Montana v. Wyoming
131 S. Ct. 1765 (2011)
In Montana v. Wyoming, the United States Supreme Court held that under Article V(A) of the Yellowstone River Compact (“Compact”) neither the doctrine of prior appropriation nor the doctrine of recapture prohibit upstream water-rights users from increasing the efficiency of their irrigation systems, even if the increased use is detrimental to downstream water-rights holders of otherwise equal seniority. In doing so, the Court affirmed the findings of the Special Master and held that Montana’s complaint regarding the increased efficiency of irrigation systems in Wyoming failed to state a claim under Article V(A) of the Compact.
In 1951, Montana, Wyoming, and North Dakota ratified the Compact, which allocates the flow of the Yellowstone River and its various tributaries. The Compact divides water into three tiers of priority: (1) beneficial water rights existing at the time the Compact was written; (2) the “water as shall be necessary to provide supplemental water supplies” for the existing rights; and (3) “the remainder of the unused and unappropriated water” of each tributary that was allocated to each state in the Compact. Wyoming, as the upstream state, received specific percentages of the flow in each river basin, and Montana received the remainder.
In 2008, Montana filed a complaint alleging that Wyoming breached the Compact. Montana alleged that Wyoming was appropriating more water than it had in 1950 and that that water was being utilized for new uses, including “irrigating new acreage, building new storage facilities, conducting new groundwater pumping, and increasing consumption on existing acreages.” The Court appointed a Special Master to oversee the proceedings.
After briefing and oral argument, the Special Master determined that some of Montana’s allegations stated a claim but recommended dismissal of the portion of Montana’s allegations regarding “efficiency improvements by pre-1950 appropriators in Wyoming.” Montana appealed this portion of the Special Master’s recommendation.
Montana alleged that some of its pre-1950 appropriators had been harmed because upstream appropriators in Wyoming had switched from flood irrigation to sprinkler irrigation, which was significantly more efficient. This increase in efficiency means less water returned to the river for downstream users in Montana. The Court then summarized Montana’s two basic arguments. First, well-established principles of prior appropriation do not permit such an increase in consumption. Second, even if they do, the terms of the Compact “amended those principles in Montana’s favor.”
To analyze these arguments, the Court undertook an overview of the appropriation doctrine and concluded that water rights are “perfected and enforced in order of seniority” and that the scope of the right is limited by “beneficial use.” The Court determined that the beneficial use doctrine restricts an appropriator to the “amount of water that is necessary to irrigate his land by making a reasonable use of the water.” Once a senior water right is perfected, “it is senior to any later appropriators’ rights and may be fulfilled entirely before those junior appropriators get any water at all.” The Court used this analysis to conclude that because the Compact assigned the same seniority level to all pre-1950 users in Montana and Wyoming, Montana’s pre-1950 users are junior appropriators because they are located downstream. Therefore, in a low-water year, upstream appropriators may lawfully consume all of the water, leaving none for the downstream users. However, the Court also noted that“[j]unior appropriators are not completely without rights” and under the no-injury doctrine, senior users cannot enlarge their water rights to the detriment of the junior users. The Court then summarized the overall issue of the case, and asked: “Is a switch to more efficient irrigation with less return flow within the extent of Wyoming’s pre-1950 users’ existing appropriative rights, or is it an improper enlargement of that right to the detriment of Montana’s pre-1950 water users?”
The Court subsequently undertook an analysis of the no-injury rule. First, it noted the no-injury rule is “not absolute” and is generally confined to harm resulting from changes in the specific point of diversion and nature of the use. “Accordingly,” the Court reasoned, “certain types of changes can occur even though they may harm downstream appropriators.” Well-established and acceptable changes include changing the crop to a more water-intensive variety, or even utilizing existing rights to irrigate increased acreage so long as the appropriator contemplated that increased future use when the water was originally diverted. The Court reasoned that efficiency improvements to irrigation systems are the “sort of changes that fall outside the [scope of the] no-injury rule as it exists in Montana and Wyoming.” Next, the Court discussed the doctrine of recapture, which it determined also supported allowing improvements in irrigation efficiency within the original water right. Despite Montana’s argument to the contrary, the Court determined that Montana and Wyoming both apply the established doctrine that allows a user to freely recapture his water “while it remains on his property and reuse it for the same purpose on the same land.” It cited Montana and Wyoming Supreme Court cases to support this argument, and concluded that increases in efficiency due to sprinkler irrigation instead of flood irrigation are simply a different and more efficient method of recapture.
Because it found that both the doctrine of no-injury and the doctrine of recapture support appropriators’ rights to increased efficiency, the Court concluded that if Article V(A) “simply incorporates background principles of appropriation law, it allows Wyoming’s pre-1950 water users to improve their irrigation efficiency, even to the detriment of Montana’s pre-1950 users.”
Next, the Court addressed Montana’s second argument, which alleged that even if traditional principles of appropriation support Wyoming’s position, Article V(A) defines “beneficial use” in such a way that pre-1950 water users are guaranteed the net quantity of water they received at the time the Compact was ratified. Montana contended that beneficial use, as defined by the Compact, was the “amount of depletion.” Therefore, Montana claimed that Wyoming should be required to allow the same amount of water to flow downstream as it did at the time the Compact was ratified.
Article V(A) defines beneficial use as “that use by which the water supply . . . is depleted.” The Court stated that this definition “is fairly clear” and decided that “use” only means “a use which depletes the water supply.” Nothing, according to the Court, suggests that “beneficial use” means “a measure of the amount of water depleted.” The Court thus dismissed Montana’s argument that “beneficial use” should be defined in terms of net water consumption. In support, it noted that irrigation was the preferred “depletive use” at the time the Compact was drafted (as opposed to power generation—a non-depletive use) and that the Preamble to the Compact recognized “the great importance of water for irrigation in the signatory States.” Therefore, according to the Court, if the Compact meant to redefine the existing and widely understood definition of “beneficial use,” it could have easily done so in explicit terms. Because the Compact did not include any terms regarding the amount of water consumed or the volume of water left in the river, the Court agreed with the Special Master that “the definition of beneficial use in the Compact is unremarkable” and, therefore, Article V(A) “does not change the scope of the pre-1950 appropriative rights that it protects in both states.”
Finally, the Court stated that “if article V(A) were intended to guarantee Montana a set quantity of water, it could have done so as plainly as other compacts that do just that.” By 1950, Wyoming had in fact already entered into at least one other compact that defined water rights in terms of depletion instead of guaranteeing other users a specific quantity of water. The Court determined Montana’s assertion “that Article V(A) accomplishes essentially the same sort of depletive allocation with language that has a different and longstanding meaning” was unpersuasive. Accordingly, the Court concluded that both the plain terms of the Compact and the existing appropriation doctrine allow upstream irrigators to increase the efficiency of their water use, even to the detriment of downstream appropriators. Therefore, the Court upheld the Special Master’s findings.
This decision is only the first round in what will likely be a long process of settling Montana’s complaints against Wyoming regarding the Compact. The Court found that upstream appropriators are senior to downstream appropriators even if both users had perfected their water rights at the same time. This determination was made without citation to existing authority and it is unclear from the decision that either Montana or Wyoming had ever adopted this approach. The Court then made clear and definite holdings regarding the wide-ranging rights of appropriators that the Court deemed senior merely because of their geographic location. Therefore, this decision is important precedent for future water-rights litigation in Montana, Wyoming, and other western states.