Water Wars: The Yellowstone River System Drew L. Kershen Earl Sneed Centennial Prof. Emer. University of Oklahoma, College of Law 2014 UCOWR-NIWR-CUAHSI Conference Tufts University – June 18-20, 2014

History Procedural Posture Yellowstone River Compact, 1950 – Montana, North Dakota, Wyoming – Negotiations from 1932 until 1950 The 1950 Agreement is fourth try Montana v. Wyoming – Original jurisdiction – January 2007 filed – Barton H. Thompson, Special Master 1 st Interim Report of Special Master on February 20, 2010 – 131 S. Ct. 1765, 179 L.Ed.2d 799 (U.S. 2011) – Hearings Oct & Dec ‘13; Post-Hearing Briefs Mar & Apr ‘14 – Awaiting Special Master’s Judgment & Opinion – New Motion to Dismiss filed by Wyoming at Supreme Ct.

Montana’s Claims # 1: Increased consumption of water on existing acres of irrigated land in Wyoming; # 2: New groundwater withdrawals, particularly associated with coal-bed methane production, in Wyoming; # 3: Construction and Use of new and expanded storage facilities on Wyoming tributaries # 4: Irrigation of new acres in Wyoming

Special Master Interim Report Structure of the Compact – Three categories of water uses; Part V(A) -- Pre-1950 water uses in both states Part V(B) – Unused and unappropriated waters of the interstate tributaries – Supplemental water rights for pre-1950 appropriations; – Fixed percentage of the remainder of unused and unappropriated water of interstate tributaries to each state for all post January 1, 1950 new water uses – Compact to be governed by the doctrine of prior appropriation

Special Master Rulings on Structure of the Compact Law of appropriation – Compact does not create an interstate doctrine of prior appropriation nor a unified administration of the waters of the River – The general and basic rules from all states that have adopted the doctrine of prior appropriation Montana and Wyoming law given preference, if the laws of these two states are in agreement Both states in agreement that prior appropriation applies to stream water, and groundwater

Special Master Rulings on Structure of the Compact Part V(A) pre-1950 water uses – senior to all other water uses post January 1, 1950 – No unified priority list for pre-1950 Montana and Wyoming water users – Seniority within each state to be applied within each state Part V(B) post January 1, 1950 uses are subject to call of the river, if pre-1950 uses cannot be satisfied – Seniority within each state first to protect the pre uses – Call of the river across state lines only if pre-1950 uses cannot be satisfied by state within borders senior protection

Special Master Rulings on Montana’s Claim # 1 # 1: Increased consumption of water on existing acres of irrigated land in Wyoming – Wyoming irrigators have changed from ditch irrigation to sprinkler irrigation – much less runoff into the streams – Changes in method of diversion – concept of “no injury” rule (point of diversion, purpose of use, and place of use) – Changes in water efficiency by water user – Recapture and reuse of runoff Holding: no violation by Wyoming or its irrigators

Special Master Rulings on Montana Claim # 2 # 2: New groundwater withdrawals, particularly associated with coal-bed methane production, in Wyoming; – Compact only explicit about stream water The hydrological connection – springs and swamps – Conjunctive Management of stream and groundwater – Subject to proof of interconnection and “futile call” doctrine Holding:Groundwater withdrawals in Wyoming in some circumstances are violation

Special Master Ruling on Montana’s Claim # 3 # 3: Construction and Use of new and expanded storage facilities on Wyoming tributaries – Store in priority and use outside of priority – Calculations are on an annual basis – Factual issues as to when Wyoming stored the water in Wyoming reservoirs Holding: New and expanded storage facilities can violated the Compact

Special Master Rulings on Montana’s Claim # 4 # 4: Irrigation of new acres in Wyoming – Agriculture is largest user in Wyoming and Montana in both pre-1950 and post-1950 water uses – Prior appropriations not frozen as of January 1, 1950 – new appropriations allowed Holding: Post-1950 irrigation in Wyoming can violate the Compact, subject to the rulings on the Structure of the Compact

Supreme Court 2011 Opinion Supreme Court (Justice Thomas) decided appeals of Special Master Holdings only as to: – Structure of the Compact; Montana’s Claim # 1 – All other issues remanded – Compact does not guarantee Montana a specific amount of water at its border % of divertible flow measured on an annual basis Holding:Affirmed the rulings of Special Master

Special Master Rulings on Summary Judgment Motions Montana obligation to make a timely call of the river – Ruling that Montana did not make a timely call except for years 2001, 2003, 2004 and 2006 Montana must have beneficial use for the water – Ruling that Montana cannot simply demand water from Wyoming when Montana will not make a beneficial use – Wyoming junior appropriators can use if Montana senior appropriators do not need for beneficial use of their water rights.

Wyoming Motion to Dismiss Case Wyoming threatening to file Motion to Dismiss in Supreme Court – In light of rulings of Special Master, and various concessions by Montana Montana has abandoned all claims on interstate tributaries other than the Tongue River Montana’s maximum claim is 9,723 acre-feet of water – Less than approximately 16 sections of farm land – De minimis – Awaiting Judgment and Opinion of Special Master