Supreme Court allows Montana lawsuit against Wyoming to proceed
U.S. Water News Online
BILLINGS, Mont. — The U.S. Supreme Court has said Montana can continue with a lawsuit that charges Wyoming has been using too much water from a pair of rivers that flow between the states.
Montana argues Wyoming's agriculture and energy industries are depleting the Tongue and Powder rivers at the expense of downstream residents in Montana. In a complaint filed last year, Montana asked the court to order Wyoming to leave more water in the rivers and award damages and other relief. It did not specify amounts.
Wyoming officials dispute the charge, saying both states are suffering due to a prolonged drought.
Reed Benson, a water law specialist at the University of Wyoming, said the Supreme Court's acceptance of the case marks a victory for Montana — but only a small one.
"This is an important step in favor of Montana, but it is really very preliminary," Benson said. "Montana still has a pretty high hill to climb as the complaining state."
The order also allowed Wyoming 45 days to file a motion to dismiss the lawsuit.
That means the case could be decided more quickly than previously expected, possibly without the need for a court-appointed "special master" — essentially a hearing officer — to oversee proceedings.
Both sides welcomed the chance to make their case directly to the court.
They said that could resolve the basic legal argument of whether Montana is entitled to the water as it claims. Then a special master still could be brought in if needed to decide whether Montana is getting that water.
"The court will decide whose interpretation is right before we go into a factual dispute," said Montana Attorney General Mike McGrath. "It will allow a more rapid and potentially less expensive resolution."
Wyoming Attorney General Bruce Salzburg said it made sense to have the court settle at least some of the legal issues involved.
"We don't want the special master to try the case on issues raised by the Montana complaint if some of them are not legally viable," he said.
At the heart of the disagreement are the states' different interpretations of the Yellowstone River Compact. The 1950 agreement spelled out how states were to share water from the Tongue, Powder and other rivers within the Yellowstone River basin.
Wyoming officials say they are adhering to the compact and that the drought has meant less water for both states.
But Montana says Wyoming is storing more water in reservoirs than the compact permits and allowing excessive pumping of groundwater reserves that feed into the two rivers.
Those "groundwater" reserves are tapped by some Wyoming farmers to irrigate their fields. Energy companies discharge large volumes of groundwater during production of coal-bed methane, a type of natural gas prevalent in northern Wyoming.
In 2004 and again in 2006, Montana called on Wyoming to increase flows in the two rivers but was denied.
Wyoming said in response that Montana had failed to show it was harmed by Wyoming's water use.
The Yellowstone compact did not specifically address groundwater. Wyoming officials have argued it applies only to surface water.
The Supreme Court had been urged to accept Montana's lawsuit by U.S. Solicitor General Paul Clement, who filed a brief in the case last month. Disputes between states often are decided by the Supreme Court.
McGrath said he expected the court to issue a decision in the case by July. Benson, the water law expert, said it would be "remarkable" if the case were resolved that quickly.
North Dakota, also a member of the Yellowstone compact, is named as a second defendant in the suit. But Montana officials have said they have no issues with their eastern neighbor.
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