Held: Because Article V(A) of the Compact incorporates the ordinary doctrine of appropriation without significant qualification, and be-cause in Wyoming and Montana that doctrine allows appropriators to improve their irrigation systems, even to the detriment of down-stream appropriators, Montana’s increased-efficiency allegation fails to state a claim for breach of the Compact under Article V(A). Pp. 4–19.
(a) Background appropriation law principles do not support Montana’s position. The doctrine of appropriation provides that rights to water for irrigation are perfected and enforced in order of seniority, starting with the first person to divert water from a natural stream and apply it to a “beneficial use.” Once perfected, that water right is senior to any later appropriators’ rights and may be fulfilled entirely before the junior appropriators get any water. However, junior appropriators do acquire rights to the stream basically as it exists when they find it. Under this no-injury rule, junior users may, subject to the fulfillment of the senior users’ existing rights, prevent senior users from enlarging their rights to the junior users’ detriment. Here, the question is whether a switch to more efficient irrigation with less return flow is within Wyoming’s pre-1950 users’ existing appropriative rights or is an improper enlargement of that right. Although the law of return flows is an unclear area of appropriation doctrine, the Special Master correctly concluded that Wyoming’s pre-1950 users may switch to sprinkler irrigation. Pp. 4–16.
(1) A change in irrigation methods does not appear to run afoul of the no-injury rule in Montana and Wyoming, which generally concerns changes in the location of the diversion and the place or purpose of use. Thus, an appropriator may increase his consumption by changing to a more water-intensive crop so long as he makes no change in acreage irrigated or amount of water diverted. Ordinary, day-to-day operational changes or repairs also do not violate the rule. Consumption can even be increased by adding farm acreage, if that was part of the plan from the start, and diligently pursued through the years. Irrigation system improvements seem to be the same sort of changes. This view is consistent with the fact that by 1950 both States had statutes regulating certain changes to water rights, but neither required farmers to take official action before adjusting irrigation methods. Cases in both States frequently describe the no-injury rule as applying to changes in point of diversion, purpose of use, and place of use. The abundance of litigation over such changes—and the absence of any litigation over the sort of change at issue here—strongly implies that irrigation efficiency improvements were considered within the scope of the original appropriative right. Pp. 8–10.
Judge(s): Clarence Thomas
Jurisdiction: U.S. Supreme Court
Related Categories: Agriculture , Government / Politics , Property
|Supreme Court Judge(s)|
|Ruth Bader Ginsburg|