doing so, decrease the amount of water that is available for uses in Montana that predate the Compact. Montana’s position is that the Compact obligates Wyoming to deliver a certain quantity of water under specified water supply conditions, and that quantity cannot be reduced by individual water users in Wyoming who change their irrigation practices.

The Supreme Court earlier appointed a fact-finder, known as a “Special Master,” to consider Wyoming’s motion to dismiss Montana’s Complaint and to conduct further hearings as needed. On February 10, 2010, the Special Master denied Wyoming’s motion to dismiss with respect to the majority of Montana’s claim. But, the Special Master recommended that the dismissal motion be granted in relation to Montana’s complaint that certain Wyoming water users with early rights were taking water that rightfully belonged to Montana. Montana argued they were doing this by adopting new irrigation techniques that decreased the amount of leftover water that flowed into our state.

In July, Montana filed an exception and brief (PDF) to the Special Master’s ruling, insofar as it limits Montana’s ability to enforce the Compact under certain circumstances. The Court today set the date to hear arguments on this exception.

“Although Wyoming has historically disputed its obligations under the Compact, court officials have generally sided with Montana,” Bullock said. “On this one remaining issue, we believe that Wyoming — in violation of the Compact — is taking water from Montana users who have long-standing rights. We are pleased that the Supreme Court has agreed to hear arguments and we look forward to making our case in January.”

The Yellowstone River Compact protects pre-1950 water uses in Montana from later uses in Wyoming. In times of water shortage, this means that Wyoming must curtail water uses that began after the Compact was ratified whenever holders of pre-1950 water rights in Montana are not receiving sufficient water to satisfy their uses.

In his February 2010 First Interim Report of the Special Master (PDF), Special Master Barton Thompson, a professor at the Stanford University Law School, declared that the Yellowstone River Compact generally protects pre-1950 water users in Montana from uses in Wyoming that began after the Compact was ratified.

The Special Master’s opinion also said that:

* Montana may sue Wyoming to enforce those water rights, and
* Montana was correct in claiming that groundwater pumping — primarily associated with coalbed methane production in the Tongue and Powder River basins — may violate the Compact to the extent it is hydrologically interconnected to the surface channels of the Yellowstone River and its tributaries.

The case began in January 2007, when the Montana Department of Justice sued the State of Wyoming before the U.S. Supreme Court in an effort to protect the water rights allocated to Montana under the Yellowstone River Compact. Montana, Wyoming and North Dakota entered into the compact in December 1950, each state’s legislature ratified it and the U.S. Congress consented to the compact in 1951.

A Montana legal case against the state of Wyoming over its draws on the Tongue and Powder rivers (tributaries of the Yellowstone) may have been resolved, by special master decision, for Montana.

The water involved may be covered by the 1950 Yellowstone compact between the states. Montana said it was; Wyoming said it wasn’t.

Master Barton Thompson of Stanford University decided on June 2 that Montana was right, the water was covered. [see KPAX-TV, June 3]

Attorney General Mike McGrath said Friday that the state has filed its reply to Wyoming in the ongoing case in the United States Supreme Court.

It is the latest step in a case that began when Montana sued Wyoming in February 2007 in an effort to enforce the provisions of the Yellowstone River Compact. Montana, Wyoming and North Dakota entered into the compact in December 1950, and the states’ legislatures ratified it. The U.S. Congress consented to the compact in October 1951.
The original complaint asked the court to order Wyoming to deliver more water in the Tongue and Powder Rivers according to the compact and award the State of Montana damages, costs and other relief.

Wyoming filed a motion to dismiss in April and it now has the opportunity to review and respond to the brief Montana filed Friday.

The United States Supreme Court has original jurisdiction over cases and controversies between the states.

Contact:  Lynn Solomon, (406) 444-0582 or Judy Beck, (406) 444-5774 May 9 Montana Attorney General Mike McGrath

“We’re glad the U.S. Supreme Court has agreed to hear our case,” said Governor Brian Schweitzer. “Water is always one of our most valuable resources, especially in Eastern Montana. Wyoming has been shortchanging us on water for decades. Now I look forward to a fair hearing.”
In the 2007 legislative session, Governor Schweitzer requested and the legislature approved $3 million for litigation of the provisions of the Yellowstone River Compact.
Montana sued Wyoming in an effort to enforce the provisions of the compact last year. Montana, Wyoming and North Dakota entered into the compact in December 1950, and the states’ legislatures ratified it. The U.S. Congress consented to the compact in October 1951.
The complaint asked the court to order Wyoming to deliver more water in the Tongue and Powder Rivers according to the compact and award the State of Montana damages, costs and other relief.
Source: Montana Governor Brian Schweitzer, February 19. Contact:?Sarah Elliott?406-444-9725