Opinion analysis: A drop of new water law
on May 2, 2011 at 12:52 pm
Analysis
Breaking a bit of new ground on water law for the Western states, the Supreme Court on Monday ruled — somewhat hesitantly — that upstream states on a river system in the West can send less of the water they use back downstream for other states, if they do so by more efficient methods of using what they take out of the stream. The decision focused on the Yellowstone River Compact that covers three Great Plains states’ use of the waters of the Yellowstone and two tributaries, but the key part of the ruling was a more general interpretation of water law doctrine, and added somewhat to it. In an amusing sidelight in the case, Justice Antonin Scalia gave Wyomingites a new name: “Wyomans.”
The decision in Montana v. Wyoming (137 Original) upheld a proposed ruling by a Special Master the Court had named to filter the new dispute in this long-running legal water war between states that sometimes have to live with drought conditions, reducing their water supplies. The case is not over yet, but Monday’s ruling settled a key issue that had lately arisen. Justice Clarence Thomas wrote for a 7-1 Court, with Justice Scalia in dissent alone, and Justice Elena Kagan taking no part. (The river compact at issue, dating to 1951, also includes the state of North Dakota, but it was not involved in this latest twist in the case.)
The law that governs water rights is different in Western states from that in their Eastern neighbors. Out West (which includes the Great Plains states), the first one to start using the waters of a river gets a right to it; that is the so-called doctrine of appropriation, or, more popularly, “first in time, first in right”; in Eastern states, by contrast, the one who occupies the bank of the river gets the right to use what is in front of the property; that is the so-called doctrine of riparian rights.
Under the appropriation doctrine, it has long been true that downstream states do have a right to the water that flows into them from upstream, but that is a right junior to the upstream states’ rights to “appropriate” the water first.  The upstream rights, though, are qualified by a legal concept: the law of no injury. Downstream states can prevent upstream users from taking more water than they previously had, if doing so will cause injury — that is, less water flowing into — the downstream states.
What has not been true (and this is what Monday’s decision resolved for the first time in the Court’s history of dealing with many river cases over the decades) is what is called “the law of return flows.”  If that were a binding part of water law, it would mean that the upstream state, after making use of the waters it draws, was obliged to return the same amount of water to the stream, to flow down to its neighboring states.  That is a concept, the Court said, that remains unclear, and, in fact, Justice Thomas said no cases could be found on it in any Western state court. (State courts are consulted on such matters, of course, because water law is basically state law. When the Supreme Court interprets water law, it is fundamentally interpreting state law — as it did on Monday, looking closely at what Montana and Wyoming courts have said about appropriation rights.)
So, with what appeared to be some apology for stepping too deeply into this murky issue, and noting that it was moving with “caution,” the Court found no basis for a “law of return flows,” as downstream state Montana had claimed.  Montana had argued that, under the 1951 Compact, it had a right to have Wyoming put back into the Yellowstone, Powder and Tongue Rivers, the same amount of water it had drawn out in 1950 and then used to irrigate its farm and ranch lands.
Irrigation is one of those water uses that the Yellowstone Compact allows. And, when farmers and ranchers used to draw out the water and simply pour it out in a flood on the land, a lot of it didn’t soak in, and flowed or seeped back into the river system, to go on downstream. But, Montana argued, Wyoming’s agricultural producers were using sprinklers now, and that has the effect of making the water soak in more. The result: less is left over to flow down to Montana. While irrigation is a “benefical use” under the Compact, Montana contended, it is not a “beneficial use” to use more efficient irrigation methods that reduces the return flows.
Rejecting that argument, Justice Thomas’ opinion said that “beneficial use” does, indeed, embrace more efficient irrigation methods. What the Compact’s reference to “beneficial use” means, in applying that phrase to irrigation, is that Wyoming can take the same amount of water out of the Yellowstone system as it did in 1950, so long as it is sprinkling that amount of water on the same amount of land as before that year, the Court concluded.
“Although the no-injury rule prevents [upstream] appropriators from making certain water-rights changes that would harm other [junior] appropriators, a change in irrigation methods does not appear to run afoul of that rule in Montana and Wyoming,” Thomas wrote. “Improvements to irrigation systems seem to be the sort of changes that fall outside the no-injury rule as it exists in Montana and Wyoming.”
The opinion also sought to reinforce its conclusion about no law of return flows by examining what is called, in water law, the “doctrine of recapture.” That is the concept that, if one has a right to draw a certain amount of water out of a river, it can make its first use of that water and, if that process leaves some leftover, that user can also recapture and use that surplus rather than sending it on downstream. This, Thomas wrote, buttresses the idea that return flows are not guaranteed under the no-injury rule.
Aside from its more general interpretation of “beneficial uses” in water law, the Court’s opinion also relied upon its understanding of the text of the Yellowstone Compact in particular — the less significant part of the ruling, for everyone other than Montana and Wyoming.
The opinion was joined by Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, and Sonia Sotomayor. As indicated earlier, Justice Kagan was recused; she had been involved in the case earlier, when she was U.S. Solicitor General.
Justice Scalia, in his dissent (aside from rechristening Wyomingites as “Wyomans” because “the people of Wyoming deserve better”), spent considerable effort chastising Justice Thomas’ opinion for being a “none-too-confident” interpretation of law, and for allegedly misreading the simple text of the Yellowstone River Compact. To Scalia, the plain text of the Compact barred an upstream state like Wyoming from “depleting” any more of the river water than it had before 1950.  The Court majority, the dissenter said, was wrong in focusing on the issue of diversion of water (the amount taken out) instead of the amount depleted (the amount used up).
In a typically Scalia-esque volley, the dissenting opinion said at one point: “I find it quite extraordinary that the Court should expend such heroic efforts (imagine how many cases had to be read!) answering a state-law question that no court of any Western State has ever answered — a question that would cross a Rabbi’s eyes — when the text in front of us provides the clear answer insofar as this Compact is concerned: ‘depleted.’ “
