SHERIDAN — Wyoming lost a lawsuit against Montana regarding misuse of water rights in the Tongue River, but attorneys involved in the case see it as a win. Thirteen claims of water misuse downsized to two, Wyoming ended with minimal costs to Montana and regulations going forward remain fair to both states.
The issue dates back to 2004 and 2006, when Montana sent letters to Wyoming declaring misuse. The lawsuit was officially filed in January of 2007, and the Supreme Court awarded judgement against the state of Wyoming Feb. 20 of this year.
Montana hired private attorneys out of New Mexico to handle the case, spending millions of dollars on attorney fees. Wyoming utilized appointed attorneys general and spent the budgeted $1 million for the 11-year case.
“When you do that, you want to come back with a W, and as far as I’m concerned I think we got a W,” Wyoming Attorney General Pete Michael said.
The contract defining water usage between Montana, Wyoming and North Dakota dates back more than 65 years. The Yellowstone River Compact, ratified and effective in 1951, apportioned the waters of the Yellowstone River and its tributaries between Montana, North Dakota and Wyoming. According to the Yellowstone River Compact Commission website, the compact provides for an equitable division and apportionment of the waters of the Yellowstone River and its tributaries, encourages the beneficial development and use of the basin’s waters, furthers intergovernmental cooperation and removes causes of controversy over distribution and use of water.
The issue of misuse arose in 2004 when Montana claimed Wyoming used more than its fair share of water from the Tongue and Powder Rivers, both tributaries of the Yellowstone River. Initially, Montana claimed 13 years of water misuse by Wyoming in both the Tongue and Powder rivers.
Claims of misuse on the Powder River were dismissed later due to weak arguments from Montana.
The two claims proven true were those of Wyoming reducing the volume of water available in the Tongue River by 1300 acre-feet in 2004 and 56 acre-feet in 2006.
The judgment required the state of Wyoming to pay $20,340 plus 7 percent interest per year until fully paid for the 2004 and 2006 incidents.
In addition to the judgment payments, costs owed by Wyoming to Montana totaling $67,270.87 must be paid by May 20 into an account specified by Montana to be used or distributed for improvements to the Tongue River Reservoir or related facilities in Montana.
Montana filed for disgorgement damages — for supposed purposeful misuse of water rights — and injunctive relief. Both actions were denied by the Supreme Court as it was determined Wyoming’s breach was not knowing, willful or reckless.
In addition to the payments, Montana holds the right to make a call to Wyoming and have it appropriate water per the post-Jan.1, 1950, compact agreement. Before a call is made, though, Montana must first attempt to remedy the water shortages through intrastate means before making a call to Wyoming.
Montana also holds the right to fill Tongue River Reservoir up to 72,000 acre-feet. If the state believes it will not fill to that amount with snow runoff, it may then put in a call to Wyoming for water.
“Until we get a call from Montana, it’s business as usual,” Wyoming Division II water superintendent Dave Schroeder said.
Schroeder said when a call comes in, he and his staff will hit the ground running and begin measuring elevation and storage amounts of all 27 compact reservoirs monitored by the Yellowstone River Compact Commission. Helping with those monitors are five newly installed telemetry devices, which help track levels on reservoirs unreachable during the winter months.
Despite the loss in the official books, Wyoming officials claim a win in the lengthy lawsuit with Montana and anticipate a fair and regulated future of water rights for the bordering states.