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Montana Wins A Round In Water Lawsuit

Publication Date: 
June 04, 2009
The Washington Examiner - Associated Press
Matthew Brown

Professor Barton H. "Buzz" Thompson, Jr., the Special Master appointed by the U.S. Supreme Court in a water rights dispute between Montana and Wyoming, is quoted in an Associated Press article whether to dismiss the lawsuit filed by the State of Montana:

Montana filed its lawsuit before the nation's highest court in 2007. The suit alleged Wyoming's agriculture and energy industries were pulling too much water from the Tongue and Powder rivers, tributaries of the Yellowstone. The case is before Special Master Barton Thompson, a Stanford University water-law expert appointed by the court.


In a written opinion released Wednesday, Thompson shot down several of Wyoming's arguments over why it is not violating terms of a 1950s water agreement between the states.


Montana Attorney General Steve Bullock said that in rejecting some of Wyoming's key arguments, Thompson had set the legal "guideposts" within which Montana can prove its case.


After being asked to dismiss the case on those grounds, Thompson wrote in a 43-page opinion, signed Tuesday, that pre-1950 water rights were "unambiguously" protected.

Thompson said those protections also extend to the withdrawal of groundwater _ that is, water carried not by the two rivers but found within underground aquifers or other locations across the basin. Groundwater often feeds into nearby rivers.


"The language reflects a clear intent to cover all sources of water for the Yellowstone River and its tributaries," he wrote.

Thompson's opinion favored Wyoming on two other issues.

He wrote that the compact does not require Wyoming reservoirs stocked when water is plentiful to release that water later, when supplies run short downstream in Montana. And he said Wyoming farmers are not prohibited from using more efficient irrigation systems simply because those systems use more water.


"All this does is say the case can go forward on some issues," he said. "We're very early in the whole process."