Montana v. Wyoming, 137, Orig.

CourtUnited States Supreme Court
Citation131 S.Ct. 1765,179 L.Ed.2d 799,563 U.S. 368
Docket NumberNo. 137, Orig.,137, Orig.
Parties State of MONTANA, Plaintiff, v. State of WYOMING and State of North Dakota.
Decision Date02 May 2011

563 U.S. 368
131 S.Ct.
179 L.Ed.2d 799

State of MONTANA, Plaintiff,
State of WYOMING and State of North Dakota.

No. 137, Orig.

Supreme Court of the United States

Argued Jan. 10, 2011.
Decided May 2, 2011.

Steve Bullock, Attorney General, for Plaintiff.

Peter Kenneth Michael, for Defendant Wyoming.

William M. Jay, for United States, as amicus curiae, by special leave of the Court, supporting the Defendants.

Justice THOMAS delivered the opinion of the Court.

563 U.S. 371

This case arises out of a dispute between Montana and Wyoming over the Yellowstone River Compact. Montana alleges that Wyoming has breached Article V(A) of the Compact by allowing its pre–1950 water appropriators to increase their net water consumption by improving the efficiency of their irrigation systems. The new systems, Montana alleges, employ sprinklers that reduce the amount of wastewater returned to the river, thus depriving Montana's downstream pre–1950 appropriators of water to which they are entitled. The Special Master has filed a First Interim Report determining, as relevant here, that Montana's allegation fails to state a claim because more efficient irrigation systems are permissible under the Compact so long as the conserved water is used to irrigate the same acreage watered in 1950. We agree with the Special Master and overrule Montana's exception to that conclusion.


From its headwaters in Wyoming, the Yellowstone River flows nearly 700 miles northeast into Montana and then North Dakota, where it joins the Missouri River. Several of its tributaries, including the Clarks Fork, Tongue, Powder, and Bighorn Rivers, also begin in Wyoming and cross into Montana before joining the main stem of the Yellowstone

563 U.S. 372

River. This river

131 S.Ct. 1770

system's monthly and annual flows, which are dictated largely by snow melt, vary widely. In 1964, for example, the flow in the Tongue and Powder Rivers was nearly 10 times the 1961 flow. App. 936. As the rivers came into heavy use for irrigation, it became expedient to build water storage facilities for preserving the heaviest flows. See First Interim Report of Special Master 6 (hereinafter Report).

Before funding new water storage facilities, Congress sought agreement as to the allocation of the Yellowstone River system among Wyoming, Montana, and North Dakota. In 1932, Congress granted the States permission to negotiate a compact. See Act of June 14, 1932, ch. 253, 47 Stat. 306. Draft compacts were produced in 1935, 1942, and 1944, but none was fully agreed upon. Finally, in 1951 Montana, Wyoming, and North Dakota ratified the Yellowstone River Compact, and Congress consented to it. Act of Oct. 30, 1951, 65 Stat. 663.

The Yellowstone River Compact divides water into three tiers of priority. First, Article V(A) provides: "Appropriative rights to the beneficial uses of the water of the Yellow-stone River System existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation."Id., at 666. Second, Article V(B) allocates to each State the "quantity of that water as shall be necessary to provide supplemental water supplies" for the pre–1950 uses protected by Article V(A). Ibid. Third, "the remainder of the unused and unappropriated water" of each tributary is divided by percentage: Wyoming receives 60% of the remaining water in the Clarks Fork River, 80% in the Bighorn River, 40% in the Tongue River, and 42% in the Powder River; the rest goes to Montana. Id., at 666–667.

In February 2008, we granted Montana leave to file a bill of complaint against Wyoming for breach of the Compact.

563 U.S. 373

552 U.S. 1175, 128 S.Ct. 1332, 170 L.Ed.2d 56. Montana alleged that Wyoming had breached the Compact by consuming more than its share of the Tongue and Powder Rivers. Bill of Complaint 3, ¶ 8. Specifically, Montana claimed that Wyoming was appropriating water for a number of new, post–1950 uses: irrigating new acreage; building new storage facilities; conducting new groundwater pumping; and increasing consumption on existing agricultural acreage.1 Id., at 3–4, ¶¶ 9–12. According to Montana's complaint, the Compact did not permit Wyoming to use water for any of these practices as long as Montana's pre–1950 users' rights remained unfulfilled. Id., at 3, ¶ 8.

In response, Wyoming filed a motion to dismiss the complaint. We appointed a Special Master and referred the motion to him. 555 U.S. ––––, 129 S.Ct. 480, 172 L.Ed.2d 325 (2008). After briefing and argument, the Special Master recommended that we deny Wyoming's motion, because at least some of Montana's allegations state a claim for relief. The Special Master found that "Article V of the Compact protects pre–1950 appropriations in Montana from new surface and groundwater diversions in Wyoming, whether for direct use or for storage, that prevent adequate water from reaching Montana to

131 S.Ct. 1771

satisfy those pre–1950 appropriations." Report 14–15. But the Special Master agreed with Wyoming that Montana's allegations regarding "efficiency improvements by pre–1950 appropriators in Wyoming" do not state a claim for relief. Id., at 15. The States did not object to most of the Special Master's findings, and we have issued orders accordingly.

563 U.S. 374

See 562 U.S. ––––, 130 S.Ct. 1753, 176 L.Ed.2d 210 (2010) ; 562 U.S. ––––, 131 S.Ct. 497, 178 L.Ed.2d 284 (2010). Montana has filed an exception to the Special Master's rejection of its increased-efficiency allegation. It is this exception that is before us.2


Article V(A) of the Compact states that "[a]ppropriative rights to the beneficial uses of [water] ... existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation." Montana claims that its pre–1950 appropriators' rights are not "continu[ing] to be enjoyed" because upstream pre–1950 appropriators in Wyoming have increased their consumption by switching from flood to sprinkler irrigation. Montana alleges that sprinkler systems increase crop consumption of water and decrease the volume of runoff and seepage that returns to the Tongue and Powder rivers by 25% or more.3 See Montana's Exception and Brief 3 (hereinafter Brief for Montana). As a result, even if Wyoming's pre–1950 water users divert the same quantity of water as before, less water reaches Montana. According to Montana, Article V(A) prohibits Wyoming from allowing this practice when it deprives Montana's pre–1950 users of their full water rights.

The question, therefore, is whether Article V(A) allows Wyoming's pre–1950 water users—diverting the same quantity of water for the same irrigation purpose and acreage as before 1950—to increase their consumption of water by

563 U.S. 375

improving their irrigation systems even if it reduces the flow of water to Montana's pre–1950 users. Montana makes two basic arguments: that background principles of appropriation law, to the extent they are incorporated into the Compact, do not allow such an increase in consumption; and that even if they do, the terms of the Compact amended those principles in Montana's favor. The Special Master rejected these arguments, and so do we.


Because Article V(A) of the Compact protects "[a]ppropriative rights to the beneficial uses of [water]" as of 1950 "in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation," we begin with an overview of appropriation doctrine.4 As

131 S.Ct. 1772

the Special Master explained, if "[a]ppropriation law clearly proscribe[s] increases in consumption on existing acreage to the detriment of downstream appropriators, the Compact arguably would prohibit Wyoming from allowing its appropriators to make such increases to the detriment of Montana's pre–1950 uses." Report 65.

As is typical west of the 100th meridian, the doctrine of appropriation has governed water rights in Montana and Wyoming since the 1800's. See, e.g., Basey v. Gallagher, 20 Wall. 670, 683, 22 L.Ed. 452 (1875). As relevant here, the doctrine provides that rights to water for irrigation are perfected and enforced in order of seniority, starting with the first person

563 U.S. 376

to divert water from a natural stream and apply it to a beneficial use (or to begin such a project, if diligently completed). See Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 98, 58 S.Ct. 803, 82 L.Ed. 1202 (1938) ; Arizona v. California, 298 U.S. 558, 565–566, 56 S.Ct. 848, 80 L.Ed. 1331 (1936) ; Wyo. Const., Art. 8, § 3 ("Priority of appropriation for beneficial uses shall give the better right"). The scope of the right is limited by the concept of "beneficial use." That...

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