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Home / Press Release / Bullock to U.S. Supreme Court: Wyoming Doesn’t Deliver on 1950 Water Compact
January 10, 2011

Bullock to U.S. Supreme Court: Wyoming Doesn’t Deliver on 1950 Water Compact

WASHINGTON, D.C. – Attorney General Steve Bullock defended Montana’s water rights in an oral argument before the U.S. Supreme Court Monday morning.

Bullock told the justices the 1950 Yellowstone River Compact guarantees Montana a certain amount of water and Wyoming is not delivering on that agreement, depriving Montana users of water that rightfully belongs to them.

“Farming is an uncertain business in Montana, especially in dry years,” Bullock said. “We all depend on everyone playing by the rules. That’s what this case is about.”

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 argument is only one piece of a 2007 lawsuit Montana filed against its southern neighbor over water in the Tongue and Powder rivers, tributaries of the Yellowstone River which flow north from Wyoming into Montana.

Wyoming had previously attempted to have the case dismissed, but a court-appointed special master rejected most of that state’s clams. The special master did agree with Wyoming on one point: That more efficient irrigation methods in Wyoming are causing less water to re-charge the Tongue and Powder rivers and, thus, Wyoming is delivering less water to Montana. Wyoming had argued it could not be faulted for adopting more efficient irrigation.

Monday’s argument dealt specifically with this point, however, the court’s decision on this matter will not resolve the entire case.

Because the lawsuit involves a dispute between two states, the high court agreed to hear the case directly. It was not appealed from a lower court.

A transcript of the argument will be posted to the U.S. Supreme Court Web site later today. Such transcripts are considered official, but subject to review. A brief history of the case is online.

Water Rights

The attorney general appoints one representative to the nine-member Reserved Water Rights Compact Commission. The commission settles reserved water right claims within the state by negotiating intergovernmental agreements with tribal and federal governments. The commission also includes four members appointed by the governor, two appointed by the president of the Montana Senate and two appointed by the speaker of the Montana House of Representatives.

In some cases, Montana law gives the attorney general authority to take part in proceedings before the Montana Water Court. The attorney general also represents the state before the Water Court in all matters relating to the incorporation of reserved water right compacts – both federal and tribal – into the statewide general adjudication of water rights.

Major Cases

Yellowstone River Compact

In January 2007, the 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.

Montana interprets the compact to protect each state’s water rights that were in actual use at the time of the compact. Wyoming asserts that “pre-1950” rights are excluded.

In 2004 and 2006, Montana unsuccessfully called for Wyoming to provide water apportioned to Montana water users. Each time, Wyoming failed to curtail consumption for the benefit of Montana.

In January 2008, the U.S. Solicitor General filed a brief concluding that the U.S. Supreme Court should grant Montana’s motion to file a bill of complaint in the case.

In February 2010, the Special Master appointed by the U.S. Supreme Court denied Wyoming’s motion to dismiss Montana’s case and confirmed that the Yellowstone River Compact protects water users in Montana from upstream users in Wyoming. In his opinion, First Interim Report of the Special Master (PDF), Special Master Barton Thompson of Stanford, California, 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
  • Montana was correct in claiming that groundwater pumping — primarily associated with coalbed methane production in the Tongue and Powder River basins — must be counted towards each state’s allocation when it affects rivers and springs covered by the Compact

Montana has 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. A decision from the U.S. Supreme Court is expected this term, which runs October 2010 to June 2011.

Related Legal Documents

Montana’s Water Quality Standards for Coal Bed Methane Development

The State of Montana has intervened in several related cases in which a number of oil companies operating in Wyoming are trying to overturn the U.S. Environmental Protection Agency’s (EPA) approval of Montana water quality standards for the Tongue and Powder Rivers and their tributaries, and mandate EPA’s disapproval of Montana’s 2006 nondegradation regulations.

In 2003, the Montana Board of Environmental Review (BER) adopted numeric standards to regulate water quality in the Powder River Basin. The EPA approved those standards, making them enforceable under the federal Clean Water Act. Under EPA regulations, point source discharge permits issued or authorized by Wyoming must assure achievement of downstream water quality standards. If the standards are not met, discharges of tainted water from Wyoming may make the water flowing into the Tongue and Powder Rivers unusable for farmers and ranchers in southeastern Montana.

In April 2006, several oil companies – Pennaco Energy, Inc., Marathon Oil Company and Devon Energy Corporation – filed suit in federal district court in Cheyenne to overturn the EPA’s adoption of the standards, and later also sued the EPA to force it to disapprove the 2006 nondegradation regulations. The state of Wyoming has intervened on the side of the companies.

The Montana Department of Justice is working with the Department of Environmental Quality (DEQ) to defend Montana’s water quality standards and the EPA’s approval process. DEQ has negotiated a tentative settlement with Wyoming, under guidance from the EPA to ensure that Montana’s water quality is protected.

In Montana District Court, the Department of Justice and DEQ successfully defended Montana’s 2003 and 2006 water quality standards for electrical conductivity and sodium absorption ratio from challenges by several energy companies.

In October 2009, District Judge Brimmer vacated the EPA’s approval of Montana’s water quality standards and ordered the EPA to further analyze scientific data supporting the numeric values we had adopted.

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