Argument preview: Upstream rights, downstream woes
on Jan 8, 2011 at 8:22 pm
The Supreme Court will hear one hour of oral argument at 11 a.m. Monday in the case of Montana v. Wyoming (137 Original), a dispute over how to read the terms of an interstate agreement on uses of water drawn from a river system shared by neighboring states. Arguing for the state of Montana will be its Attorney General, Steve Bullock of Helena. Arguing for Wyoming will be a senior assistant state attorney general, Peter Kenneth Michael, of Cheyenne. The U.S. government, as an amicus, supports Wyoming; arguing for the U.S. will be William M. Jay, an assistant to the Solicitor General.
Background
In the lore of the “wild West,” it was commonplace to talk about “water wars”– bitter feuds, often between rifle-brandishing cowboys, over who had the right to a precious resource that always seemed to be in short supply on the sun-baked Great Plains.  In the modern era, “water wars” do continue, but now the combatants are states competing over a given waterway’s supply, and the weapon of choice is the legal brief.
With some frequency, those controversies reach the Supreme Court because the Constitution gives the Court the power to act as a trial court for lawsuits between states — deciding such a lawsuit without any prior proceedings in a lower court. It does so through what is called its “Original jurisdiction.”
A year ago, in one such dispute that happened to be between Eastern states, Chief Justice John G. Roberts, Jr., wrote:  “Our Original jurisdiction over actions between states is concerned with disputes so serious that they would be grounds for war if the states were truly sovereign.  A dispute between states over rights to water fits that bill.”
For more than 60 years, the neighboring states of Montana and Wyoming have attempted to keep the peace in what would otherwise be a water war over the Yellowstone River.  They have done so  through an interstate agreement — formally, a “compact” — that has governed uses of the waters of the Yellowstone and four of its tributaries.
The entire basin that the Yellowstone River supplies — an area of more than 70,000 square miles — lies partly in Wyoming, partly in Montana, and partly in North Dakota. The main stem of the river rises in Yellowstone National Park in Wyoming, flows north into Montana, crosses that state and then, just after crossing into North Dakota, spills into the Missouri River.   The case before the Supreme Court involves two tributaries of the Yellowstone — the Tongue and Powder Rivers (out West, the Powder is pronounced “Pooder”).
After some 20 years of negotiations between the three states, they agreed in 1950 to the Yellowstone River Compact, which went into effect in 1951 after Congress gave its approval (as the Constitution requires). Any interpretation of the Compact’s terms in the current lawsuit will affect water rights not only to the flows in the Tongue and Powder Rivers, but also in two other Yellowstone tributaries, the Bighorn River and the Clarks Fork Yellowstone River, although there is no current dispute over those two streams.
The Compact’s Article V provides for dividing the waters of the Tongue and Powder Rivers between Montana and Wyoming. It is keyed to how those streams were used — that is, keyed to what are technically called “beneficial” uses — as of Jan. 1, 1950.  Under traditional water law that applies in the arid and semi-arid Western states, the first person who makes use of water for a “beneficial” use has the priority right to continue using it for that purpose, but loses it if the use is discontinued. The “beneficial” use at issue in this lawsuit is for irrigation — that is, watering farm and ranch fields to make the crops grow.
This case illustrates the workings of a simple fact of nature: as a river flows downstream, those users situated on the higher reaches with rights can withdraw water and, if not limited in quantities, can deplete the flow so that less water flows downstream to users in the lower reaches. With the Yellowstone rising initially in Wyoming, its water users are in a position to influence how much water goes downstream into Montana. (While North Dakota is a party to the 1950 Compact, it is only nominally involved in the current dispute, and is actually not taking any part in it.)
The Current Dispute — The Procedure
As noted, the dispute between Montana and Wyoming — taken to the Court by Montana — is an Original lawsuit. The Court has an entirely different procedure for such cases than it does from those that are brought to it after lower courts have ruled.
A state asks the Supreme Court’s permission to file its lawsuit directly before the Justices. Its claim is contained it what is called a “bill of complaint,” and a state files a motion seeking to file it. The bill of complaint provides background on the dispute, both factual and legal, raises specific legal or constitutional questions, and usually makes an argument why the state’s complaint was not pursued in lower courts first.
The other state is given a chance to respond to the motion to file. If the Court grants the motion (and it has discretion whether to grant or deny), the case is then entered on the Court’s docket for full review. Original cases are numbered serially, when they are filed, rather than by the Term in which they were filed; they usually remain on the docket for several years.  While the Court essentially is acting as a trial court, it usually does not conduct a trial-like procedure itself. Customarily, it appoints a “Special Master” — a seasoned lawyer, or a professor — to decide what procedure to follow. Ultimately, the Special Master files one or more reports with the Court, making recommendations; no Special Master makes any final merits decisions in an Original case.
Once a Master’s report is in, both sides are given a chance to file “exceptions.”  Essentially, these function as arguments on the merits, made in formal briefs, arguing why the Master’s recommendation should be accepted or rejected.  Once the exceptions are filed, the Court customarily schedules an oral argument. Such an argument usually is allotted one hour. The Court then proceeds to decide the issues itself, and issues a ruling in the customary fashion. A formal “decree” spells out the Court’s ruling in detail.
At this stage in Montana v. Wyoming, the Court is dealing with an “interim report” from the Special Master, Stanford law professor Barton H. Thompson, Jr.
The Current Dispute — the Merits
Four years ago, on Jan. 31, 2007, Montana filed its “motion for leave to file a bill of complaint” against Wyoming and North Dakota (although its grievance is actually only against Wyoming). As the case has unfolded since then, it currently is about use of the waters of the Tongue and Powder Rivers for irrigation of crop lands. A change in irrigation technology is behind the dispute as it now stands.
When the Compact was adopted in 1950, the main method of irrigation was simply to flood the fields. Relying on gravity flow across a field, that method results in only 65 percent of the water that has been drawn from a river to be consumed; the remaining 35 percent flows back into the river and moves downstream.  During  dry months, the return flow is about the only water available to downstream users.
More modern techniques, however, such as using a sprinkler, are more efficient in their use of water. The sprinkling allows the crops to consume more of the water, with the result that less returns to the river; the return flow drops from about 35 percent to 10 percent or less. Thus, users in Wyoming who draw out the same amount of water as they were on Jan. 1, 1950, use up more of it, leaving less to flow downstream to users in Montana.
That, Montana complained in its Original lawsuit, was exactly what has been happening. As a result, it argued, its users had less water than they had available at the start of 1950, especially during dry times of the year. The Compact, Montana argued, turns the use of the more efficient irrigation techniques into a violation of its rights under Article V. Modern irrigation methods were not a use contemplated by the agreement, it said. Thus, Montana’s core legal question is: are more efficient irrigation methods outside the scope of Article V?
What Montana’s legal argument actually relies upon is a simple underlying proposition: the Compact is a water allocation agreement, and Montana is guaranteed that, when the Tongue and Powder Rivers flow into Montana, they must contain enough water to satisfy the 1950-level needs of its water users.  It is up to Wyoming, Montana contended, to find ways to deliver that minimum amount of water. (Montana has other complaints against Wyoming about water uses, but they are not before the Court at this time; they remain before Special Master Thompson.)
Wyoming responded, arguing that the Compact does not guarantee any specific volume of water flowing down to Montana users. The users in Wyoming, relying upon their 1950 water rights, are only drawing out the same volume of water, and are just making better use of it. Under the theory of rights acquired by “appropriation” (“first in time, first in right”), Wyoming said, the users are allowed to continue the beneficial uses on the same land as up to 1950 — in this case, irrigation.  Those uses, according to Wyoming, is what Article V protects.
The Court on May 14, 2007, asked the U.S. Solicitor General to offer the federal government’s views. In response, the SG urged the Court to allow the case to go forward. The Court on Feb. 19, 2008, agreed to allow Montana to sue, and gave Wyoming time to file a motion to dismiss. Wyoming did so on April 4 of that year. Soon afterward, the U.S. government urged the Court not to dismiss the case, partially siding with Montana.  The following October, the Court named Thompson as Special Master, and sent the motion to dismiss to him for review.
On Feb. 9 last year, Thompson filed his “interim report.” Besides arguing that the case should not be dismissed, the Special Master agreed with Montana that the Compact did mean that the 1950 water rights of Montana users were protected from interference — but only by Wyoming users who began drawing water from the two tributaries after 1950.
On Montana’s complaint that the increased efficiencies of the new irrigation methods were to blame for cutting the water flows into Montana below 1950 levels, Thompson said that claim could go forward only if the Compact expressly excluded those gains from protection as a beneficial use. The Compact, Thompson found, did not allocate specific amounts of water to be delivered to Montana at the state line, but rather protects the uses that Wyoming farmers and ranchers were using on the same land that they had been irrigating under their appropriation rights. Wyoming, he concluded, should be allowed to lets its pre-1950 water rights holders retain the benefit of increased irrigation efficiencies, with the same amount of water being withdrawn, though less flowed back into the rivers and downstream.
Finally, for present purposes, Thompson suggested that, if Montana can remedy shortages its users were experiencing from those increased efficiencies upstream, and could do so by reallocating water rights within Montana under Montana law, that would be a proper remedy.
Last May 13, Montana filed two exceptions to the Master’s interim report. First, it argued that Thompson was wrong in concluding that Montana had no claim under Article V that Wyoming users’ increased efficiency in irrigation methods resulted in depletions downstream. “Any interpretation [of the Compact] that allows an upstream state to interfere by any means with pre-1950 rights in a downstream state must be rejected,” Montana argued.
Wyoming filed no exceptions to the interim report, agreeing with Thompson’s suggestion that Article V did not set any limit on Wyoming’s consumption from beneficial uses allowed under Wyoming water law. The Compact’s use of the phrase “beneficial uses,” it said, merely describes the kinds of water use that the Compact protects for those with 1950 water rights under state law.  Its users, it contended, may increase the consumption of water — drawn at the same levels — by adopting sprinkler irrigation methods.
Last June 22, Acting Solicitor General Neal K. Katyal filed the federal government’s amicus brief, urging the Court to deny Wyoming’s motion to dismiss and urging the Court to reject Montana’s objections, and return the case to the Special Master for further review of Montana’s other legal theories.
Katyal argued that the Compact “simply does not follow the model of other compacts that allocate specific amounts or percentages of water to each of the compacting states. By choosing the existing appropriation rights, rather than a fixed quaniity or percentage, as the basis for [Compact] protections, the Compact contemplates that any claim of injury that Montana can make under Article V must be one based on injury to its pre-1950 water users.” Katyal agreed with Thompson that any remedy for a shortage for a pre-1950 user should be first addressed by reallocations under Montana’s own water law.
Lsst Oct. 12, the Court took three steps to advance the case. It said it would hold oral argument on Thompson’s report, but only on the issue of the meaning of Article V and the irrigation efficiencies question under it. It sent back to the Special Master Montana’s exception on the proper remedy for any shortages for its 1950 users. And it denied Wyoming’s motion to dismiss.
That order by the Court noted that Justice Elena Kagan, newly on the bench, had not taken any part in the action.  The Court later agreed to allow the Solicitor General’s staff to take part in the oral argument, as an amicus supporting Wyoming. (Following the Court’s usual procedure in Original cases, no further briefs were filed beyond those dealing with the exceptions to Thompson’s report.)
Analysis
The case, on the surface, appears to be primarily a test of what the Yellowstone River Compact’s Article V means. The Special Master, the two parties, and the Justice Department have spent considerable energy on the history and substance of the Compact, and that provision in particular. It does appear to be somewhat unusual in comparison to other interstate compacts allocating water rights, so it may well be that the Court’s final decision in this case will have meaning only on the relationship between Montana and Wyoming dealing with the waters of the Yellowstone.
Conceivably, what the Court says about the influence of new technology on the volume of water use, and its effect on downstream flows, could be of significance beyond this particular lawsuit. The Court probably would not want to make legal judgments that would inhibit increased efficiency in water consumption, particularly for the states of the arid West.
Beyond the Compact itself, Montana has made some effort to introduce into the case a constitutional dimension. The suing state has stressed, in its brief, that a Compact is an agreement between sovereign states, and thus should be interpreted in ways that safeguard the sovereign interests of each of the states who joined it, rather than make it an extension, essentially, of one state’s own laws.
Montana has argued that keying the meaning to Article V to water rights of Wyoming users as defined under Wyoming water law fails to address the larger significance of Compact commitments by states to respect each others’ vital interests in valuable natural resources.
In this regard, it is worth noting that, in last January’s ruling in the Eastern states’ water rights case (South Carolina v. North Carolina, 138 Original), four Justices of the Court (in dissent, to be sure) made much of the importance of state sovereignty in understanding interstate relations that are under review in Original cases. While those remarks came in the context of discussing whether private parties should be allowed to intervene as full parties in Original cases (something the Court allowed in that case, for the first time in history), the comments do suggest that at least some members of the Court view Original cases on a grander constitutional stage than other lawsuits.
Montana obviously intended in pushing the sovereignty argument to get the Justices to see the case as more than a dispute over a specific provision in one interstate agreement, perhaps to Montana’s benefit.
After oral argument Monday, the Court will begin deliberating on a decision. There is no timetable for the final decision.
