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State of Montana v State of Wyoming

Case No. 137 (Sup. Ct., May 2, 2011)

Article V(A) of the Yellowstone River Compact ratified by Montana,Wyoming, and North Dakota provides: “Appropriative rights to the beneficial uses of the water of the Yellowstone River System existing in each signatory State as of January 1, 1950, shall continue to be en-joyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation.” 65 Stat. 666. Montana filed a bill of complaint, alleging that Wyoming breached Article V(A)by allowing its upstream pre-1950 water users to switch from flood to sprinkler irrigation, which increases crop consumption of water and decreases the volume of runoff and seepage returning to the river system. Thus, even if Wyoming’s pre-1950 users divert the same quantity of water as before, less water reaches downstream users in Montana. Concluding that the Compact permits more efficient irrigation systems so long as the conserved water is used to irrigate the same acreage watered in 1950, the Special Master found that Montana’s increased-efficiency allegation failed to state a claim. Montana has filed an exception.

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)
Samuel Alito
Ruth Bader Ginsburg
Stephen Breyer
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

 

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january 1, 1950, continue to do so. id., at 26. both states' positions here. but it is not this court's role to guide the 8 montana v. wyoming master that this argument also fails. 1 8 colorado has a relatively unique doctrine of recapture. see hoese, propriators do acquire rights to the stream basically as it exists when and unappropriated water" of various tributaries to each thomas, j., delivered the opinion of the court, in which roberts, ers may "legally increase the quantity of water consumed tion and use of water under the doctrine of appropriation." ing consumed in 1950. pp. 1619. to any case on all fours with this one. indeed, "[n]o west montana makes two basic arguments: that background harm other appropriators, a change in irrigation methods changes. but it has not provided a single example from wanted to break from (what it considers) the common law, beneficial use in the compact is unremarkable. arti kinney, law of irrigation and water rights 586, pp. seepage and runoff and are simply different mechanisms for increas- puted; the dispute here is in its application. is a switch to 3 for purposes of resolving wyoming's motion to dismiss, we take as "the rule allowing recapture and reuse of salvaged compacts, e.g., the colorado river compact of 1922. pp. 1819. that corrections may be made before the preliminary print goes to press. amount of depletion, and thus any activity increasing wyoming's pre- of the tongue and powder rivers. bill of complaint 3, precisely the same concept more concisely. and the supra, at 505, 103 p. 2d, at 1072, and thus seem to be scalia, j., dissenting ern states 573 (1971) (hereinafter hutchins). provements where there are no formal changes in the see d. getches, water law in a nutshell 175 (4th ed. law' "). our decision is not intended to restrict the states' determina greater clarity is not so easy. following the court's advice appropriative right. under this doctrine, an appropriator u. s. 692, 711, n. 9 (2004). the compact's authors knew sought agreement as to the allocation of the yellowstone 846 p. 2d 1223, 1226 (utah 1992); comstock v. ramsay, 55 qualification, the basic doctrine that the original appro preliminary print of the united states reports. readers are requested to intent of the parties, here the signatory states. we thus look primarily the detriment of montana's pre-1950 water users? the runoff or seepage water would, if not recaptured, this court is not conclusive and hence not ipso facto cor- priation right because the water had already escaped from that increases pre-1950 water users' depletions in wyo the compact's definition of "beneficial use." is wasted, no other appropriator can complain"). 913 (1936) (per curiam); 1 hutchins 377378; st. onge v. the motion to him. 555 u. s. __ (2008). after briefing and 1 w. hutchins, water rights laws in the nineteen west his water that it is all consumed in transpiration and ers effectively recapture water. the sprinklers reduce loss from true montana's allegation that the new sprinkler systems actually by other provisions of the compact. one would instead tion that the compact intends to break from the common efficient irrigation system, most or all of the water wyoming. see id., at 69. because each new appropriator before funding new water storage facilities, congress today's majority, article ii(h) speaks only to the types of detriment of montana's pre-1950 users. scalia, j., dissenting north dakota, where it joins the missouri river. several that had previously been returned to the stream cial use." see art. ii(g), id., at 665. but the compact's wyo. 451, 102 p. 2d 54 (1940), a man was diverting water mains on his property and reuse it for the same purpose legislatively favored and represented the predominant use an appropriator may claim through his beneficial use. but tially the same sort of depletive allocation with language nature of our inquiry and counsels caution. our original jurisdiction for example, the compact could have stated that it would priation doctrine"; answering a question which "`[n]o the court objects to my interpretation because the word 2 montana also raised an exception to the special master's finding court's best guess concerning "an unclear area of appro- ordinary appropriation principles, the rest of article v(a), which ex- "to the amount of water that is necessary to irrigate his propriating water for a number of new, post-1950 uses: water they divert from the yellowstone river and its scope of the original appropriative right includes such a public right of way. franks was the first to appropriate explain that "that use" must be a use that "deplete[s]" the consumption can even be increased by adding farm acreage, if that use only upon the land for which the water forming the l. rev. 464, 469 (1960)). the states have not directed us ive rights or is an improper enlargement of that right. although the me to have little force when the court cannot explain what were legislatively favored and represented the predominant use of tity of water as before, less water reaches montana. ac of changes that fall outside the no-injury rule as it exists the clear answer insofar as this compact is concerned: we acknowledge that "beneficial use" refers to a type of power generation, a nondepletive use. wyo. stat. ann. signatory state as of january 1, 1950, shall continue to be priation law as it stood in 1949, or whether it incorporates the evolution which it is taken." art. ii(g), 65 stat. 665. the modifying ways receive enough water to satisfy their pre-1950 needs. has filed an exception. priators of water on which they depend but it is al drastically redefine "beneficial use," this court would expect far more which expressly states that "the laws governing the acqui appropriator in wyoming can increase his water use effi justice kagan took no part in the consideration or seniority, its downstream pre-1950 users cannot stop article v(a) protects "[a]ppropriative rights to the bene the allegedly disfavored uses wyoming and the united shows that the doctrine of appropriation in wyoming and pose of use. thus, an appropriator may increase his consumption by supreme court of the united states water at all. 3cite as: 563 u. s. ____ (2011) tion." ide v. united states, 263 u. s. 497, 506 (1924) ordinary "[a]ppropriative rights to the beneficial uses of crease in consumption; and that even if they do, the terms makes perfect sense, of course, if "beneficial use" means all ered such changes permissible. it. see 2 kinney 803, at 14031404. accordingly, subject 1950 depletions beyond pre-1950 levels exceeds article v(a)'s scope. this interpretation, and only this interpretation, gives at 456457; estate of steed v. new escalante irrig. co., beneficial uses). second, and even more conclusively, volume of water diverted and "reasonably required" by his the court also wonders why, "if article v(a) were in- of that water as shall be necessary to provide supplemen is commonly known as wastage from surface run-off and percentage of unused and unappropriated water for "a through the years. see van tassel real estate & live law of return flows is an unclear area of appropriation doctrine, the mont. 535 (1872). and montana cites no case from either may switch to sprinkler irrigation. he found that the appropriated water] so long as he is able and willing to because i think the court's disposition disregards the of the compact amended those principles in montana's apply this basic doctrine without any qualification based on whether was part of the plan from the start, and diligently pursued through (2) the doctrine of recapture--which permits an appropriator supply. tributaries today than they did 60 years ago--that is to of 1950 "in accordance with the laws governing the ac- river's channel. with the special master.5 12 montana v. wyoming montana claims that its pre-1950 appropriators' rights are justice thomas delivered the opinion of the court. water law--reusing irrigation waste water on different 4 montana v. wyoming knowledge that this area of law is far from clear. see thompson, j. leshy, & r. adams, legal control of water complaint. we appointed a special master and referred find this to be persuasive evidence that the states consid the increased consumption interferes with its residents' users to improve their irrigation efficiency, even to the diverted for a beneficial use, or rather only the volume 17cite as: 563 u. s. ____ (2011) the no-injury rule in montana and wyoming, which generally con- 7 and in some narrowly defined circumstances, he retains this right 47; 65 stat. 663 (compact preamble) (noting that the 9cite as: 563 u. s. ____ (2011) development of state water regulation. see id., at 237 ("[i]t is the duty beneficial consumptive use in kansas, nebraska, and amount of water within the extent of their appropriation scalia, j., dissenting either state. instead, montana and wyoming cases typi "depleted" lacks the "clarity" necessary to "drastically reduce return flow to the rivers. wyoming has not conceded that this is for montana 2528. on this basis, montana asserts that seepage water from irrigation of his lands, he is entitled to compact: "diverted." see sosa v. alvarez-machain, 542 mont. 154, 176178, 122 p. 575, 583 (1912); quinn v. john completed). see hinderlider v. la plata river & cherry joyed in accordance with the laws governing the acquisition and use p. 2d, at 63; 77 wyo., at 100104, 307 p. 2d, at 601602; the return flow would re-enter the original stream or not. by using appropriator to continue the waste of water which benefits begins with "that use," and the words that follow merely the doctrine of appropriation allocates perpetual water provides that rights to water for irrigation are perfected appropriator is entitled to the "exclusive control [of his 13cite as: 563 u. s. ____ (2011) ues to evolve, and there are reasonable policy arguments in favor of improvements to irrigation systems seem to be the sort on water law has observed: report 60. or it could have defined "beneficial use" as the use that depletes the water supply. this view is supported by the justice scalia, dissenting. over cases between states brings us this dispute between montana and ing the volume of water available to crops without changing the omitted)); see also 1 s. wiel, water rights in the western cerns changes in the location of the diversion and the place or pur- detriment of downstream appropriators. we readily ac court explained that the man could not "secure a perma "beneficial use" requirement does most of the legal work. system. thus, even if wyoming's pre-1950 users divert the same 1950 levels. thus, it holds, montana cannot complain that return flow is within wyoming's pre-1950 users' existing appropriat- plish that simple goal, if it was not already accomplished sprinklers instead of flood irrigation, wyoming's pre-1950 water us- text of the compact, i respectfully dissent. dams, water wheels and mill races, which, when they others are not thereby injured" (internal quotation marks hydroelectric generation, water wheels, and mill races-- montana has not identified any scholars who have reached pact, article v(b) unambiguously apportions the third tier opinion of the court opinion of the court farmers to take official action before adjusting irrigation over, if the compact effected a dramatic reframing of compact recognizes "the great importance of water for [water] . . . existing in each signatory state as of january starting with the first person to divert water from a natural stream being consumed. for instance, if a water user is con the former. if the senior appropriator, through scientific comment, recapture of reclamation project ground water, 53 cal. "place of diversion, or place or purpose of use," quigley, ------------ even if background principles of appropriation law do not upon which seepage or waste water rises has the right to 65 stat. 665668; and the compact defines them in the define the rights of pre-1950 water users along the yel- ing its pre-1950 water users to increase their irrigation changing to a more water-intensive crop so long as he makes no land by making a reasonable use of the water." 1 c. if the compact's definition of "beneficial use" were the years. irrigation system improvements seem to be the same sort stream. amount of depletion. according to montana, any activity * * * water is still seeping and running off one's own land, the "efficiency" of irrigation for our purposes refers to the amount of appropriation has governed water rights in montana and minus the volume that flows (or seeps) back into the percentage: wyoming receives 60% of the remaining water art. ii(h), 65 stat. 665, which confer appropriative rights. wyoming's pre-1950 water users--diverting the same which of the two it means has never arisen. i find it quite tion, a depletive use, over power generation, a nondepletive use. it water per year for "the exclusive beneficial consumptive state of montana, plaintiff v. state of right to increase their consumption so long as they do not colorado's opposite rule). which an appropriator acquires rights is the entire volume favor. the special master rejected these arguments, and caution"; into a field (state water law) where the answer of pp. 1617. the provision makes no sense. it would allocate a fixed 6 mont. code ann. 89803 (1947); wyo. stat. ann. 71401 (1945) ture water. the sprinklers, by reducing loss due to seep in the tongue river, and 42% in the powder river; the the same land so that less waste and seepage would oc extraordinary that the court should expend such heroic is an unclear area of appropriation doctrine. report 65 would make nonsense of article v(b) of the compact. 6 montana v. wyoming of diversion: "the taking or removing of water from the priative rights to the net volume of water that was actu filed a first interim report determining, as relevant here, shrink accordingly. we resolve the matter of montana's exception ployed by the activities of man." 65 stat. 665. montana this case arises out of a dispute between montana and the doctrine of recapture also supports treating im sonable beneficial use in the law of surface streams, 12 the better right"). the scope of the right is limited by the have expected the compact simply to exclude the disfa- scalia, j., dissenting ington, d. c. 20543, of any typographical or other formal errors, in order is this exception that is before us.2 "volume by which the water supply . . . is depleted." more ------------ thus it makes sense for the compact to protect irrigation uses that several reasons to conclude that wyoming's pre-1950 users second, article v(b) allocates to each state the "quantity tive of the word "deplete." it is in my view a clear indica- lowed since it is technically within the terms of the change so long as no additional water is diverted from the cial use" restricts the scope of protected pre-1950 appro if wyoming's pre-1950 water users divert the same quan neither required farmers to take official action before adjusting irri- rule, however superior it may appear from the viewpoint of `general back to the top of the field or installing a sprinkler system, may lawfully consume all of the water. tr. of oral arg. us to principles of appropriation doctrine, we find ourselves immersed 5cite as: 563 u. s. ____ (2011) from enlarging their rights to the junior users' detriment. is entitled. for purposes of the compact, wyoming may ers from enlarging their rights to the junior users' detriment. here, of yellowstone river system water by percentage. 65 stat. 170, 179, 271 p. 2d 449, 455 (1954) (assuming that farm even after the water leaves his property. see 1 wiel 3840, at 3743. might be consumed. this can deprive other appro nearby river. id., at 102104, 307 p. 2d, at 602. the court (3) if article v(a) were intended to guarantee montana a set blakely, 76 mont. 1, 2224, 245 p. 532, 539 (1926). which they actually apply to some beneficial use." 2 fuss' property. the court said that the "owner of land rights of the original appropriator to recapture water in wyoming and montana, the doctrine of recapture and special master and overrule montana's exception to that efforts (imagine how many cases had to be read!) answer- syllabus across his property from the big horn canal toward a decreases the volume of runoff and seepage returning to the river "beneficial use" that refers to depletion--"that use by p. 2d 593, 601 (1957). ("would the fact that my pump has for years dripped the court's analysis substitutes its none-too-confident storage, that prevent adequate water from reaching mon serv. co. v. long, 160 ariz. 429, 437438, 773 p. 2d 988, lowstone river compact (compact), see act of oct. 30, notify the reporter of decisions, supreme court of the united states, wash *the dictionary-approved term is "wyomingite," which is also the held that bower could appropriate water as it seeped defined by net water consumption." ibid. before making 1950 appropriators in wyoming have increased their owner of the right to use the water--his private property irrigating new acreage; building new storage facilities; (1981) (concluding that in wyoming, "a prior appropriator such increases to the detriment of montana's pre-1950 5cite as: 563 u. s. ____ (2011) in response, wyoming filed a motion to dismiss the priator may freely recapture his used water while it re amount of diversion. pp. 1015. see united states v. detroit timber & lumber co., 200 u. s. 321, 337. runoff and seepage that returns to the tongue and powder ming has breached article v(a) of the compact by allow ate solution." report 15. we recommitted this exception to the special even be increased by adding farm acreage, so long as that underlying water rights"). like the special master, we because article v(a) of the compact protects back to the same stream--especially in utah and colorado quantity of water, it could have done so plainly, as done in other gation methods. cases in both states frequently describe the no- 2011 as they did in 1950--that whatever would have sion, or place or purpose of use, may be changed only if wyoming's motion, because at least some of montana's montana v. wyoming et al. stream, 12 wyo. l. j. 47, 48 (1957). montana argues that, regardless of the statutes, private (water rights "cannot be detached from the lands, place or purpose for as is typical west of the 100th meridian, the doctrine of opinion of the court return flows," ante, at 7, but it can more accurately be tended to guarantee montana a set quantity of water," it pacts "that do just that." ante, at 18. this is a straw man. similar to junior appropriators. as between the states, volume of water by which the water supply is depleted." it by curtailing its post-1950 uses without "prejudic[ing] montana's other joined. scalia, j., filed a dissenting opinion. kagan, j., took no part in lowstone river and its tributaries. article v(a) promises follow from the text and would drastically redefine the the specific conclusions of water law scholars all point in rivers by 25% or more.3 see montana's exception and scalia, j., dissenting change in acreage irrigated or amount of water diverted. ordinary, 2 montana v. wyoming 666. the notion that article v(a) accomplishes essen- name of a type of lava, see webster's new international dictionary 1cite as: 563 u. s. ____ (2011) [may 2, 2011] rights to the beneficial uses of [water] . . . existing in each water put to "[b]eneficial use is not what is actually con protect the full scope of ordinary appropriative rights. from binning's property. although the court found that tion on existing acreage to the detriment of downstream excluded, much like crop changes or day-to-day irrigation [may 2, 2011] 1 montana has since clarified that increased consumption on existing opinion of the court l. rev. 541, 544, n. 18 (1965) (noting the general doctrine of recapture, water to which they are entitled. the special master has to a beneficial use (or to begin such a project, if diligently tion--the first and only time the compact uses any deriva- lawsuits could be brought to challenge such efficiency kota. in 1932, congress granted the states permission to montana 23; brief for united states as amicus curiae 12. was drafted. at that time, wyoming had a statutory of the yellowstone river system. see tr. of oral arg. 45 suming crops" and adding that "it would be difficult to contends that "beneficial use" is thus defined as the the same direction, which also comports with the special 936. as the rivers came into heavy use for irrigation, it tiers of priority. first, article v(a) provides: "appropria 4 montana v. wyoming 495, 505, 103 p. 2d 1067, 1072 (1940) ("[p]lace of diver that my pump must go on leaking?"). consumption can propriator's claim, see ide v. united states, 263 u. s. 497, cite as: 563 u. s. ____ (2011) 7 130.10 (2010). at common law, an appropriator claims the enjoyed in accordance with the laws governing the acquisi tion" control, would make little sense. changes--and the absence of any litigation over the sort of change at age for the same agricultural purpose as before. we agree resources planning bd., water resources comm., inter of changes. this view is consistent with the fact that by 1950 both 11cite as: 563 u. s. ____ (2011) code ann. 89803 (1947); wyo. stat. ann. 413104 does not preclude more efficient uses merely because a syllabus found that "article v of the compact protects pre-1950 syllabus be depleted below an aggregate of 75,000,000 acre feet for appropriative right. court has explained that "the general rule . . . is that the nent right to continue to receive the water" because to the doctrine of appropriation in wyoming and montana, but, like the is entitled to the stream as it exists when he finds it, the the volume diverted or the volume depleted--and the state water compacts, 17851941, p. 8 (1942). see also runoff and seepage before it escapes his control or his property--also return to the same stream from which it was originally can at anytime, utilize irrigation methods that are totally tion "beneficial use" not only defines the types of uses that drastically redefine the term. the amount of water put to "beneficial support its position, article v(a) of the compact does not arg. 13, 16, 24. in dry years, that may mean some mon- incorporated into the compact, do not allow such an in (1933); see also a. stone, montana water law 66 (1994) in fact, montana and wyoming appear to apply, without mont. laws p. 131, 3. stock co. v. cheyenne, 49 wyo. 333, 357359, 54 p. 2d 906, supreme court of the united states montana's reading of the compact, by contrast, does not on exception to the report of the special master wiel 481, at 509; see also trelease, the concept of rea place or purpose of use. quigley v. mcintosh, 110 mont. amount of water put to "beneficial use" has never been filed a bill of complaint, alleging that wyoming breached article v(a) stone river compact. see u. s. const., art. iii, 2, cl. 2; 28 u. s. c. which the water supply . . . is depleted"--is fairly clear. it so do we. the wyoming and montana doctrine of recapture (1) "beneficial use" is "that use by which the water supply of a later available for downstream users. a more efficient irrigation divert water from the yellowstone or its tributaries, "re- 996997 (1989) ("no appropriator can compel any other tana's increased-efficiency allegation failed to state a claim. montana water diversions in wyoming, whether for direct use or for appropriator's] rights, he may justly complain." 2 kinney held: because article v(a) of the compact incorporates the ordinary first, although the no-injury rule prevents appropria appropriation in wyoming and montana allows appro person to divert water from a natural stream and apply it fact that by 1950 both states had statutes regulating look at wyoming water law, 24 land & water l. rev. water of the yellowstone river system existing in each ibid. that is highly unlikely, for two reasons. first, rely- the consideration or decision of the case. united states v. tilley, 124 f. 2d 850, 858 (ca8 1941) (allowing recap broad. as the special master recognized, the "language of 18 montana v. wyoming clarity. moreover, if the compact effected a dramatic reframing of generally have procedures for overseeing changes in water ally being consumed in 1950. we agree with the special who has diverted water for irrigation purposes has the ciency by recovering runoff on his property or through plainly as other compacts that do just that. by 1950, it is so ordered. rect ("it is not this court's role to guide"); resulting in the ture by the original appropriator under nebraska law, and noting ordinary appropriation principles, the rest of article v(a), day-to-day operational changes or repairs also do not violate the rule. preserving the heaviest flows. see first interim report of despite the lack of clarity, the special master found decision of this case. master's rejection of its increased-efficiency allegation. it in the clarks fork river, 80% in the bighorn river, 40% ing on a subtle distinction between depletion and diversion 1950 users of their full water rights. cially not for reuse on other lands. priation," we begin with an overview of appropriation in each signatory state as of january 1, 1950, shall continue to be en- in irrigating their lands by changing to more water con while in his possession,--may collect it, recapture it, be lay claim only to its beneficial users' net consumption of ters," but only before the water escapes his land, and "for see also thompson, supra, at 76 ("[a] prior appropriator of water available to the crops without changing the which they are acquired" outside of specific exceptions); see also 1885 the runoff or seepage is heading. see 2 hutchins 580582 wyoming over the yellowstone river compact. montana the yellowstone river system. montana's reading, by contrast, would cerns changes in the location of the diversion and the use" of several upstream states, including wyoming. that u. s. 223, 236 (1940). we recognize that appropriation doctrine contin 19cite as: 563 u. s. ____ (2011) the wyoming supreme court . . . was expansive" in confer appropriative rights, but also determines the vol- drafted. at that time, wyoming had a statutory preference for irriga- practices and observing that the amount of water put to 951, 955 (wyo. 1979). the abundance of litigation over states, we also look to western water law more generally and authori 5 the lack of clarity in this area of water law highlights the sensitive and unappropriated water" of each tributary is divided by efficiency thus fails to state a claim. accordingly, mon downstream user may be injured." squillace, a critical ern state has ever answered--a question that would cross 3 ("priority of appropriation for beneficial uses shall give methods.6 see report 6970, 87; id., at 69 (they "do not ing montana's downstream pre-1950 appropriators of co. v. miller, 93 mont. 248, 268, 17 p. 2d 1074, 1080 conclusion. the right of recapture discussed in these authorities is 1, 1950." art. v(a), ibid. and the best evidence we have article v(a). ibid. third, "the remainder of the unused reuse these waters for his own benefit and need not return the water from the pit. the court upheld franks' appro made by [a senior] appropriator, which interferes with the depleted by the beneficial use. which is to say that "bene- 2 montana v. wyoming _________________ montana a set quantity of water, it could have done so as the court suggests that if the compact's authors original appropriative right. montana and wyoming cases appear to ties from before and after 1950. the states appear to have assumed 14 montana v. wyoming vored uses from the "usefu[l] . . . activities of man," use and noting that "the method of application, by flood special master correctly concluded that wyoming's pre-1950 users reading of the common law, see ante, at 78, and n. 5, for say, less of the diverted water ultimately finds its way their water rights. thus, when the rivers are low, mon issue here--strongly implies that irrigation efficiency improvements certain changes to water rights, but neither required (noting that, according to the "early cases," while "the of uses that qualify as beneficial and the volume of water ------------ fined in article ii(h) as "that use by which the water of its tributaries, including the clarks fork, tongue, ------------ cherry creek ditch co., 304 u. s. 92, 98 (1938). the but as montana concedes, precisely because of this equal "beneficial use" means a measure of the amount of water the big horn canal's right: "no appropriator can compel the compact assigned the same seniority level to all pre that the doctrine has not changed in a way directly relevant here. we does not appear to run afoul of that rule in montana and note: where it is feasible, a syllabus (headnote) will be released, as is a tal water supplies" for the pre-1950 uses protected by however. as they come online, appropriators acquire significantly limits the volume of water to which wyoming a beneficial use. see hinderlider v. la plata river & wyoming's upstream pre-1950 users from fully exercising included some measure of necessary loss such as runoff, for all of these reasons, we hold that the doctrine of of the doctrine over time, allowing compact-protected rights to grow or court posits. if it has in the past been assumed to refer to wyoming, and north dakota provides: "appropriative rights to the than flood irrigation, those water users effectively recap like the common law, this definition lays out the types 3 cf. mont. code ann. 852102(4) (2009) (listing types of nual flows, which are dictated largely by snow melt, vary man." id., at 665 (emphasis added). principles of appropriation law, to the extent they are master. 562 u. s. __ (2010). consumptive use and no waste water returns by seepage use that involves some depletion, as all irrigation does. junior appropriators are not completely without rights, 307, 331 (1989); see id., at 331, n. 156 ("for example, a 3cite as: 563 u. s. ____ (2011) prepared by the reporter of decisions for the convenience of the reader. act of oct. 30, 1951, 65 stat. 663. opinion of the court tana's first exception to the special master's first interim sprinkler irrigation, which increases crop consumption of water and rather than the word consistently used elsewhere in the negotiate a compact. see act of june 14, 1932, ch. 253, 47 need for appropriative rights) by the compact's definition in state water law. see n. 4, supra. our assessment of the scope of article v(a) of the yellowstone river compact ratified by montana, are simply different mechanisms for increasing the volume seepage was originally appropriated." id., at 20 (internal senior to any later appropriators' rights and may be fulfilled entirely of [federal courts] in every case to ascertain from all the available data _________________ drainage basin is depleted when usefully employed by the activities allowing this practice when it deprives montana's pre cle v(a) does not change the scope of the pre-1950 appro sition and use of water under the doctrine of appropria pp. 810. same quantity of water that was reaching montana as of quotation marks omitted). fuss thus had no superior 10 montana v. wyoming rights along a river, on a "first in time[,] . . . superior in authors chose to define beneficial use in terms of deple- such changes--and the absence of any litigation over the all because the equally senior users upstream in wyoming use" is one "by which the water supply of a drainage basin supreme court of the united states practices as long as montana's pre-1950 users' rights doctrine.4 as the special master explained, if "[a]p breached the compact by consuming more than its share state of montana, plaintiff v. state of alleges that wyoming has breached article v(a) of the dance with the laws governing the acquisition and use of uses that deplete the stream. rights, or is it an improper enlargement of that right to river system among wyoming, montana, and north da on exception to report of special master most of the special master's findings, and we have issued defined by net water consumption. the quantity of water meaning," ante, at 17. according to the court, "[t]he and apply it to a "beneficial use." once perfected, that water right is and adding that "[t]he colorado rule, however, is to the contrary"); wyoming itself had entered into at least one compact that within the rights which the law gives them, that is, to the supports treating irrigation efficiency improvements as within the binning, bower, and fuss, and "all appear to hold that an the court provides no plausible explanation for use of pressly states that "the laws governing the acquisition and use of wa- 3 ficial uses of . . . water." "beneficial use," in turn, is de concept of "beneficial use." that concept restricts a farmer which benefits the former." id., at 101, 307 p. 2d, at 601. law's focus on diversion. notice: this opinion is subject to formal revision before publication in the all water diverted from the stream rather than all water increase their net water consumption by improving the filled entirely before those junior appropriators get any became expedient to build water storage facilities for before the junior appropriators get any water. however, junior ap- i of water under the doctrine of appropriation." 65 stat. 666. montana this statement, the court has spent some 10 pages, ante, but if "beneficial use" in this last phrase means "the vol- beneficial uses of the water of the yellowstone river system existing beneficial use "is often considerably more than the quan priative rights that it protects in both states. amount of water put to `beneficial use' has never been back into the yellowstone. the court interprets the yel- 65 stat. 666. article ii(h) elaborates that a "beneficial same acreage watered in 1950, the special master found that mon- article v(a) of the compact states that "[a]ppropriative described as the question whether the volume of water to opinion of the court montana claims that the compact's definition of "benefi signatory state as of january 1, 1950, shall continue to be priator by a different method of irrigation can so utilize state for post-1950 "storage or direct diversions for benefi- montana, however, takes another tack. it argues that 803, at 1404. court's helpful drafting tip proves that speaking with have been written to protect the irrigation uses that were ming beyond pre-1950 levels exceeds the scope of the the right to use waste water before it re-enters the scalia, j., dissenting 1251(a). yet, because the compact references and the parties direct our conclusion is consistent with that of water law sentence immediately preceding the definition of "benefi- that "[a]ppropriative rights to the beneficial uses of the 2 montana v. wyoming it merely asks that its pre-1950 water users occupy the of what is state law." west v. american telephone & telegraph co., 311 being done in connection with this case, at the time the opinion is issued. sources 5:66, 5:685:69, pp. 5130.3, 5130.9 to 5 (2010). montana has filed an exception to the special tion of their respective appropriation doctrines. the compact's focus on whether a use depletes a river's binning "might find better ways of utilizing the water on bill of complaint against wyoming for breach of the com the law in montana is similar. the montana supreme importantly, the court noted that "[i]f the senior appro widely. in 1964, for example, the flow in the tongue and propriation law clearly proscribe[s] increases in consump priators' beneficial uses in 1950 if the river then had this applying water so as to increase his consumption to 60%"); montana allows appropriators to improve the efficiency of finally, if article v(a) were intended to guarantee january 1, 1950, shall continue to be enjoyed in accor the compact borrows the concept of appropriation to flow of the water to the material injury of [the junior opinion of the court question." report 65. gation systems so long as the conserved water is used to irrigate the water onto a neighbor's ground give him a right to say 71402 (1945). it makes sense that the compact would right" basis, wyoming v. colorado, 259 u. s. 419, 459 suming less than the permitted amount of water and 2009) (hereinafter getches). for instance, an appropriator found controlling, the idea that a water user may not opinion of the court cross into montana before joining the main stem of the _________________ net water consumption, we would expect far more clarity. 15. but the special master agreed with wyoming that of the compact, see arts. ii(g); v(b), (c); vii(a), (c), (d), 10071008 (2d ed. 1912) (hereinafter kinney) (internal wastewater that is lost, for example, to evaporation, seepage, runoff, or in february 2008, we granted montana leave to file a applied to his land is free to change his crop or method of volume put to one of the specified types of uses. the only uses." report 65. irrigation in the signatory states"). reduces the flow of water to montana's pre-1950 users. extent of wyoming's pre-1950 users' existing appropriative water for irrigation are perfected and enforced in order of seniority, as the special master observed, the law of return flows defined water rights in terms of depletion. the colorado thanks to improved irrigation techniques, wyoming's plants a more water-intensive crop or puts in a more were considered within the scope of the original appropriative right. so taken or removed is not returned directly into the ------------ apply it to beneficial uses, and such right extends to what therefore do not decide whether article v(a) intended to freeze appro tana to satisfy those pre-1950 appropriations." report 14 1cite as: 563 u. s. ____ (2011) other authorities draw no such exception based on where 2 is depleted when usefully employed by the activities of acreage irrigated or amount of water diverted. see id., at crop consumption of water and decrease the volume of ciency are within the original appropriative right of wyo yellowstone river compact, and congress consented to it. (asserting that, even in utah, "where the original appro of appropriation law, it allows wyoming's pre-1950 water which the water supply . . . is depleted." ante, at 18 (in- the no-injury rule junior users can prevent senior users wyoming and state of north dakota or percolation to the river, no other appropriator can pleted" to an inconsequential slip of the pen. according to the compact requires (subject to river conditions) that the 15cite as: 563 u. s. ____ (2011) compact, therefore, is a type of use that depletes the water opinion of the court montana's allegations regarding "efficiency improvements point of diversion, purpose of use, and place of use. see, measure of the amount of water depleted." ante, at 17. (3) this conclusion is consistent with the view of water law similarly, in bower v. big horn canal assn., the court evaporation, deep percolation, leakage, and seepage (re cording to montana, article v(a) prohibits wyoming from appropriation law principles do not support its position, article v(a)'s term "beneficial use" from its longstanding meaning. the tors from making certain water-right changes that would right--irrigation being a paradigmatic example, see prevent . . . such increased consumptive use"). ordinary, the man had a right to that water once binning's runoff appropriative rights to the net volume of water that was actually be- depleted. a "beneficial use" within the meaning of the ing, channeling, or sprinkling, is immaterial"); j. sax, b. that if montana can remedy the shortage of water to its pre-1950 users the word "depleted" instead of "diverted." its best effort unpersuasive. adjustments or repairs. this is also consistent with the tive rights to the beneficial uses of the water of the yellow (internal quotation marks omitted); see also arizona pub. opinion of the court we agree with the special master that the definition of e.g., maclay v. missoula irrig. dist., 90 mont. 344, 355 water on the original land can result in more water excluded from appropriative rights (and probably from any have conclusively answered.'" ante, at 78, and n. 5. the pp. 1516. argument, the special master recommended that we deny efficiency of their irrigation systems. the new systems, at 716, conducting a "sensitive . . . inquiry [that] counsels 20 montana v. wyoming year's flow, will also flow back this year. see tr. of oral opinion of the court the question is whether a switch to more efficient irrigation with less western state court [not even a lower court] appears to fornia, 298 u. s. 558, 565566 (1936); wyo. const., art. 8, water before it escapes his control or his property.7 an added, however, that bower's right was subject always to the highest court of each state, of course, remains "the final arbiter year; nor does it insist that its pre-1950 water users al- ternal quotation marks omitted). that objection seems to tanans will have to make do with less or go without. on the same land. for example, in binning v. miller, 55 (1977). accordingly, certain types of changes can occur simply because it otherwise would return to the original nondepletive uses do not confer appropriative rights. see opinion of the court who have perfected their own appropriative rights are farmer who traditionally consumes only 50% of the water cause in wyoming and montana that doctrine allows appropriators to eliminating all waste of water"). and a national hornbook syllabus the opposite conclusion. claim for relief. id., at 15. the states did not object to flows nearly 700 miles northeast into montana and then rights to the stream basically as it exists when they find river compact of 1922 apportioned 7,500,000 acre-feet of redefine the term `beneficial use' from its longstanding use, and place of use. the abundance of litigation over such 1950 water users in montana and wyoming. see brief for that montana's allegation fails to state a claim because runoff or evaporation. if the compact's definition were meant to opinion of the court ume of water by which . . . the water supply is depleted," would be one of the clumsiest ways imaginable to accom- tana's position. the doctrine of appropriation provides that rights to 16 montana v. wyoming 4 as with all contracts, we interpret the compact according to the ern state court appears to have conclusively answered the lands: a warning to get a new permit, fuss v. franks, what the state law is and apply it rather than to prescribe a different reuse his own wastewater while it is still on his property quantity of water as before, less water reaches downstream users in without prejudice to that issue. see report 3940. quantity of water for the same irrigation purpose and its broad reach in wyoming and montana case law, and montana's pre-1950 users can therefore "insist that resources 131 (4th ed. 2006) (discussing normal irrigation which their water flows. see 55 wyo., at 474477, 102 sense. pp. 1718. 183; east bench irrig. co. v. deseret irrig. co., 2 utah 2d can at anytime . . . instal[l] a sprinkler system, thereby quotation marks omitted); see also bailey v. tintinger, 45 "water supply." nothing in the language suggests that tum actually consumed"). ------------ compact specifically added that "[t]he states of the upper 19. "beneficially used" in irrigation, for example, has always wyoming about the meaning of their congressionally approved yellow meant to drastically redefine the term into shorthand for fore it leaves his possession." rock creek ditch & flume supply of a drainage basin is depleted when usefully em (1922), to those who divert its flow and apply the water to republican river compact (1943), kan. stat. ann. day-to-day operational changes or repairs also do not 505 (1924); a. tarlock, law of water rights and re- priators to improve their irrigation systems, even to the ming's pre-1950 water users. by using sprinklers rather 610 p. 2d 17 (wyo. 1980), 16 land & water l. rev. 71, 76 ter under the doctrine of appropriation" control, would make little the question, therefore, is whether article v(a) allows exception overruled. sumed, but what is actually necessary in good faith." 1 compact by allowing its pre-1950 water appropriators to stances existing in the signatory states when the compact colo. 244, 252258, 133 p. 1107, 11101111 (1913).8 but montana. concluding that the compact permits more efficient irri- court calls that hitherto unanswered question "the law of 2961 (2d ed. 1957). i believe the people of wyoming deserve better. use and reuse--capture and recapture--such waste wa cases. see deseret irrig. co., supra, at 180182, 271 p. 2d, appropriative rights that article v(a) protects. see brief (a) background appropriation law principles do not support mon- 82a518 (1997) (allocating water by the acre-foot for wyo. l. j. 1, 10 (1957) (listing irrigation as a beneficial to the fulfillment of all senior users' existing rights, under 51. states had statutes regulating certain changes to water rights, but more efficient irrigation systems are permissible under the no. 137, orig. deep percolation, necessarily incident to practical irriga thereby eliminating all waste of water"); jones, note, true. see wyoming's reply to montana's exception 35, n. 6. uses that confer appropriative rights. "nothing in the on exceptions to the report of the special master amount of diversion. binning, bower, and fuss expressly brief 3 (hereinafter brief for montana). as a result, even water was seeping from fuss' property and into a pit in a pre-1950 appropriative water rights. i disagree because that a beneficial user may not reuse water at all, even special master 6 (hereinafter report). pact. 552 u. s. 1175. montana alleged that wyoming had orders accordingly. see 562 u. s. __ (2010); 562 u. s. __ _________________ these water rights is merely a federal court's description of state law. priated." id., at 477, 102 p. 2d, at 63. in a later case, the tion. montana alleges that sprinkler systems increase return flows from other users. [wyoming] law, however, (b) also unpersuasive is montana's argument that, if background any other appropriator to continue the waste of water his right remained subject to binning's right "to use the colorado). and, even here in the yellowstone river com montana contends that this rule does not apply when opinion of the court 92 p. 2d 568, 570571 (1939). 912. according to montana's complaint, the compact supra, at 7. but the apparent scope of the no-injury rule general rule is that "if a change in these conditions is kinney 784, at 1366. that general proposition is undis the court reduces the compact's deliberate use of "de- "[a]ppropriative rights to the beneficial uses of [water]" as is the suggestion that the word was used to ensure that ing a state water-law question that no court of any west- report is overruled. opinion of the court water by improving their irrigation systems even if it right to the water that had left his property, and espe opinion of the court montana does not demand a precise volume of water each creek ditch co., 304 u. s. 92, 98 (1938); arizona v. cali- any period of ten consecutive years . . . ." national no. 137, orig. argued january 10, 2011--decided may 2, 2011 intended use. id., 5:655:66, at 5127, 5130.2; see priator retains possession and control of the waste and preference for irrigation, a type of depletive use, over clause seems specifically designed to exclude hydroelectric cannot write off as an accident the choice of this word phasis added)); getches 139145; woolman v. garringer, 1 (2) nothing in the compact's definition suggests such an inter- wyoming and state of north dakota injury rule as applying to changes in point of diversion, purpose of pretation. a plain reading indicates that "beneficial use" is a type of scholars who have considered the question presented in this case. opinion of the court taken." flowed back into the yellowstone after wyoming appro- 2 "depleted." that amount has always included a measure of necessary loss, e.g., this plain reading makes sense in light of the circum scholars who have considered the specific question pre for our purposes, montana's pre-1950 water users are no. 137, orig. 8. specifically, montana claimed that wyoming was ap system loses less water; thus, though it may draw the same volume of increase the volume of water they diverted beyond pre- they find it. under this no-injury rule, junior users may, subject to acreage as before 1950--to increase their consumption of and technical advances, can utilize his water so that none water from the river, net water consumption is increased. and seepage had become a natural stream, it noted that rights under the compact," then an intrastate remedy is "the appropri states offer up to explain the word "depleted"--are already stream appropriators, montana's increased-efficiency allegation fails may switch to sprinkler irrigation. pp. 416. ficial use" has never had the "longstanding meaning" the they should have defined beneficial use as the "volume by [wyoming's pre-1950 users] confine themselves strictly right to recapture and reuse his own runoff and seepage cite as: 563 u. s. ____ (2011) 3 (1) a change in irrigation methods does not appear to run afoul of meaning to the definition's use of the word "depleted." i senior to any later appropriators' rights and may be ful sented in this case. one scholar asserted: "[o]f course, 6 montana v. wyoming did not permit wyoming to use water for any of these deep percolation. some of the lost water returns to the river and is water, that is, the volume of water diverted from the river 1 original appropriation." getches 143144. report 81; see also id., at 7885; thompson, case note, in montana and wyoming. those changes are not to the use" has never been defined by net water consumption. in irrigation, stat. 306. draft compacts were produced in 1935, 1942, language of the compact makes that clear. 504, n. 2 (1945); and it "measure[s]" the extent of an ap- tana's downstream pre-1950 users might get no water at see report 61. the part of the compact's definition of work "depleted" is supposed to do other than indicate not "continu[ing] to be enjoyed" because upstream pre "beneficial use" definition nonetheless restricts the scope of pre-1950 state here in which a court has recognized, much less appropriations in montana from new surface and ground united states v. willow river power co., 324 u. s. 499, a rabbi's eyes--when the text in front of us provides tur[n it] directly into the channel . . . from which it is strongly suggests that improvements in irrigation effi water above mentioned for beneficial purposes upon the and enforced in order of seniority, starting with the first protect "only `the amount of water consumed for a benefi complain." ibid. wyoming since the 1800's. see, e.g., basey v. gallagher, yellowstone river. this river system's monthly and an opinion of the court states 498, p. 532 (3d ed. 1911) (hereinafter wiel); mont. drawn. there is some support for montana's position-- even though they may harm downstream appropriators. rule and were considered within the scope of the original yellowstone river or any tributary thereof when the water consumption by switching from flood to sprinkler irriga finally, in fuss v. franks, 610 p. 2d 17 (wyo. 1980), was part of the plan from the start, and diligently pursued wyoming from allowing its appropriators to make from its headwaters in wyoming, the yellowstone river cial use in each signatory state as of january 1, 1950.'" (citing trelease, reclamation water rights, 32 rocky mt. ii circumstances in the signatory states when the compact was water available to downstream users who may rely on of man." 65 stat. 665. montana contends that the term means the improve their irrigation systems, even to the detriment of down- amount of wastewater returned to the river, thus depriv montana alleges, employ sprinklers that reduce the land for which the seepage water was [originally] appro did not "d[o] so as plainly as other" interstate water com- division will not cause the flow of the river at lee ferry to quisition and use of water under the doctrine of appro stream appropriators. montana's allegation that wyo hydroelectric power generation and other disfavored, the syllabus constitutes no part of the opinion of the court but has been consumptive, such as pumping the collected waste water efficiencies stemming from crop shifts or irrigation im same position relative to wyoming's pre-1950 users in landowner is free to recapture and further use it"). increasing efficiency at one site may reduce the amount of to. those two words appear repeatedly in other provisions acreage refers to the use of more efficient irrigation systems. the the yellowstone river compact divides water into three it marks the types of uses that confer an appropriative we conclude that the plain terms of the compact protect language," it says, "suggests that `beneficial use' means a water-intensive crop so long as he makes no change in 610 p. 2d, at 20. water supply--not whether it diverts the river's flow-- enjoyed in accordance with the laws governing the acquisi- if article v(a) simply incorporates background principles b compact so long as the conserved water is used to irrigate who has diverted water for irrigation to recapture and reuse his own while it is still on his property, if it otherwise would flow this is incomprehensible. on the court's own interpreta- may increase his consumption by changing to a more quinn v. john whitaker ranch co., 54 wyo. 367, 377378, 20 wall. 670, 683 (1875). as relevant here, the doctrine opinion of the court ------------ farmers and cattlemen appear to consume more of the appropriators, the compact arguably would prohibit rest goes to montana. id., at 666667. sort of change at issue here--strongly implies that irriga c. j., and kennedy, ginsburg, breyer, alito, and sotomayor, jj., by allowing its upstream pre-1950 water users to switch from flood to that has a different and longstanding meaning is simply ume of water to which the rights attach--viz., only that stream and the conserved water is used on the same acre 357, 3 p. 2d 286, 291 (1931); thayer v. rawlins, 594 p. 2d the fulfillment of the senior users' existing rights, prevent senior us- but the no-injury rule is not absolute; it generally con opinion of the court violate the no-injury rule. see, e.g., 1 wiel 56, at 51 powder rivers was nearly 10 times the 1961 flow. app. to state a claim for breach of the compact under article v(a). pp. 4 them to the channel from which they were diverted" (em channel of the yellowstone river or of the tributary from cial use on new lands or for other purposes." 65 stat. 666. gardless of whether any of it returns to the stream). so, age and runoff, operate much like, if more efficiently than, 1951 montana, wyoming, and north dakota ratified the remained unfulfilled. id., at 3, 8. cruder recapture systems involving ditches or pits. they acknowledged that in such situations, lower appropriators used in irrigation, 11 wyo. l. j. 39 (1956); wille, note, powder, and bighorn rivers, also begin in wyoming and provements in irrigation efficiency as within the original cally describe the no-injury rule as applying to changes in depleted from the stream, that is only because the issue of conducting new groundwater pumping; and increasing con more efficient irrigation with less return flow within the and 1944, but none was fully agreed upon. finally, in stone river system existing in each signatory state as of master's exhaustive discussion and findings. accordingly, water under the doctrine of appropriation." id., at 666. nonetheless at the mercy of the property owners from 570571 (1939). once such a water right is perfected, it is how to use "diverted" and "diversion" when they wanted that provision allocates a fixed percentage "of the unused tion and use of water under the doctrine of appropriation." other means so long as the increased consumption is on by pre-1950 appropriators in wyoming" do not state a sumption on existing agricultural acreage.1 id., at 34, question before us is whether "beneficial use" measures allegations state a claim for relief. the special master 1951, ch. 629, 65 stat. 663, to grant those wyomans* the their irrigation systems, even to the detriment of down whitaker ranch co., 54 wyo. 367, 376380, 92 p. 2d 568, doctrine of appropriation without significant qualification, and be- from a creek fed largely by irrigation runoff and seepage 1(slip opinion) october term, 2010 cur." bower v. big horn canal assn., 77 wyo. 80, 101, 307 the same land to which the appropriative right attaches." tion efficiency improvements do not violate the no-injury the same acreage watered in 1950. we agree with the


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