- Associated Press - Tuesday, December 30, 2014

CHEYENNE, Wyo. (AP) - A senior lawyer with the Montana Attorney General’s Office said Tuesday that he sees areas of victory for the state in a hearing officer’s recommendation this week on how the U.S. Supreme Court ought to rule in a dispute over allocation of water on the Tongue River.

Barton Thompson Jr., a Stanford University law professor, has been presiding as a special master over a lawsuit that Montana filed against Wyoming in 2007 in the U.S. Supreme Court. Thompson on Monday released a 350-page report to the court recommending that it find Wyoming shorted Montana in water deliveries in only two recent years.

If adopted by the court, Thompson’s report would hand Montana far less water than it had wanted. It had gone into the case claiming that Wyoming had been shorting it on water deliveries at the state line nearly every year since 1950 - the year the two states and North Dakota entered a formal agreement over how to administer water on the Tongue and Powder rivers.

Wyoming officials including Gov. Matt Mead said this week that Thompson’s recommendation amounted to a clear victory for Wyoming.

Montana suffered perhaps its biggest setback in the case in 2011 when the Supreme Court agreed with Thompson that Wyoming irrigators had the right to deplete Tongue River flows by more than they had in 1950.

Montana had claimed it was improper for Wyoming irrigators to use sprinkler irrigation on their fields. Compared with older flood-irrigation methods, Montana claimed that sprinklers unfairly used more of the water that was diverted from the river while returning little. However, the Supreme Court ruled the new irrigation methods didn’t violate the compact.

Although Thompson ruled against most of Montana’s under-delivery claims, Deputy Montana Attorney General Cory Swanson on Tuesday stressed the report would establish that Wyoming must cut off irrigation to lands with water rights established after the 1950 if Montana lands with pre-1950 rights aren’t getting fully irrigated.

“That’s what’s very important about our prevailing in two of those years,” Swanson said. “The damages that may ultimately come out of that in the next phase of trial may be smaller, we all recognize that. But the forward-looking ability for us to have prospective relief where we can ensure our direct flow irrigation rights are upheld - we secured that with the two years of Wyoming being held liable.”

Swanson said he can’t quantify how much water post-1950 Wyoming users may have been taking in dry years, but he said every drop counts to Montana water users with senior rights downstream.

Swanson also said the report recognizes Montana’s right to fill the Tongue River Reservoir to its irrigators’ needs for water in the springtime before Wyoming can fill reservoir capacity built after 1950. The report also recognizes Montana has managed the reservoir properly.

“This thing’s a monster case,” Swanson said of the lawsuit. “We each won some points and lost some points. I understand Wyoming saying, ‘Yeah, we won this thing.’ But in terms of how we go forward to the next stage, and how we protect our rights on a going-forward basis, Montana is happy with the wins that we feel we got out of this report.”

Wyoming Attorney General Peter Michael said Tuesday that Montana’s victory on the issue of being able to call for cutting off post-1950 Wyoming irrigators may be more one of principle than substance.

Wyoming originally had argued that Montana didn’t have standing to call for cutting off any landowners in Wyoming, but it didn’t appeal when the court ruled against the state on that point in 2009.

“They potentially will have times when they can call up some water from Wyoming. There’s no doubt there’s some potential’s there,” Michael said. “But it won’t be huge because most of our water users on the Tongue River have pre-1950 rights.”

Either state could protest the proposed report and call for more legal hearings. But lawyers for both states said they’re still reviewing it and haven’t decided how to proceed.

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