- Associated Press - Tuesday, June 16, 2015

CHEYENNE, Wyo. (AP) - The U.S. Supreme Court could decide as soon as this fall how to proceed with the legal dispute between Wyoming and Montana over water rights on the Tongue River.

Jeff Wechsler, a special assistant Montana attorney general, said Tuesday he understands the court will consider the case at a conference in September. It could either direct a special master to hear more arguments from the states or enter a written order ending the case as it stands, he said.

Montana sued in 2007 claiming that Wyoming had been shorting water deliveries on the river for decades. It flows north before joining the Yellowstone River in Montana.

Both states have filed papers with the Supreme Court in recent weeks arguing how the court should respond to a report that a special master released in December.

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

In an earlier ruling, Thompson also shot down a major claim from Montana that had asserted Wyoming shouldn’t be allowed to take more water from the river through modern irrigation methods than it had when Congress approved an interstate compact spelling out the allocation of water between the states in the 1950s.

Wyoming filed papers last week urging the Supreme Court to accept Thompson’s most recent report. Wyoming is offering to pay Montana $36,000 to Montana to cover the market value plus interest of the water it failed to deliver.

Montana, however, is pressing the court to allow further hearings on the issue of how much water it’s entitled to store within the Tongue River Reservoir. Montana says the court should rule that it has a pre-1950 water right to fill the reservoir, which holds 72,500 acre feet, every year. An acre foot is about 325,000 gallons.

Montana is also pushing to stick Wyoming with an unspecified amount of legal fees and costs that would likely total millions of dollars on the grounds that Thompson found Wyoming had violated the terms of the interstate compact.

Thompson ruled in December that, going forward, 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.

Montana in April issued a call, or a claim based on water rights, on the river, forcing Wyoming officials to cut off irrigation to lands with post-1950 water rights. The call ended in May, when the Tongue River Reservoir was filled, but Montana officials have warned their Wyoming counterparts that another call is likely later this summer.

Wyoming State Engineer Pat Tyrrell had complained to Montana officials during the call this spring that although Montana was requiring Wyoming to cut off landowners with post-1950 rights, Montana wasn’t capturing those flows in the reservoir and was essentially wasting the water.

Tyrrell said Tuesday that responding to Montana’s call this spring resulted in an increase of only about 20 cubic feet per second. The river flow is currently around 2,000 cubic feet per second at the Tongue River Reservoir.

If Montana issues another call on the river this summer, Tyrrell said most post-1950 water rights in Wyoming will likely already have been cut off by Wyoming’s own intrastate regulation by that time of year.

Wechsler said Wyoming’s claims that Montana wasted water are not correct.

“Water was released from the Tongue River Reservoir for irrigation, to satisfy calls for contract water, and for operational reasons, all as allowed by the special master’s order,” Wechsler said.

“Montana is pleased that the favorable ruling from the special master has allowed it to receive its share of compact water,” he added. “But Wyoming’s complaint about wasting water highlights the need in our view of a final declaration by the Supreme Court.”

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