Montana v. Wyoming (137-Orig)

argument 137-Orig

Montana v. Wyoming

Supreme Court of the United States 1h 1m 5 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the core dispute between Montana and Wyoming over the 1950 water compact?

John G. Roberts 0:01

Next this morning in case 137 on our original docket, Montana versus Wyoming and North Dakota. General Bullock.

Steve Bullock 0:14

Mr. Chief Justice, and may it please the Court, the Tongue and Powder Rivers are the only significant water supply in a 10,000 square mile area in Montana and Wyoming. And this Court is being asked to decide whether the compact allows Wyoming to take the return flows that Montana farmers in that area have always relied on or instead affords protection to both States. Our exception should be sustained for three reasons. First, the plain language of the Compact preserves the water supply each State was receiving as of 1950. Second, contrary to the Compact's purposes, the master's interpretation would allow individual water users to alter those amounts. And third, the master's policy determinations about efficiency,

Steve Bullock 0:57

add ambiguity to the principles underlying a century of Western water law.

Ruth Bader Ginsburg 1:03

General Bullock, would you please point to the precise language of the compact that freezes consumption as distinguished from the amount of water diverted freezes consumption as of January 1, 1950?

Steve Bullock 1:25

Yes. Yes, Your Honor. In the compact, it's at the appendix of the master's first interim report, two areas. First, that the preamble provides for an equitable division apportionment of the water, and then the operative provision, Article 5A, states that the uses existing as of January 1, 1950, in each signatory state shall continue to be enjoyed.

Ruth Bader Ginsburg 1:51

Well, the uses existing is irrigations. I don't see where it says, and so I can understand the amount of water diverted can't be increased.

Steve Bullock 2:07

Your Honor, the whole of Article 5A and 5B, I mean, no one can test if it's a full allocation of the water. So 5B is water after 1950. 5A is prior. And in order for the status quo to be remained, for the appropriative rights to beneficial uses existing in Montana as of 1950, there needs to be a water supply. And also operative to that, it's within the definitions that Article 2H is beneficial use. And that's a derivation or departure from the general prior appropriation law because it's that use by which a water supply is depleted.

Unknown 2:44

But why doesn't the language in Article 5A and this is not too helpful, simply restate the issue before us. What is a beneficial use by the upstream owner?

Steve Bullock 2:56

Well, Your Honor, it need not, because in Article 2H it defines what a beneficial use is. And that's that use by which the water supply of a basin is depleted. And it's that depletion that, as of 1950, so it wasn't a full consumption of water in Wyoming, and that depletion is the return flow upon which Montana has relied. Well,

Elena Kagan 3:20

that's the essence. That's the essence of the argument before us. The depletion was the amount of water that was taken from this water source to irrigate the crops. The issue now before us is whether beneficial use means consumption or it means use. Isn't it — you're begging the question in my mind, because I don't — what source do you have for the fact that a return flow is beneficial use?

Steve Bullock 3:52

Your Honor — The return flow is the basis of Montana's water right. So that the return flow under the compact isn't actually beneficial. JUSTICE

Elena Kagan 4:05

SOTOMAYOR That's not actually true. Their water right was the beneficial use that your pre-1950 consumers used, meaning you had consumers who were irrigating their own crops, who were doing other things with the water, The rights protected are their pre-1950 uses. You're putting — you're still equating consumption as being their use, but I don't know where you get that equation from.

Steve Bullock 4:45

The equation, Your Honor, that consumption is the same thing as

Elena Kagan 4:49

— As use.

Steve Bullock 4:50

As use? Well — We could go actually to the special master who himself had stated that when exploring, I mean, the beneficial use reflects the historic consumptive use. It's from his own textbook. It's on page 82. The master says that a senior's right is limited to the amount he originally beneficially applied and consumptively used, that is, the amount received at the point of use minus the runoff.

Elena Kagan 5:19

Could someone pre-1950 who irrigated crops change the crops?