- Associated Press - Thursday, April 9, 2015

CHEYENNE, Wyo. (AP) - The state of Montana is urging the U.S. Supreme Court to extend a legal dispute with Wyoming over water on the Tongue River.

Montana sued Wyoming in 2007, claiming Wyoming had shorted water deliveries for decades.

Barton Thompson Jr., a Stanford University law professor, has been presiding as a special master over the lawsuit. He concluded in a report to the court in December that Wyoming had shorted Montana in water deliveries in only two recent years.

Both states on Thursday filed responses to Barton’s report.

Wyoming urged the Supreme Court to accept the report, and offered to pay roughly $36,000 to Montana to cover the market value of the water it failed to deliver plus interest. “Wyoming asks this court to exercise its authority to end this litigation immediately to avoid the needless expense associated with further proceedings,” the Wyoming Attorney General’s Office stated in its brief.

Wyoming argued that both states should bear their own expenses in the case, arguing that both prevailed on certain aspects of the dispute.

Montana, in its filing, urged the court to reject Thompson’s finding that it wasn’t necessary to determine how much water Montana has a right to store in the Tongue River Reservoir. Montana urged the court to allow further legal proceedings before Thompson to determine its storage right.

“Montana prevailed in the special master’s ruling on this case and Wyoming has acknowledged that it violated terms of the Yellowstone River Compact by failing to provide water to Montana when called upon to do so,” Montana Attorney General Tim Fox said Thursday in a prepared statement.

“I am asking the U.S. Supreme Court to uphold the special master’s ruling in favor of Montana, and that it uphold Montana’s full measure of damages for Wyoming’s violation of the compact,” Fox said. “Moreover, since Montana prevailed it is entirely appropriate for Wyoming to pay all fees and costs associated with this litigation.”

Montana has spent millions on the case, for which it hired private attorneys. The Wyoming Attorney General’s Office used staff attorneys.

Congress approved a compact spelling out allocation of water in the river system in the early 1950s. In the current litigation, Montana failed to prevail in a major claim that Wyoming farmers shouldn’t be allowed to take more water from the river for irrigation than they had when the compact was approved.

The Supreme Court has rejected Montana’s argument that Wyoming farmers shouldn’t be allowed to take more water from the Tongue River by using modern sprinkler irrigation. Montana argued that flood irrigation, in use before 1950, allowed more water to return to the river.

Although Thompson ruled against most of Montana’s under-delivery claims, he also ruled that Wyoming must cut off irrigation to lands with water rights established after 1950 if Montana lands with pre-1950 rights aren’t getting fully irrigated. Wyoming officials, however, say most Wyoming water rights on the river are older than that and won’t be affected.

Jeff Wechsler, a special assistant Montana attorney general, said Thursday that Montana takes the position it has a pre-1950 water right to fill the reservoir, which he said holds more than 70,000 acre feet. An acre foot is about 325,000 gallons.

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