ATTORNEY GENERAL MIKE MCGRATH
STATE OF MONTANA

FOR RELEASE: February 1, 2007

CONTACT: Sarah Elliott, 444-9725; Lynn Solomon, 444-0582 or Judy Beck, 444-5774

Montana Sues Wyoming in U.S. Supreme Court

HELENA – The State of Montana sued the State of Wyoming in the United States Supreme Court Thursday in an effort to enforce the provisions of the Yellowstone River Compact.

Montana Governor Brian Schweitzer and Attorney General Mike McGrath made the announcement in a press conference at the capitol.

"In the West, a deal is still a deal," Schweitzer said. "Wyoming signed a compact that said Montana would get its fair share of water and Wyoming has not been holding up its end of the deal."

The dispute centers on the Yellowstone River Compact and the states' different interpretations of it. Montana, Wyoming and North Dakota entered into the compact in December 1950, each state's legislature ratified it and the U.S. Congress consented to the compact in 1951.

"Montana is faced with an upstream neighbor that denies it has any obligations to supply water to Montana," McGrath said. "The dispute directly affects the amount of water that Montana receives.

"Without the water allocated to Montana by the Compact, Montana's water users will continue to suffer," he added.

The complaint (PDF) filed Thursday asks the court to order Wyoming to deliver more water in the Tongue and Powder Rivers according to the compact and award the State of Montana damages, costs and other relief. It does not specify an amount.

Montana interprets the compact to allocate the waters that were in actual use in each state at the time of the compact. Wyoming, meantime, asserts that "pre-1950" rights are excluded from the compact.

In 2004 and again in 2006, Montana experienced severe water shortages in the Tongue and Powder River Basins. Each time, Montana notified Wyoming that Montana's "pre-1950" uses were unsatisfied due to the shortages and called for Wyoming to provide the water apportioned to Montana. Each time, Wyoming failed to curtail consumption for the benefit of its downstream neighbor Montana.

Wyoming has allowed its water users to diminish the natural flow of the Tongue and Powder Rivers beyond the depletions that were occurring in 1950.

• Wyoming has increased its amount of reservoir storage since Jan. 1, 1950, by 216,000 acre-feet in the Powder Basin and 9,400 acre-feet in the Tongue Basin.
• Wyoming has also allowed new acreage to be put under irrigation in the Tongue and Powder River Basins.
• Wyoming has also allowed the installation of more than 20,000 coal bed methane wells in the Powder River Basin and a smaller number in the Tongue River Basin.

"The lack of adequate water has consequences throughout southeastern Montana," Schweitzer said. "A lack of quality irrigation water reduces hay production, which diminishes ranchers' flexibility to hold on to their cattle long enough to get the best price at market.

"Shortages affect retailers and service providers all through the region," he added.

Wyoming now has 60 days to respond, then the Supreme Court will decide whether to take the case.

State of Montana v. State of Wyoming
At a Glance

The Rivers

The Tongue River is an interstate tributary of the Yellowstone River. It originates in the Bighorn Mountains in northern Wyoming and flows northeast across the Wyoming-Montana state line to its confluence with the Yellowstone River at Miles City. The length is approximately 225 miles. Irrigation is the primary use in both states.

The Powder River is also an interstate tributary of the Yellowstone. It originates in the Bighorn Mountains of northern Wyoming immediately to the east of the Tongue. The Powder River flows generally north across the state line and runs north in Montana to its confluence with the Yellowstone near Terry. The Powder River is approximately 500 miles long. Irrigation has been the primary water use in both states. Water production in connection with the production of coalbed methane has increased sharply in recent years and is expected to increase further in the near future.

The Compact
Montana, Wyoming and North Dakota entered into the compact in December 1950, and the states' legislatures ratified it. The U.S. Congress consented to the compact in October 1951.

• The compact begins by declaring the intention of the three states to "remove all causes of present and future controversy" between the states "with respect to the waters of the Yellowstone River and its tributaries."
• It includes the states' desire to "provide for an equitable division and apportionment of such waters."
• The compact excludes the waters within or contributing to the flow of the streams within Yellowstone National Park.

North Dakota
North Dakota is named as a defendant because it is a party to the compact. Montana seeks no relief against North Dakota.

Original Jurisdiction
The United States Supreme Court has original jurisdiction over cases and controversies between the states. The jurisdiction has been exclusive since the first congress in 1789.

Relief
Montana is asking the U.S. Supreme Court to:

• command the State of Wyoming in the future to deliver the waters of the Tongue and Powder Rivers according to the compact;
• award the State of Montana all damages and other relief for injury suffered by Montana as a result of Wyoming's past and current violations of the compact with respect to the Tongue the Powder, and
• grant such costs and "other relief" as the Court deems appropriate.