Montana v. Wyoming and North Dakota – Oral Argument – January 10, 2011

Media for Montana v. Wyoming and North Dakota

Audio Transcription for Opinion Announcement – May 02, 2011 in Montana v. Wyoming and North Dakota

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John G. Roberts, Jr.:

We will now hear argument next this morning in case 137 on our original docket, Montana v. Wyoming and North Dakota.

General Bullock.

Steve Bullock:

Mr. Chief Justice, and may it please the Court:

The Tongue and Powder Rivers are the only significant water supply in a 10,000 square mile area in Montana and Wyoming, and this Court is being asked to decide whether the compact allows Wyoming to take the return flows that Montana farmers in that area have always relied on or, instead, affords protection to both States.

Our exception should be sustained for three reasons.

First, the plain language of the compact preserves the water supply each State was receiving as of 1950.

Second, contrary to the compact’s purposes, the master’s interpretation would allow individual water users to alter those amounts.

And third, the master’s policy determinations about efficiency add ambiguity to the principles underlying a century of western water law.

On that–

Ruth Bader Ginsburg:

General Bullock, would you please point to the precise language of the compact that freezes consumption, as distinguished from the amount of water diverted, which freezes consumption as of January 1st, 1950?

Steve Bullock:

–Yes, Your Honor.

In the compact it’s at the appendix of the master’s first interim report.

Two areas: first, the preamble provides for an equitable division/apportionment of the water; and then the operative provision, article V(A), states that the uses existing as of January 1st, 1950, in each signatory State shall continue to be enjoyed.

Ruth Bader Ginsburg:

Well, the uses existing is irrigation.

Steve Bullock:

Um–

Ruth Bader Ginsburg:

I don’t see where it says, and so I can understand, the amount of water diverted can’t be increased.

Steve Bullock:

–Your Honor, the whole of Article V(A) and V(B) — I mean, no one contests that it’s a full allocation of the water.

So V(B) is water after 1950.

V(A) is prior.

And in order for the status quo to be — remain — for the appropriative rights to beneficial uses existing in Montana as of 1950, there needs to be a water supply.

And also operative to that, it’s within the definitions at article II(A) to the beneficial use.

And that’s a derivation or departure from the general prior appropriation law, because it’s that use by which a water supply is depleted when–

Anthony M. Kennedy:

But why doesn’t the language in Article V(A) — and this is not too helpful — simply restate the issue before us, what is a beneficial use by the upstream owner?

Steve Bullock:

–Well, Your Honor, it need not because in article II(H) it defines what a beneficial use is, and that’s that use by which the water supply of a basin is depleted.

And it’s that depletion that — as of 1950, so it wasn’t a full consumption of water in Wyoming, and that depletion is the return flow upon which Montanans rely.

Sonia Sotomayor:

That’s the essence of the argument before us.

The depletion was the amount of water that was taken from this water source to irrigate the crops.

The — the issue now before us is whether beneficial use means consumption or it means use, isn’t it?

I — you’re begging the question in my mind, because I don’t — what source do you have for the fact that a return flow is beneficial use?

Steve Bullock:

Your Honor, the return flow is the basis of Montana’s water right, so that the return flow under the compact isn’t actually beneficial use.

Sonia Sotomayor:

That’s not actually true.

Their water right was the beneficial use that your pre-1950 consumers used, meaning you had consumers who were irrigating their own crops who were doing other things with the water.

The rights protected are their pre-1950 uses.

You’re putting — you’re — you’re still equating consumption as — as being their use, but I don’t know where you get that equation from.

Steve Bullock:

The equation, Your Honor, that consumption is the same thing as–

Sonia Sotomayor:

As use.

Steve Bullock:

–as use?

Sonia Sotomayor:

Uh-huh.

Steve Bullock:

Well, we could go actually to the special master, who himself had stated that when exploring — I mean, the beneficial use reflects the historic consumptive use.

It’s from his own textbook.

It’s on page 82.

The Master says that a senior’s right is limited to the amount he originally beneficially applied and consumptively used; that is, the amount received at the point of use minus the runoff.

Sonia Sotomayor:

Could someone pre-1950 who irrigated crops change the crops?

Steve Bullock:

It’s — it’s an open question, Your Honor.

Yes, they certainly could, but not if it impacted a downstream appropriator, as per this compact.

Sonia Sotomayor:

How in the world do any States monitor that?

The change in crops, the change in irrigation methods, the change in anything that would cause a difference in return flow?

Let’s assume global warming in some form or another evaporated more water, and so some crop area did some solar heating that caused a greater evaporation.

Is that a breach of the compact?

So two questions embedded in there.

How does any State monitor that, the change in crops or change in irrigation methods?

And, second, how far does it go in terms of the pre-1950s right to use their water?

Steve Bullock:

To the first question, Your Honor, even as of 1950, the drafters recognized that this was a fully appropriated river; it had reached its maximum practical limit.

So each individual downstream knows how much water they should be getting.

I mean, we have 80 years of measurements on one of these rivers alone, and you could go online right now and find out what the flow is at the State line occurring as of this morning.

So a piece of it that this is something we have been doing for a long time in the West as far as knowing what water is in the river, where it is, and throughout, you know, downstream appropriation.

To the second question–

Anthony M. Kennedy:

But all that shows is — or might show in a particular case, is that the amount of water is reduced.

Now — then the question is have the senior appropriators or the upstream appropriators reduced it in a way that’s inconsistent or that’s an overuse of their beneficial rights, and you’re right — again right where we started from.

And then you have to regulate exactly how each irrigator is using the appropriative rights.

Steve Bullock:

–And, Your Honor, you don’t–

Anthony M. Kennedy:

So the — so the flows don’t necessarily answer the question.

Steve Bullock:

–Well, Your Honor, it’s ultimately up to each State to administer their rights and their water intrastate.

But this is a compact among sovereigns.

So what we need, what Montana needs, is to get that supply of water that it was receiving as of 1950.

John G. Roberts, Jr.:

But if you’ve — we’ve been talking about beneficial uses.

What the compact said — says is, appropriative rights to beneficial uses.

And to me that suggests, which I always understood to be the way water law worked in the West, is you have a right to pull out water, and the appropriative right is you have the right to take out however much you were taking out, and the fact that less comes back, that’s something different.

That doesn’t affect your appropriation.

Steve Bullock:

Your Honor, even at the time of the compact, Wyoming recognized their paper rights, that appropriative right, was much more than the actual use occurring.

So you can’t read beneficial use out of — especially under this compact, but in any.

Even under the general common law, you only have an appropriative right for the beneficial use, and all along–

John G. Roberts, Jr.:

Well, isn’t that what’s going on here?

The beneficial use is the irrigation of crops.

They have an appropriative right to take out so much flow for that.

That’s all they’re doing.

They’re doing it now, just as they were back then.

They just use up more of it once they’ve taken it out.

Steve Bullock:

–Mr. Chief Justice, two things, the first of which, the beneficial use is — I mean, we can’t read this definition of beneficial use out of the contract or out of the compact — and it is a contract, actually, among States.

And also, though — second of which, though, that it’s also a fundamental tenet of prior appropriation law is the downstream irrigator takes, given the same conditions as when he first got his or her right.

Stephen G. Breyer:

Given the same conditions.

But is there any evidence, or can you say anything from the record or any other place, going back to 1950 — I assume in 1950 people knew how much the different landowners were taking out of the stream of the river in Wyoming to use for irrigation and other such purposes.

They knew that.

Is there any indication they knew at that time how much each individual landowner was putting back?

I think the answer is no.

But I would be very interested if it’s yes.

And I think it would help you a lot if it’s yes, because I’m — to tell you the truth, I’m pretty skeptical of the fact that they’re writing an appropriation right into this about regulating something they don’t even know about.

Steve Bullock:

Effectively, Your Honor, it could be yes.

Stephen G. Breyer:

Well, I didn’t say it could be yes.

I would like you to tell me if the answer is yes, and then of course I’m going to ask you where in the record I find something that says that they knew how much each individual landowner is putting back into this river in Wyoming.

Stephen G. Breyer:

And I think you can’t answer that question, can you?

Steve Bullock:

I certainly can’t answer that, and they didn’t need to know, from the perspective–

Stephen G. Breyer:

Oh, they didn’t?

In other words, they didn’t know how much is coming back, but you’re coming in and saying what they were — what they were regulating here is they’re saying, not only you get — you maintain a right to take out 100,000 units to do your irrigation, but you have to put back 80,000, but they didn’t even know what the number was, whether it was 80, 70, or 60, and the appropriation law is ambiguous?

I think — I think I can go that far with you to say it’s ambiguous, but I don’t see how I can go further.

I mean, that’s my basic question.

Did you see what it was?

Was I clear?

I’m saying, how can you read this treaty to require landowners to put back amounts into the river that they didn’t even know what they were?

Steve Bullock:

–First, Your Honor, the individual landowner does not have to put water back in that they didn’t even know what they were.

What they do need to do is make sure that the beneficial — the appropriative rights to beneficial uses existing in both States.

The Solicitor General pointed out that we don’t break up V A A and V(B) and put one group priority over the other, but existing as of 1950 in both States shall continue to be enjoyed.

So the only way that we can continue to enjoy the rights in Montana downstream is to ensure that we have the water supplies that we had–

Antonin Scalia:

So you say you get the same amount of water and it’s up to — it’s up to Wyoming to figure out who they have to cut down for not putting back enough to meet that amount?

You don’t care what private owner it comes from?

It’s up to Wyoming to figure out who has to be cut back?

Steve Bullock:

–Your Honor, I don’t say we–

Antonin Scalia:

I’m trying to help you.

Steve Bullock:

–Sorry?

Stephen G. Breyer:

Yes, I think that is what — the answer is yes, isn’t it?

Steve Bullock:

Yes, but — but, Your Honor, we don’t say the exact same quantity of water.

We say under like water supplies.

Antonin Scalia:

Under like water supplies, yes.

Steve Bullock:

Yes.

Could you tell me the — I didn’t get the page of the special master’s report which you asserted adopts your — your definition of beneficial use.

What page was it?

Anthony M. Kennedy:

I thought you referred us, just while you’re going through your notes, to page 82, and there’s an intriguing footnote where the special master talks about his own — his own book.

But that doesn’t seem to me to be conclusive on your point, because he’s saying the area is confused.

And his point it seems he brings up what the special — I’m taking over your answer to Justice Scalia’s question.

It is page 282.

Steve Bullock:

Footnote 15, yes, Your Honor.

Anthony M. Kennedy:

The footnote on that page, yes.

Steve Bullock:

And there he’s talking about–

Antonin Scalia:

It seems to say what you say it says.

Samuel A. Alito, Jr.:

If your understanding is correct, would the result be that landowners in Wyoming would only be allowed to consume as much as they consumed in 1950, but landowners in Montana could take advantage of improved irrigation techniques and use much more of the — they could divert the same amount of water, but they could use much more of it?

Steve Bullock:

–No, Your Honor, that would not be the case.

Samuel A. Alito, Jr.:

Why wouldn’t it?

Steve Bullock:

First, for the irrigators in Montana — I mean, one of the things — Montana sought to have a system of interstate administration.

Montana — or Wyoming, through storage, through curtailing consumption by post-’50 users, or otherwise can administer its water rights in however it so deems.

So ultimately, that’s a decision of the State of how it administers the water rights and the consumption of that amount that it has.

For Montana, we can’t increase consumption any more than the water that we would have received at that point.

So to the extent that Montana allows an individual irrigator to go to 100 percent of consumption of its water right, then in our system in Montana, we have to deal with what’s going to happen to the subsequent appropriator right downstream.

Ruth Bader Ginsburg:

And what happens under Montana law?

Steve Bullock:

Under Montana law, if there’s an injury, and that’s — that’s actually — and the special master pointed this out in another one of his footnotes, that that still would be actionable.

Like a change from flood irrigation to sprinkler irrigation, to the extent that it deprives a downstream user of waters that they’re relying on, that they could bring an action.

Antonin Scalia:

Yes, but your people can do that.

Your people can get more use out of the same amount of water diverted by going to sprinkler irrigation, whereas the people in Wyoming can’t.

That’s a little unfair, it seems to me.

Right?

Steve Bullock:

Both can, Your Honor.

That — that is — I guess that presumption is that we would have the water to use it, and Wyoming is actually getting a lot more production by consuming a lot more of the water within its right.

Antonin Scalia:

Your people are entitled to take out the same amount they took out before, right?

Pre-1950?

Steve Bullock:

Under like water supply conditions.

Antonin Scalia:

Whereas the people in Wyoming, you say, are not entitled to take out the same amount; they are entitled only net the same amount that they had before.

Whereas downstream your people can take out the same amount and whereas before 20 percent of it used to go back into the stream, they can now make use of that whole 20 percent through sprinkler irrigation, right?

It gives you a great advantage.

I mean, maybe that’s the way it was written, but — but don’t tell me that this is even-handed, because I don’t–

Steve Bullock:

Your Honor, I don’t think that it does give us a great advantage, because we still have to deal with the same amount of water supply that we would have had.

So at that point, if we switch to sprinkler irrigation, the first irrigator does that, there’s going to be a shortage downriver unless we make it up through additional storage or other causes.

Steve Bullock:

So–

Anthony M. Kennedy:

Do you have ultimate liability to Montana — pardon me, to North Dakota for overuse?

Steve Bullock:

–We do a little bit, Your Honor.

There’s the picture of the basin in the first appendix.

Anthony M. Kennedy:

Well, I won’t — I won’t get into that, but it does seem to me that the Chief Justice asked the question, if you’re entitled to take the water, you can use it for any purpose.

I — I — I take it the answer to that is it has to be a beneficial use, it has to be for approximately the same crop, but that brings us to this — to this gray area that the special master refers to on page 82 as confusing.

And I think, was it page 65 he talks about this is a confusing area of the law?

What is your best authority for your position?

What is the — do you have a case or a — a — a paragraph in a treatise that’s–

Steve Bullock:

Sure.

Yes, Your Honor.

In 1992 the Utah Supreme Court framed the question: This court’s called upon to determine the applicable law when the use of new technology–

Anthony M. Kennedy:

–The Utah case is your best case?

Steve Bullock:

–That’s — that’s the only case that any of the parties cited that actually deals with the change from sprinkler — or flood to sprinkler irrigation.

And what that said is if the return flow goes to the same river which it came from, that subsequent irrigators or downstream appropriators have the right to rely on that.

And I guess I would say that my second best case is the special master’s own footnote.

It’s 6912, where he says that, you know, even though State change procedures don’t typically apply to crop or — changes in crop irrigation techniques, this does not mean there’s no way to challenge increases in efficiency.

Downstream water users, for example, could sue to enjoin an upstream appropriator from increasing consumption or to force the upstream appropriator to replace lost runoff.

Antonin Scalia:

–I would think your best point is not all of that stuff, but simply the definition section, which very clearly makes a distinction between beneficial use and diversion.

And your point is that what is guaranteed is not the diversion right that existed pre-1950, but the beneficial use right, which is the net use of the water, not — not the total amount diverted.

If — if there were not both of those definitions, it seems to me it would be a little — your case would be a little harder.

But with the two of those definitions there and with V(A) using beneficial use rather than — it could have said diversion, appropriative right to diversion, but it didn’t say that.

It said to beneficial use.

Well, why — why define beneficial use that way if you don’t mean it?

That’s your best point, isn’t it?

Steve Bullock:

I — I — I agree, Your Honor.

[Laughter]

I was trying to — I believe Justice Kennedy asked for a case or a treatise, so that’s–

Antonin Scalia:

Well, all right.

Steve Bullock:

–But I agree that the plain language — and especially in an area where there’s so much ambiguities the special master acknowledges, why change the status quo of what was occurring?

Steve Bullock:

And that’s–

John G. Roberts, Jr.:

I don’t understand why that’s a good — good answer.

I mean, the beneficial use is that use by which the water supply is depleted.

Well, the use here is irrigation.

It doesn’t say irrigation up to the technological development in 1950.

They’re still taking out the same amount of water for that beneficial use.

They’re using it to irrigate.

And if they get better at it so they use more, well, that’s just too bad for you.

Steve Bullock:

–Your Honor, but they’re depleting more from the basin, and that’s — you can have beneficial use for non-consumptive purposes.

Stephen G. Breyer:

That’s back where — that’s where I was here.

See, I can’t get too far.

I mean, you have the word “depletion” in that definition.

I — I — that might help you.

But I’m thinking in accordance with the doctrine of appropriation, what does that doctrine, that legal doctrine, say about use and return?

That’s why we’re — we’re — why I was thinking it seems totally unclear.

It talks about seepage, the cases, which I gather is different from return.

Okay.

So could they have really meant net?

And what struck me is that they couldn’t, which — which you were beginning to address, too, is that they couldn’t have meant net because the water law at that time is unlikely to have meant net for the reason that they didn’t — you don’t know what’s coming back.

Do you see?

It’s not just — I see your point.

Your point is, well, Wyoming knew how much was going into Wyoming.

But that’s not my point.

My point is what — what’s the water law?

What’s the law of appropriation at that time in respect to return flows?

And if people didn’t measure return flows in general, I suspect in an ambiguous area they would have analogized it to seepage, which is what the — what the special master thought.

Steve Bullock:

Your Honor, the seepage cases, though, deal with adjoining landowners–

Stephen G. Breyer:

Yes, they–

Steve Bullock:

–not the same river flow, and the special master acknowledged that.

Stephen G. Breyer:

–Uh-huh.

Steve Bullock:

That — and I guess what I was earlier trying to explain is certainly each appropriator knows how much water it would — would be receiving, what the flows typically are, and they all basically judge on it.

But I guess if there is any ambiguity — and the law wasn’t necessarily clear as of 1950 on conversions from flood to sprinkler irrigation, but what we were trying to do is preserve those uses in both States existing as of January 1st, 1950, and we can’t do that without a water supply.

Other than the text, I think that the next place that one would look in interpreting the compact would be the legislative history.

And I think that the report to the Senate was real good in saying that — and this is part of — it’s appended to motion — Montana’s brief in response to the motion to dismiss the bill of complaint.

At 3a it says:

“It’s clear then that the demand of one State upon another for a supply different from that now obtaining under present conditions of supply and diversion is not contemplated, nor would such a demand have a legal standing. “

So what they were trying to do in 1950 was protect what each State was doing.

Antonin Scalia:

Where was that again, where at?

Steve Bullock:

That’s at 3a of the appendix, Montana’s motion — or the response to Wyoming’s motion to dismiss the bill of complaint.

Ruth Bader Ginsburg:

General, assume that you’re right, that what was guaranteed was the same amount of water flowing into Montana as in 1950, and I — I take it you don’t care how Wyoming deals with this, but what — if you’re right, what could Wyoming do?

It can’t tell the — the farmers, go back to the old way of irrigating or go back to a different crop?

Steve Bullock:

No — I mean, no, Justice Ginsburg.

Wyoming could choose to reduce groundwater pumping.

They could choose to curtail irrigation on post-1950.

They could choose to release storage.

I mean, they’ve — they’ve built, I think, 15 new reservoirs in Wyoming since the date of the compact.

They could choose to release water from that to fulfill those rights.

Ruth Bader Ginsburg:

So, you say it doesn’t — they don’t — Wyoming doesn’t have to know whether farmer A or farmer B is taking more than they took in 1950 — I mean, is using more than they used in 1950; they just have to know what the total amount is, and Wyoming can make that up?

Steve Bullock:

Yes, Your Honor.

Sonia Sotomayor:

So really — I’m sorry.

The issue is, are both of you — both of you have pre and post-1950 users?

Steve Bullock:

Yes, Your Honor.

Sonia Sotomayor:

All right.

And I — I guess this goes to the second question, which was sort of not really addressed.

The special master said, well, you could cut back your post-1950 users and satisfy all of the needs of your pre-1950 users.

Why isn’t that the answer?

Why isn’t that an answer that should be respected, because you can satisfy all of the pre-1950 needs that you have potentially?

Steve Bullock:

No, Your Honor, we can’t necessarily satisfy all the needs.

The drafters did say even as of 1950 that this basin reached its maximum practicable limit for irrigation, and that’s from the October — the last of the drafters meetings.

So — so, the water supply as of then, without additional storage, had already hit that limit.

Steve Bullock:

And ultimately what we need, though, is each State will administer intrastate, but we still should be able to rely on the ability to get a supply of water to meet those needs as of 1950 under like water supply conditions.

Sonia Sotomayor:

Before any 1950 use, post-1950 users are permitted?

Steve Bullock:

We’re still at the stage of discovery, but, yes, likely that’s how it would occur, Your Honor.

Sonia Sotomayor:

So why isn’t this a premature lawsuit?

Because I think really the essence of your claim is we need the pre-1950 water flow.

We don’t care who it comes from.

And what — all the special master said, in my mind, was the difference — you can’t look to what the pre-1950s were doing in this situation, but I haven’t addressed what the posts are going to do or have been doing and whether that’s right, and that’s depriving you of the water flow.

I don’t know if he answered that question: Are you in fact entitled to a minimum amount of water flow?

That’s really what should be the point of the issue, isn’t it?

Steve Bullock:

It is, or that quantity under like water supply conditions.

I don’t think it’s premature.

We have tried to administer this compact, actually made calls in 2004 and 2006; and as a result of not getting the water, knowing — believing we’re in a water-short time, that’s when we filed this action.

I would like to reserve my time if I may.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Michael.

Peter Kenneth Michael:

Mr. Chief Justice, and may it please the Court:

This Court has identified in previous questioning, this case at this point in this issue involves whether a Wyoming or a Montana diverter may change cropping patterns, may change various technologies in irrigated agriculture, and change up and down depending on the year and the fouling of the land and that sort of thing, the amount of water that is actually consumed by crops; and I think the Court has identified the critical fact that a water right, a classic western water right, appropriate right as in article V(A), is made up of the right to divert water at a head gate in an irrigation situation, put it on a defined quantity of land and use it for a purpose, irrigation, that’s defined by the State.

Wyoming has had such a — a system in place for many years, and controls those issues but does not and has not attempted to measure consumptive.

Anthony M. Kennedy:

But what is the controlling principle in answering the question that I think you properly put?

Could these irrigators switch to something like rice which absorbs a tremendous amount of water, or are they — when they switch crops it must be reasonably close to the earlier beneficial use?

What is — what is the standard that we look to, to answer that question?

Peter Kenneth Michael:

The standard is the standard of waste of practical irrigation.

Anthony M. Kennedy:

Standard of?

Peter Kenneth Michael:

Waste, of not wasting water in practical irrigation.

The irrigation right is a general right, and if rice were to double the amount of consumptive use by the crop, that would be permissible if the previous use had not been affected by an abandonment action, because the amount of water was being reasonably used for the former crop and the crop has changed.

So it’s not a question of — of percentage change.

Sonia Sotomayor:

I thought–

Peter Kenneth Michael:

It’s a question–

Anthony M. Kennedy:

Suppose the first — suppose the first crop absorbs 50 percent of the water and returns 50 percent by seepage.

The second crop that they switch to still absorbs just 50 percent of the water but because of the — of the pattern, the other 50 percent just evaporates?

Peter Kenneth Michael:

–The — the way that the water is — there’s — there’s a basket, Your Honor.

There’s a basket that starts with a quantity that’s taken at the head gate, 4 cubic feet per second put on the — on the field.

And within that quantity there — there is multiple — two components, basically.

The amount consumed by the crop — I should say the amount consumed by the crop or depleted by other elements, ditches, seepage, other types of things, deep percolation into the ground — and — and the other component which is water that’s not lost but can return or go somewhere.

It’s not evaporated, there’s no — transpiration.

So there’s just two components.

And if that — if that quantity, that division changes, that’s perfectly permissible within the use of the water right.

And the reason for that was set out in Wiel’s — Samuel Wiel’s text in 1911, carried forward in texts and cases ever since, that — and in the Binning case, a 1940 case in Wyoming; which is the water while it’s in the stream in the public common is — is not under the possession and control, the personal property control of the irrigator.

Antonin Scalia:

But we’re dealing here with a compact which has a text, and — and what the water law of Wyoming or of Montana happened to be cannot overrule the text, and I am — I’m hung up on the fact that article V(A) says appropriated rights to the beneficial uses of the water of the Yellowstone River System existing as of January 1, 1950: appropriated rights not to diversion, not to diversion for beneficial uses, but appropriated rights to the beneficial uses, which is defined — which is defined in the compact to say that use by which the water supply of a drainage basin is depleted when usefully employed.

And it could have said diversion, but it didn’t say that, and I notice that the government’s brief uses — seems to use the words interchangeably, depletion and diversion.

They’re not interchangeable.

They’re defined quite separately in this thing; and besides which I find it implausible that Montana signed on to,

“we don’t know how much water we’re going to get, it depends, you know, upon how much stuff was — was flowing back before, but we’re not guaranteed that that will be flowing back again. “

You combine those two things, and I — I — what do you do about that definition?

Peter Kenneth Michael:

Your Honor, the definition has two components, the classic beneficial — the component that would come from a classic beneficial use definition, which is useful employment for activities of man, a beneficial purpose, which — a nonwasteful purpose, that’s a start.

Antonin Scalia:

That’s not how it’s defined.

Peter Kenneth Michael:

That’s — that’s the last portion, that’s the second part.

Antonin Scalia:

Well, that’s fine.

Peter Kenneth Michael:

The first part is use by which the water supply of a drainage basin is depleted.

And in the western United States a drainage basin, appropriated water is not all the water in the air and on the land and dropping from the sky; appropriated water is water confined in a water course.

The Binning case made that clear, until the water returned from the field into a water course it was not appropriable by the downstream user.

So this definition — by using the–

Anthony M. Kennedy:

Are you addressing the word depleted?

Peter Kenneth Michael:

–I’m addressing the word supply of the drainage basin; and then it is depleted.

Use by which the supply, the water supply of a drainage basin is depleted.

Anthony M. Kennedy:

Are you saying that “depleted” means only what’s withdrawn and it’s not calculated by — with reference to what is returned?

Peter Kenneth Michael:

That’s correct.

Stephen G. Breyer:

Obviously you’re saying — to read it with a different emphasis.

Justice Scalia read it with — beneficial use is that use by which the water supply of a drainage basin “is depleted” when usefully employed by the activities of man.

And you read it, by which the water supply of a drainage basin is depleted

Stephen G. Breyer:

“when usefully employed by the activities of man. “

so that it is a definition in respect to how you use it, not amount.

But if you emphasize the word depleted, it could be read as referring to amounts, and not quality of use, not nature.

Antonin Scalia:

Why don’t you emphasize both of them?

I’m willing to emphasize both, but you can’t write out the “depleted” out of the — how does your definition of depleted differ from — from diversion?

Peter Kenneth Michael:

If you had a–

Antonin Scalia:

Is the diversion for a beneficial use the same thing as a depletion?

Peter Kenneth Michael:

–May I give an example?

In a — in a river, the Tongue River, if there is a, if there is a water wheel — Montana allows water rights, 1912 case, Hennessy v. Featherman, allows a water right to push a water wheel.

That water flowing down the river does not, does not — is not diverted.

Nevertheless it — it would allow a water right.

This definition differentiates that.

In this definition under the compact, water that is diverted for agriculture that is diverted is a beneficial use, but there’s a small segment of — of what could be a legitimate water right that is excluded.

Antonin Scalia:

No, but I mean, to — to do that, the definition would have read the term beneficial use is defined to be that use by which the water — that use by which the water — that use “for which” the water supply of a drainage basin is diverted, for useful employment by the activities of man, and that’s not what it says.

To the contrary, it makes a clear distinction between depletion and the previous definition of diversion.

Peter Kenneth Michael:

I–

Antonin Scalia:

I was trying to give that stark difference some effect in the later sections of V(A).

Peter Kenneth Michael:

–Let me say this, Your Honor, if I might.

The — you will find in — in the compact, in article V(B), the use of both diversion and beneficial use.

Antonin Scalia:

Okay.

Peter Kenneth Michael:

And so we have two — those terms are both used.

And in V(B) the drafters made a distinction; they said direct diversions or storage would be covered by V(B), and then they said how diversions are counted.

Antonin Scalia:

Where — where — what part of V(B) are you talking about?

Peter Kenneth Michael:

I’m talking about at the bottom of V(B) where you’re talking about the three — the third-tier rights.

Antonin Scalia:

The point of measurement shall be below the last diversion?

Peter Kenneth Michael:

No, no, 5B.

In the first text, the first paragraph of 5B, towards the bottom, the text says:

“And the remainder of the unused and unappropriated water is allocated to each State for storage and direct diversions for beneficial use on new lands. “

Sonia Sotomayor:

–Excuse–

Antonin Scalia:

For — exactly.

Antonin Scalia:

I mean, there it talks about diversions for beneficial use and not depletion for beneficial use.

I mean, I think that’s something different.

Sonia Sotomayor:

–Counsel, could I — could you answer, do you see a difference?

Finish that, and then could I just clarify something from what you were just reading?

Peter Kenneth Michael:

I think there’s a difference in that the — in practical terms, the depletion — the depletion and the beneficial use definition, a diversion would be the only way to deplete that.

And that’s — that’s the point.

The only way to make it through a depletion–

Anthony M. Kennedy:

So once again, you’re saying that depletion is a calculation of what is taken without reference to what returns?

Peter Kenneth Michael:

–Yes, Your Honor.

Anthony M. Kennedy:

And your best authority for that is?

Peter Kenneth Michael:

The best authority, I think, is the Special Master’s discussion of this, that the only practical way water supply of the drainage basin would be — the quantities of water in the rivers themselves would be depleted would be through a diversion.

So there’s really no reason to make a distinction.

John G. Roberts, Jr.:

Just to follow up on Justice Kennedy’s point, because I think it’s important: So you were reading — when it says “is depleted”, you think all you have to show is that it’s less than when you started, and once that is shown, it is depleted.

Then you’re saying, but we can deplete as much as we want?

Peter Kenneth Michael:

Yes, depletion would be moving it from this glass of water, if that was the river, and it reduces the quantity of water in the river.

That would be a depletion.

John G. Roberts, Jr.:

And you don’t care how much?

You’re saying this is a beneficial use because it depletes some of the water, it takes some away, and once we have gotten over that hurdle, all bets are off and we can deplete as much as we want.

Peter Kenneth Michael:

Yes.

And of course–

John G. Roberts, Jr.:

Well, I guess to get back to the point, wouldn’t the normal word be “divert”?

Peter Kenneth Michael:

–It may well be, Your Honor.

There’s some problems with this definition.

It self-defines itself using “usefully” twice, so we have some drafting issues with this.

Sonia Sotomayor:

So could I go back to my question, which is twofold?

The first is, the solicitor general recommends that we defer the decision on remedies in this case, and Montana seems to agree.

Do you agree as well?

The second question presented.

Peter Kenneth Michael:

That has been deferred, is my understanding.

Sonia Sotomayor:

My problem with this is — and I think I need to understand what the fight is about here, or what the dispute is about — it really does seem to me that it is a question of remedies, not about whether you’re taking more water rights through irrigation or not.

Sonia Sotomayor:

If I understand this compact right, both of you are protected in your pre-1950 beneficial uses.

Each of you appear, under the terms of Article V, to be entitled to get enough water to fill those uses.

The next section, the one that you read earlier, lets you use things in the future for post-1950 uses, but only if the water supply’s protected pre-1950 beneficial uses have received all they’re entitled to.

Neither of you are entitled or — to take anything post-1950 until pre-1950 is protected.

That’s how I read Article V.

Am I reading it wrong?

Because it seems to me that the only time that we get into a dispute — and this is the part that I think your adversary may be right about, ultimately — is it’s not a consumptive compact, but it’s a use compact, and both of you are entitled to get a full — that’s what I’m reading Article V to say, to get enough water to satisfy the beneficial uses before anybody’s entitled to post-1950 water.

Tell me what in the language of Article V suggests something different than that understanding.

Peter Kenneth Michael:

I disagree — the language in Article V that disagrees with that is the very first few words, “appropriative rights”.

Appropriative rights do not guarantee that any water user or any group of water users will be satisfied.

1934 was a horrendously dry year in the basin, 50 percent — flows were 50 percent less than normal.

In those kinds of years, the river — the river dried up that year in parts of the river, so–

Sonia Sotomayor:

But this is not happening today, is it?

Peter Kenneth Michael:

–Oh, yes.

It happened in 2004.

Sonia Sotomayor:

All right, but that’s an isolated year.

In most years, are you putting water to post-1950 use — to post-1950 uses or not?

Have you been regularly putting water to post-1950 uses?

Peter Kenneth Michael:

Both States, at times.

Yes, last year, all post-1950 users got satisfied, very wide.

But the point is that only the appropriative rights, which is not a guarantee of a quantity of water.

So the first clause of the compact, Article V(A), does not establish a quantity of water, and there are many compacts that do this.

They establish a quantity of water.

Sonia Sotomayor:

I don’t disagree.

Peter Kenneth Michael:

Quite simply–

Sonia Sotomayor:

I don’t disagree, but as I read the Article, it says, you put all the water that’s available to pre-1950 appropriated uses.

You then go, as I read the second part of this article, to any water supplies that each State has until you fulfill those 1950 appropriated uses.

And then it apportions, between the two of you, post-1950 percentages of the excess water that you’re entitled to have.

Am I correct about that structure?

Peter Kenneth Michael:

–Yes, and on an ongoing basis.

Peter Kenneth Michael:

It’s not a quantity.

None of this is done in quantity.

Sonia Sotomayor:

Exactly.

Peter Kenneth Michael:

It’s all done in a system that’s dynamic.

Sonia Sotomayor:

But that’s why — I do understand the remedies were deferred, but to the extent that we were to rule that appropriated rights included the right to change irrigation methods or crops — we don’t have to reach crops, because that’s not at issue here — in the end, you’re only entitled to take the appropriated uses, including irrigation rights, that existed pre-1950.

Are they entitled to get as much water as necessary to satisfy their pre-1950 rights or not?

Peter Kenneth Michael:

No.

Sonia Sotomayor:

Before you can use post-1950 water?

Peter Kenneth Michael:

Yes.

Yes, before — when — on those particular dates.

On those particular dates, if there are pre-1950 rights in Montana that are not satisfied on that river and there’s post-1950 rights in Wyoming, the Special Master has ruled, contrary to Wyoming–

Sonia Sotomayor:

Why aren’t you taking more of the percentage that way of post-1950 waters?

The compact says, post-1950, you can take whatever percentage it was.

I’ve forgotten what percentage that might have been.

Peter Kenneth Michael:

–60 percent.

Sonia Sotomayor:

Whatever it was.

60 percent; they’re entitled to 40.

Does that mean you can take a hundred percent, because there happens to be more water that they can satisfy the pre-1950’s users with?

Why aren’t they entitled to their 40 percent of whatever that big basin is so they can give more water to post-1950 users, that they can exploit their full 40 percent?

Peter Kenneth Michael:

Your Honor, I’m not following, because there’s a distinction between each class of water.

Sonia Sotomayor:

Yes, I understand that.

Peter Kenneth Michael:

And in your — in your question, I’m not following which class you are referring to.

Sonia Sotomayor:

I’m answering this only — I’m asking this because I know we’ve deferred decision on the remedy, but for me that is so integral to the issue here because when they talk about being entitled to a water flow, I see that as being entitled to a pre-1950 satisfaction of water needs or beneficial uses before anybody gets 19 — post-1950 water.

And, so, I see the only issue before us, because remedies have been put aside, as to whether the beneficial use includes some percentage increase because of irrigation demands, but so what?

It just means it’s going to limit post-1950 users.

It’s not going to limit the rights of the pre-1950 users.

Everybody’s entitled to change their irrigation methods, everybody’s entitled to change their crops.

They appear not to be entitled to put the water to a new use, whatever — however that’s defined.

We don’t need to get there today, but I’m not sure how you’re entitled to post-1950 uses while they’re still not satisfied in 1950 use.

Peter Kenneth Michael:

We — Wyoming is not entitled on the same river to take post-1950 water when there is a pre-1950 use in Montana that’s not satisfied.

Peter Kenneth Michael:

The Special Master has held that.

Pre-1950’s–

Sonia Sotomayor:

The question is what?

Peter Kenneth Michael:

–He has — the Special — I’m sorry.

The Special Master has recommended that.

The Court actually has granted that.

John G. Roberts, Jr.:

Just before you sit down, I don’t know why you think we have deferred the remedy question?

It’s presented.

It’s been briefed.

I don’t know why you think we’ve deferred it.

Whether or not Montana has to take care of intrastate uses, that’s what I understand the remedy question to be.

You briefed it.

Peter Kenneth Michael:

Well, no, my understanding was the Court had simply sent it back to the Special Master for consideration, that’s all.

John G. Roberts, Jr.:

Well, thank you.

Thank you, counsel.

Peter Kenneth Michael:

Thank you.

John G. Roberts, Jr.:

Mr. Jay, maybe you can help clarify something.

The — the second question presented, which involves what Montana has to do before, that’s still before us, right?

William M. Jay:

Mr. Chief Justice–

John G. Roberts, Jr.:

I know you want us — you don’t want us to reach it, but it’s still before us.

William M. Jay:

–Mr. Chief Justice, and may it please the Court:

The Court entered an order stating that it would hold oral argument only on Montana’s first exception, and that the second exception would be recommitted to the Special Master.

So for that — for that reason the parties have addressed only the first exception in this argument today.

Sonia Sotomayor:

Could you — but your brief, before we entered that order, said the Special Master was right, that they have to satisfy their needs from pre — post-1950 users.

Why?

Aren’t they entitled to their 40 percent of how much excess water there may be after their pre-1950 users have been satisfied in full?

Doesn’t this compact say both of their pre-1950 users have to be satisfied first?

William M. Jay:

Both of their pre-1950 users have to be satisfied first, yes, we agree with that, so that no one in Wyoming is supposed to be taking post-1950 water until pre-1950 users in Montana are satisfied.

We agree with that.

The — the point on which — that the Court has sent back to the Special Master is what happens if pre-1950 users in Montana are not satisfied but they could be because Montana post-1950 users in Montana are also diverting water.

William M. Jay:

But what we think the — the question squarely before the Court here is whether the right to recapture water gained from increased efficiency is part of the pre-1950 appropriative right, and that matters when there’s not enough water in the river for both states to satisfy their pre-1950 appropriative rights.

Forget about post-1950’s, there’s not enough water.

Stephen G. Breyer:

And so on your theory in that situation where there isn’t enough for all the pre-1950 people, it’s Wyoming that gets all the water?

And on their theory, it’s surprising — surprise, surprise — it’s Montana that gets all the water?

[Laughter]

And there’s no way to read this contract — this compact so it’s share and share alike?

William M. Jay:

Both States have affirmatively rejected the idea of a middle ground like that, Justice Breyer–

Stephen G. Breyer:

There’s no fair way to decide this case?

William M. Jay:

–Well — well, Justice Breyer, we — we submit that enforcing the compact according what — what the States signed up for is–

Antonin Scalia:

Is fair.

William M. Jay:

–Precisely.

John G. Roberts, Jr.:

I thought that was the way appropriation law works in the west, I mean, the person who gets it, gets it?

[Laughter]

William M. Jay:

Provided they–

Antonin Scalia:

The person who doesn’t get it, gets it.

[Laughter]

John G. Roberts, Jr.:

Well, I mean, I don’t mean — isn’t that the difference between eastern water law and western water law?

In the east you try to allocate everything fairly so everyone is treated fairly, and I thought in the west, for reasons of efficiency, it’s first come first serve.

William M. Jay:

–And here the States decided not to do that on an interstate basis.

They said that — that all pre-1950 users would be on the same footing as between the States.

So that Montana cannot complain if — as long as Wyoming’s water users pre-1950 are not exceeding their pre-1950 right, Montana has no remedy and there is no breach.

They concede that on page 20 of that surreply.

Ruth Bader Ginsburg:

Mr. Jay, I thought that the Special Master, very important to him was the meaning of a appropriate — appropriative rights, and he said that the Wyoming law is just as you’ve described, that is, the farmer can use all that water; and he said Montana law is uncertain, but Wyoming law is not out of line with the general approach.

Suppose it had been a case, suppose Montana law, instead of being uncertain, was diametrically opposite Wyoming law, then what happens under this compact?

William M. Jay:

Under this compact, Justice Ginsburg, the appropriative rights existing in each signatory State as of January 1st, 1950 are water preserved and carried for by article V(A).

Each water user in — in each State has exactly the same rights that he had on January 1st, 1950.

Now, in Montana perhaps that might not include the right to recapture efficiencies; but we know, for example, that — that a Montana water user could divert more water per acre because Montana had a more generous concept of beneficial use for irrigation per acre than Wyoming did.

The compact simply carries forward all existing appropriative rights, and the drafters consciously rejected the idea that they should come up with some kind of interstate administration system putting the two States’ rights on equal footing.

They carried forward each element in the bundle of sticks that a rights holder had on January 1st, 1950, subject to the single override of the definition of beneficial use; and I would like to turn to that because Justice Scalia’s colloquy with Mr. Michael brought that out.

In article II(H) there’s a definition of beneficial use.

William M. Jay:

What the compact’s definition of beneficial use does is specify that nondepletive uses don’t count.

Hydropower is a classic example.

Hydropower in the main channel is something that one could get an appropriative right for under some western water law.

Anthony M. Kennedy:

Could you — and this is II–

William M. Jay:

II(H), which is on page A4 to the appendix to the special master’s report.

That’s the definition of beneficial use.

What it does not do is specify that depletion is the measure of beneficial use.

It says beneficial use is not the use to the extent that the water supply is depleted; it’s the use — it’s a use by which the water supply is depleted.

Because irrigation means water goes out and doesn’t come — and some of it doesn’t come back, irrigation is a depletive use.

It’s recognized by the compact.

Antonin Scalia:

Well, hydropower would — would not constitute a diversion.

William M. Jay:

But a mill race would, Justice Scalia.

A mill race takes water out of the river.

You turn the wheel of your grist mill with it, and then the water comes back to the river.

Antonin Scalia:

Well, but that — that’s a diversion.

William M. Jay:

Yes, that’s a diversion, but not a depletion.

Antonin Scalia:

It means the taking or removing of water when the water so taken or removed is not returned directly into the channel of the Yellowstone River.

So if you have a mill race, the water comes through the mill race, goes right back; it’s — it’s not even a diversion.

You don’t have to qualify as a beneficial use.

William M. Jay:

But the — the point, Justice Scalia, article V(A) doesn’t use diversion, and that — that’s precisely the point, it doesn’t use diversion; it uses — it uses beneficial use.

And any — any–

Antonin Scalia:

Why doesn’t it use diversion if it means what you say?

William M. Jay:

–Because they — it didn’t use diversion because it wasn’t quantifying them.

Where — what diversion is used in article V(B) because the diversion is–

Antonin Scalia:

Of course it’s quantified.

I mean the whole purpose is you can’t take any more than you were taking before.

It has to be quantified somehow.

William M. Jay:

–It’s not quantified in the sense — as Justice Breyer pointed out, no one — they didn’t write down, especially in Montana, because as the special master said on page 22, Montana didn’t have a centralized system of rights; they didn’t know exactly how much was being diverted in Montana.

They certainly didn’t know how much was being consumed or how much was being returned to the river.

Joint appendix 585 there’s a Federal Power Commission report that says that it is almost impossible to make an accurate determination of return flow.

William M. Jay:

So what — what the drafters did was they, for the pre-1950 rights, they said we’re not going to cap — quantify them at all, we’re going to grandfather them in, freeze them in place.

Stephen G. Breyer:

So your linguistic argument is they didn’t use the word diversion because they didn’t want to throw the mill race example into the definition; is that right?

William M. Jay:

My argument, Justice — my argument, Justice Breyer, is that they didn’t want mill races or hydropower to count.

Stephen G. Breyer:

They didn’t want mill races in the definition, so they didn’t purposely use diversion, that’s why they used the word depletion.

William M. Jay:

They used the word depletion, but they didn’t make the amount of depletion the measurement — that is the point.

Antonin Scalia:

A mill race is not a diversion.

Stephen G. Breyer:

Correct, and they wanted that.

William M. Jay:

A mill race is a diversion under the common understanding of that term, Justice Scalia.

It may–

Antonin Scalia:

Not under the definition.

William M. Jay:

–No, not under the special definition used for Article V(B), but–

John G. Roberts, Jr.:

You keep saying everybody gets the same beneficial use they had prior to 1950, but — even though that may mean they can’t do it.

In other words they may have a right to get 50 cubic whatever for irrigation, but there may not be any water there for them to use it because of the increased efficiencies upstream.

William M. Jay:

–That — that is true, Mr. Chief Justice, but that has always been the case under western water law that the appropriative right is a priority, that when it’s your turn and there’s enough water, you get to take the amount of water to which you have a right.

But it was clear in Wyoming on January 1st, 1950 that the appropriative right — so long as you took the same quantity from the river, you took it from the same point on the river, you put it to the same use, irrigation, on the same acreage — that you could then change crops, for example.

Anthony M. Kennedy:

–In II — in II(H), do you think beneficial use is hereby defined as — by which water supply is depleted — we’re looking at “depleted”.

Do you define depleted as what is taken without any reference to what is returned?

William M. Jay:

I — I think that that’s right.

I think I agree, Justice Kennedy, but it has to be a depletive use in the sense that some water — some water has to come out that doesn’t come back.

So it’s not — it’s not the same — the mill — a mill race is not a depletion, even though some water, some water comes out because it then — because it then comes back.

Anthony M. Kennedy:

Well, I mean, that — that’s the key to this case, I take it.

Wyoming is telling us that what goes back is irrelevant so long as what is taken is for a recognized beneficial use?

William M. Jay:

The reason it’s irrelevant, Justice Kennedy, is that — for two reasons.

Depletion is not the measure of beneficial use.

It’s a — it is a criterion for beneficial use.

The use has to be a depletive one; but it’s not the measure of the beneficial use.

And the second point, Montana seeks to equate consumption with depletion, and that’s just — that’s not correct, either.

We urge the Court to overrule the exception.

Thank you, Mr. Chief Justice.

John G. Roberts, Jr.:

Thank you, Mr. Jay.

John G. Roberts, Jr.:

General, you have two minutes left.

Steve Bullock:

Mr. Chief Justice, members of the Court:

Briefly, as Justice Scalia pointed out this is a compact, and it’s a compact between two different States, and Montana gave up things, a right of priority administration across State lines as a result of that.

Justice Breyer, as an issue of fairness, we don’t get all the water.

We only get water supply under like conditions.

We are now the downstream appropriator, so — but one example, if half the water is flowing now that it was, as of 1950, Montana may not get anything at that point, because just by the virtue of some say it’s “highology”, whoever is higher on the river gets to take first.

So we — we don’t get to fulfill our rights.

All we get is to ensure that given a like supply of water, that our rights shall continue to be enjoyed as it existed as of 1950.

Sonia Sotomayor:

How many years has there been not enough water to fill all pre-19 — forget about whether there was post-1950 use.

How many years are we talking about in which there has been not enough water to fill everybody’s?

Steve Bullock:

And — Your Honor, we have done no discovery at all.

This is still at the motion to dismiss the complaint.

That’s what the hydraulics and the engineers will ultimately determine.

We made calls in 2004 and 2006.

We said, wait a minute, we’re not getting enough water here, and we believe it’s the — the pre-1950 uses that are depleting that.

Will you give us water?

Ultimately why we’re here is to sort this out.

I guess, I would also point out that there was some discussion about an appropriative right is the right to use a quantity of water.

That makes sense other than if you’re in a compact, and Montana gets no water.

The Solicitor General even pointed out then in his brief at a footnote; he said well, what we might do, then, is that Montana could bring an equitable apportionment action for the pre-1950 water.

That highlights the, I think to me, the illogic of just focusing on the rights and not looking at the uses and how much each State was consuming, because at that point I’ll be right back here saying we want the same water under like conditions that we had in 1950.

Thank you, Your Honor.

John G. Roberts, Jr.:

Thank you, General, counsel.

The case is submitted.