Special Master Rules Against Montana Water Claims

Montana went into trial claiming Wyoming had shorted Montana farmers about 10,000 acre-feet of water

By BEN NEARY, Associated Press

CHEYENNE, Wyo. — A special master presiding over an interstate water rights lawsuit pending before the U.S. Supreme Court recommends denying most of Montana’s remaining claims that Wyoming failed to deliver enough water on the Tongue River.

If ultimately accepted by the Supreme Court, Monday’s report by Barton Thompson Jr. will resolve the bulk of the lawsuit that Montana filed against Wyoming in 2007 while leaving Montana little to show for it.

“What this case confirms is that the primary solution to water issues in Montana on the Tongue River can be found in Montana’s operation of the Tongue River Reservoir,” Wyoming Attorney General Peter Michael said Monday. He had worked on the case for Wyoming for years before taking over as attorney general.

Michael said he’s reviewing Thompson’s report and may appeal on some points. “Montana failed to use immense amounts of water during the drought years of the last decade,” he said, “and Wyoming believes that the compact requires more diligence from Montana before it can be heard to complain about uses in Wyoming.”

Montana had launched the litigation saying it intended to prove that Wyoming had been shorting it on water deliveries at the state line nearly every year since 1950 — the year the two states and North Dakota entered a formal agreement over how to administer water on the Tongue and Powder rivers.

Montana originally had claimed it was improper for Wyoming irrigators to use sprinkler irrigation on their fields. Compared with older flood irrigation methods, Montana claimed that sprinklers unfairly used more of the water that was diverted from the river while returning little.

The Supreme Court ruled earlier that Wyoming irrigators could use more efficient irrigation methods without violating the compact.

Montana also had challenged the effect on river flows of pumping groundwater for coal-bed methane production in Wyoming. However, Thompson ruled Montana failed to prove that CBM pumping was hurting water deliveries at the state line.

Thompson made a series of rulings significantly limiting Montana’s claims before presiding at a 25-day trial last year.

Thompson, a law professor at Stanford University, had ruled before trial that Montana couldn’t claim that Wyoming had failed to deliver adequate water on the Tongue River in years when Montana hadn’t demanded more water at the state line. That and other rulings left Montana with only a few years to argue about.

Montana went into trial claiming Wyoming had shorted Montana farmers about 10,000 acre-feet of water over the last decade. An acre-foot is the amount of water covering an acre to a depth of 1 foot, or about 325,000 gallons.

Thompson stated in Mondays’ report that although Montana suffered shortages in many years, the state could only prove that it gave notice to Wyoming seeking more water and suffered actual damages in 2004 and 2006. He ruled Wyoming owes Montana for 1,356 acre-feet of water it failed to deliver in those two years.

“Under my analysis, Wyoming’s liability is relatively small,” Thompson wrote in Monday’s report. He recommended the Supreme Court should endorse further proceedings to determine the damages Wyoming owes for its underdelivery.

Anastasia Burton, spokeswoman for Montana Attorney General Tim Fox, issued a statement Monday emphasizing that Thompson’s report found that Wyoming had violated the Yellowstone River Compact.

“The decision found Wyoming liable for depriving Montana of water in 2004 and 2006, years in which severe drought conditions significantly harmed Montana farmers and ranchers along the Tongue River,” Burton said.

Burton said the Montana attorney general’s office would review the 350-page report and make more detailed comments later. “For the moment, we consider this decision an important step to ensuring Montana irrigators will be able to enjoy their senior water rights on the Tongue River,” she stated.

Wyoming claims that in 2004 and 2006, the years when it failed to deliver required water, there was surplus water for sale in the Tongue River system for $10 an acre-foot. It maintains that damages in the case should be capped at the value of the water in those years, or about $14,000.

Wyoming Gov. Matt Mead said Monday he’s proud of work by the Wyoming attorney general’s office and state engineer’s office on the case. He said Michael and Wyoming state engineer Patrick Tyrrell had led an extraordinary effort over the past several years “to demonstrate that Montana’s claims that Wyoming was wrongfully using massive quantities of water were baseless.”

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