High Court Says Modern Irrigation Techniques Do Not Violate Water Rights Pact

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on May 2 held that Wyoming farmers and ranchers are not violating a 1950s water pact with Montana by using modern sprinkler irrigation that returns less runoff water to the Yellowstone River system used by Montana's farmers and ranchers (State of Montana v. State of Wyoming and State of North Dakota, 22O137 ORG, U.S. Sup.).

Rights to water in the Powder and Tongue rivers, which flow from Wyoming to Montana, as well as other parts of the Yellowstone River system, are governed by the Yellowstone River Compact (Public Law No. 82-231, 65 Statute 663 [1951]). 

On Jan. 30, 2007, Montana sued Wyoming in the U.S. Supreme Court, alleging that Wyoming breached the compact by allowing its upstream pre-1950 water users to switch from flood to sprinkler irrigation.  North Dakota, a signatory to the compact, is also a defendant in the litigation. 

A special master determined in a report filed on March 8, 2010, that Montana's allegation fails to state a claim because more efficient irrigation systems are permissible under the compact as long as the conserved water is used to irrigate the same acreage watered in 1950.

Delivering the high court's opinion, Justice Clarence Thomas said that because the compact incorporates the ordinary doctrine of appropriation without significant qualification, and because in the two states that doctrine allows the appropriators to improve their irrigation systems, Montana's increased efficiency allegation fails to state a claim for breach of the compact. 

Dissenting, Justice Antonin Scalia said the compact's "focus on whether a use depletes a river's water supply - not whether it diverts the river's flow - significantly limits the volume of water to which Wyoming is entitled."

The dissenting justice said that the interpretation that Wyoming's beneficial users' net consumption of water - the volume of water diverted from the river minus the volume that flows back into the river's channel - gives meaning to the definition of the word "depleted." 

"The only question before us is whether 'beneficial use' measures the volume diverted or the volume depleted - and the language of the compact makes that clear," Justice Scalia said. 

Justice Scalia said he disagreed with the majority because the majority's "analysis substitutes its none-too-confident reading of the common law . . .  for the Compact's definition of 'beneficial use.'" 

Justice Elena Kagan took no part in the decision. 

[Editor's Note:  Full coverage will be in the May issue of the LexisNexis Real Estate Report.  In the meantime, the opinion is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.  Document #82-110520-012Z.  For all of your legal news needs, please visit www.lexisnexis.com/mealeys.] 

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