Argument recap: The murky depths of water law
on Jan 10, 2011 at 5:39 pm
For most of the hour set aside on Monday to hear a major dispute over water, between two thirsty states, the Supreme Court waded to and fro among the phrases of a formal compact that supposedly defines each state’s rights — but, apparently, not carefully enough drafted to be clear.  What the Court came to appreciate, before the hour was over, though, was that in the western states, life — as to water rights, at least — is not fair.  Justice Stephen G. Breyer summed it up best: “There’s no way to read this compact so it’s share-and-share alike….There’s no fair way to decide this case.”
In Montana v. Wyoming (137 Original), the Court is called upon to interpret a 60-year-old agreement that is quite unlike most of the river compacts that reach the Justices. Usually, the states that dip into the waters of the same river divvy it up, saying with some precision what each state’s share is, and setting up a system to enforce the allotments. Montana and Wyoming didn’t do that. They opted for a system of continuing “uses,” with a bottom line that both states, in the end, would have enough water to do what they were doing with it in 1950 — if the overall water supply stayed the same — but with no specific allotments.
One problem with that approach is, of course, that in dry years, there is not enough to supply every one’s customary uses. But that system has a further problem — and this is what makes fairness so elusive. In the background is the decades-old doctrine, peculiar to the western states, that the first one to dip water out of the river has the priority right to it. That is what one lawyer on Monday called the theory of “highology” — the higher up the stream you are, the more right to it you have.
Montana, which is located downstream on the rivers in dispute, wants to alleviate its situation by insisting that Wyoming not consume so much of the water that its farmers use to irrigate their fields that too little is left to run down to Montana’s users.  Consumption is restricted, even if use is not, according to the way Montana reads the Yellowstone River Compact. But that interpretation met considerable skepticism from most of the Justices — indeed, all but Justice Antonin Scalia. The other Justices seemed to have read the compact to mean that it was not about consumption at all, but rather was about the right to withdraw water, without regard to what, after it is used, is left over to float on down to Montana.
Justice Anthony M. Kennedy — the only westerner on the Court — appeared to be leaning toward that conclusion, suggesting at several points that the compact was mostly about guaranteeing what was taken out, not what was to flow back in after use.
Justice Breyer also seemed to wound Montana’s case by suggesting that no one knows now, and did not know in 1950, how to calculate the amount of water that flowed back into the shared river after being partially used.  If that could not be known, the Justice wondered, how could Montana be assured that Wyoming users would return enough to supply the needs of downstream — Montana — users. How could the compact be read, Breyer asked, “to require landowners to put back amounts into the river that they didn’t even know what they were?”
As the doctrine of “first in time, first in right” became ever clearer as the argument moved along, the Justices came more fully to appreciate why Montana had the harder argument to make. Chief Justice John G. Roberts, Jr., told Montana’s attorney general, Steve Bullock, that the farmers in Wyoming were using the water to help their crops grow. They have a right to do so, the Chief said, just as they did in 1950. “They just use up more of it once they’ve taken it out,” he went on, referring to improved irrigation techniques that consume more water, returning less to the river.
Later, putting the same point more bluntly, Roberts told Bullock that Wyoming’s irrigating farmers were “still taking out the same amount of water…They’re using it to irrigate. And if they get better at it so they use more, well, that’s just too bad for you.” And even later, in discussing the issue with Wyoming’s lawyer, Peter Kenneth Michael, the Chief would say: “that was the way appropriation law works in the West, I mean, the person who gets it, gets it….That’s the difference between eastern water law and western water law. In the East, you try to allocate everything fairly so everyone is treated fairly, and I thought in the West, for reasons of efficiency, it’s first come first serve.”
Michael, of course, agreed with that.
Justice Scalia, as Montana’s principal defender in this argument, suggested that it was “implausible” that Montana would have signed up for a deal in which they were saying, in effect, “we don’t know how much water we’re going to get, it depends, you know, upon how much stuff was flowing back before, but we’re not guaranteed that that will be flowing back again.” Montana, he suggested, wanted assurances that it would want a dependable supply of water for its users, and that’s what it expected from the compact.
Scalia, who has often described himself as a “textualist,” sought to read a pro-Montana interpretation into the text of the Compact, but managed only to add further murkiness about, for example, whether there was a real difference between “depletion” and “diversion” of water.
And Scalia had his own complaint about a lack of fairness. He told Wyoming’s lawyer that it hardly seemed fair that Montana’s farmers could use new water-using irrigation techniques, while insisting that Wyoming’s farmers could not because they reduced the flow downstream.
The federal government’s lawyer, William M. Jay, an assistant to the U.S. solicitor general, lined up fully on Wyoming’s side. The drafters of the Yellowstone Compact, he said at one point, “consciously rejected the idea that they should come up with some kind of interstate administration system putting the two states’ rights on equal footing.”
While Jay seemed reluctant to fully embrace Justice Breyer’s suggestion that the Yellowstone Compact was not meant to “share and share alike,” he did argue that the states decided in joining the compact that they were not opting for “a middle ground like that.”  To Breyer’s suggestion that there was no “fair” way to read the agreement, the federal lawyer said it was fair to enforce the compact “according to what the states signed up for.”
There is no timetable for the Court to decide the case. (Justice Elena Kagan is not taking part in the case.)
