Tuesday, May 3, 2011
May 2: In the U.S. Supreme Court, Case No. 137, Original. As explained in the High Court's summary, the case arises out of a dispute between Montana and Wyoming over the Yellowstone River Compact [See WIMS 1/12/11]. Montana alleges that Wyoming has breached Article V(A) of the Compact by allowing its pre-1950 water appropriators to increase their net water consumption by improving the efficiency of their irrigation systems. The new systems, Montana alleges, employ sprinklers that reduce the amount of wastewater returned to the river, thus depriving Montana's downstream pre-1950 appropriators of water to which they are entitled. A Special Master filed a First Interim Report determining, as relevant here, that Montana's allegation fails to state a claim because more efficient irrigation systems are permissible under the Compact so long as the conserved water is used to irrigate the same acreage watered in 1950. The Supreme Court agreed with the Special Master and overruled Montana's exception to that conclusion.
Justice Thomas delivered the opinion in which Justices Roberts Kennedy, Ginsburg, Breyer, Alito and Sotomayor all joined. Justice Scalia filed a dissenting opinion and Justice Kagan took no part in the consideration or decision of the case. The majority concluded, "We conclude that the plain terms of the Compact protect ordinary '[a]ppropriative rights to the beneficial uses of [water] . . . existing in each signatory State as of January 1, 1950.' Art. V(A), ibid. And the best evidence we have shows that the doctrine of appropriation in Wyoming and Montana allows appropriators to improve the efficiency of their irrigation systems, even to the detriment of downstream appropriators. Montana's allegation that Wyoming has breached Article V(A) of the Compact by allowing its pre-1950 water users to increase their irrigation efficiency thus fails to state a claim. Accordingly, Montana's first exception to the Special Master's First Interim Report is overruled.
As indicated in the docket for the case, the questions presented by Montana's exception are: 1. Whether the Special Master correctly concluded that Montana's increased-efficiency allegation does not state a claim for breach of the Compact; and, 2. Whether the Special Master correctly concluded that, to show that Wyoming has breached the Compact and caused Montana injury, Montana must show that its water users lack an intrastate remedy under Montana law.
In his solo dissent Justice Scalia said, "Thanks to improved irrigation techniques, Wyoming's farmers and cattlemen appear to consume more of the water they divert from the Yellowstone River and its tributaries today than they did 60 years agothat is to say, less of the diverted water ultimately finds its way back into the Yellowstone. The Court interprets the Yellowstone River Compact (Compact), see Act of Oct. 30,1951, ch. 629, 65 Stat. 663, to grant those Wyomans* the right to increase their consumption so long as they do not increase the volume of water they diverted beyond pre1950 levels. Thus, it holds, Montana cannot complain that the increased consumption interferes with its residents' pre-1950 appropriative water rights. I disagree because the Court's analysis substitutes its none-too-confident reading of the common law, see ante, at 78, and n. 5, for the Compact's definition of 'beneficial use.'" *Justice Scalia noted regarding his terminology "Wyomans" that, "The dictionary-approved term is "Wyomingite," which is also the name of a type of lava, see Webster's New International Dictionary 2961 (2d ed. 1957). I believe the people of Wyoming deserve better."
Access the complete opinion and dissent (click here). Access links to the Special Master's report, briefs and the argument transcript (click here). Access the Supreme Court docket (click here). [*Water]
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