To The University of Wyoming:
The members of the Committee approve the Plan B thesis of Samuel King presented on April 9, 2019.
Dr. Jason Robison, Chairperson Dr. Jaqueline J. Shinker, Outside Member Temple Stoellinger, UW Faculty Dr. Jessica Western, UW Faculty
APPROVED:
King, Samuel J., Avoiding Controversy and Seeking Equity: Amending the Yellowstone River Compact in Furtherance of Its Dual Purposes, M.A. Haub School of
Environment and Natural Resources, May 2019.
The Yellowstone River Compact governing the interstate waters of the Yellowstone River and its tributaries was ratified in 1951 by Montana, Wyoming, and North Dakota. The Compact’s dual purposes are to achieve “equitable apportionment” of these waters and to “avoid present and future controversy.” However, the apportionment scheme in Article V of the Compact inequitably distributes risk between pre- and post-1950 water users and excludes settled tribal water rights, undermining these dual purposes, a problem compounded by recent drought. Unfortunately, climate change projections throughout the Yellowstone River Basin suggest that future relief from water shortage is unlikely. To address these challenges while upholding the Compact’s purposes, the Compact should be amended. This thesis first provides necessary context, explaining the western water doctrine of prior appropriation, existing tribal water rights in the Yellowstone River Basin, interstate water compacts generally, and covering the hydrologic scope and key provisions of the Yellowstone River Compact. Equitable challenges associated with administration of the Compact in light of projected hydrologic changes are then examined. In addition, a synopsis of Montana v. Wyoming is provided to demonstrate the dire consequences of inequitable water administration. Next, to better support equity in the Compact, amendments to the Compact’s key provisions are proposed, including subsuming pre-1950 appropriative rights within the Article V(B) percentage-based apportionment scheme, specifying settled tribal water rights within this apportionment scheme, and providing tribal representation on the Yellowstone River Compact Commission per Article III. Finally, a proposal detailing how amendment may occur is provided, addressing how stakeholders may recognize the urgency of a problem and work toward equitably reallocating the burden between resource users.
AVOIDING CONTROVERSY AND SEEKING EQUITY: AMENDING THE YELLOWSTONE RIVER COMPACT IN FURTHERANCE OF ITS DUAL PURPOSES
by Samuel J. King
A Plan B thesis submitted to the University of Wyoming in partial fulfillment of the requirements
for the degree of MASTER OF ARTS
in
ENVIRONMENT AND NATURAL RESOURCES
Laramie, Wyoming May 2019
i
ACKNOWLEDGEMENTS
Thank you to my Committee for your invaluable time, efforts, and feedback. Thank you to Chairperson Jason Robison for your enthusiasm, knowledge, thoughtfulness, and guidance. Thank you to the participants in this research: Patrick Tyrrell, Steve Wolff, Chris Brown, Mark Elison, Jason Whiteman, Cedric Black Eagle, and the Wind River Tribal Water Engineer’s Office. Thank you to the Yellowstone River. Thank you to my wife.
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Table of Contents
I.INTRODUCTION ...1
II.BACKGROUND ...4
A. Prior Appropriation ...5
B. Indian Reserved Rights and Basin Reservations ...6
1. Indian Reserved Rights Doctrine ...6
2. Settled Tribal Water Rights in the Yellowstone River Basin ...9
a. Crow Indian Reservation ...9
b. Northern Cheyenne Indian Reservation ... 11
c. Wind River Indian Reservation ... 13
C. Interstate Water Compacts ... 16
D. Yellowstone River Compact ... 19
1. Formation... 20
2. Hydrologic Scope ... 20
3. Purposes ... 22
4. Article V: Apportionment Scheme ... 23
a. V(A) ... 23
b. V(B) ... 24
5. Article VI: Tribal Water Rights ... 24
6. Article III: Compact Administration ... 25
7. Article XI: Power to Amend ... 26
III.EQUITY CHALLENGES ... 26
A. Climate Change in the Yellowstone River Basin ... 29
1. Historical Climate ... 29
2. Recent Climate Trends ... 31
a. Warming Temperatures ... 31
b. Reduced Snowpack and Early Spring Melt ... 34
3. Future Climate Predictions ... 35
a. Wyoming ... 36
b. Montana ... 39
B. Compact Deficiencies... 40
1. Article V: Inequitable Apportionment Scheme ... 41
a. V(A) ... 41
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2. Article VI: Uncertainty Surrounding Tribal Water Rights ... 45
3. Article III: No Tribal Commissioners ... 48
C. Learning from the Past: Montana v. Wyoming ... 49
1. Factors Precipitating Litigation ... 49
2. Procedural History... 50
IV.COMPACT AMENDMENT ... 53
A. The “What”: Amendment Proposals ... 54
1. Subsume Pre-1950 Appropriations in V(B) ... 56
2. Inclusion of Tribal Water Rights in V(B) ... 62
3. Tribal Representation on the Compact Commission... 65
B. The “How”: Incentivizing Stakeholders ... 69
1. Challenges Negotiating Common-Pool Resources ... 71
a. Reducing Resource Use ... 72
b. Scientific and Social Uncertainty ... 73
2. Catalysts for Change ... 75
a. Recognizing a Problem ... 76
b. Sustainable Solutions and Burden Allocation ... 78
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I.INTRODUCTION
“Climate change is no longer some far-off problem; it is happening here, it is happening now.”1
– President Barack Obama In the American West, water is the lifeblood of society. Throughout these vast, arid landscapes, riverbeds meander like human arteries and veins, carrying water like oxygen to many of these dry and dusty areas. One need not look any further than the Colorado River to witness the magnificent dependency western civilization has on this essential resource. Complete with water projects and storage facilities, spanning across seven states and two countries, nourishing some of the American West’s major cities like Los Angeles, Phoenix, Las Vegas, Denver, and Salt Lake, the Colorado River’s dependents serve as the grandest example of absolute reliance on a finite resource.2
Although not to the scale of the Colorado, the Yellowstone River and its tributaries similarly provide water to the states of Montana, Wyoming, and North Dakota, as well four Indian tribes—the Crow and Northern Cheyenne in eastern Montana, and the Northern Arapaho and Eastern Shoshone in Wyoming.3 Like the Colorado River system, the Yellowstone River also has its headwaters in Wyoming.4 What makes these Interior West river systems unique is their reliance primarily on high mountain snowpack for instream volume.5 This snowpack creates natural
1 Our 10 Favorite Climate Quotes by President Barack Obama in 2014, CLIMATE ACTION RESERVE,
http://www.climateactionreserve.org/blog/2015/01/20/our-10-favorite-climate-quotes-by-president-barack-obama-in-2014/ (last visited Jan. 30, 2019).
2 See generally Joe Gelt, Sharing Colorado River Water: History, Public Policy and the Colorado River
Compact, 10 WATER RESOURCES RESEARCH CENTER 1,2 (1997) (observing that “the compact grandly represents a central theme of western water; i.e., the allocation of scarce water resources among competing interests to ensure present and future growth and development.”).
3 See Yellowstone River Compact, Act of Oct. 30, 1951, Pub. L. No. 82-231, 65. Stat. 663; see also Crow
Tribe-Montana Compact, MONT.CODE ANN. § 85-20-901 (2017); Northern Cheyenne Tribe-Montana Water Rights Compact, MONT.CODE ANN. § 85-20-301 (2017); In re the General Adjudication of All Rights to Use Water in the Big Horn River System and All Other Sources, 753 P.2d 76, 84 (Wyo. 1988) (Big Horn I).
4 National Park Service, Yellowstone, Rivers, https://www.nps.gov/yell/learn/nature/water.htm (last visited
Mar. 14, 2018).
2
reservoirs in the high mountains, providing a steady trickle of instream flows, until the late-spring melt in which downstream water users subsist on this runoff through late summer.6 Unfortunately, scientists predict that in thirty years snow will retreat from West Yellowstone, Montana by mid-April—up to three weeks earlier than today.7 Ann Rodman, GIS specialist and climatologist at Yellowstone National Park, suggests that annual snowpack in Yellowstone is melting faster due to warmer spring temperatures.8 As a result, some areas of the park have over thirty-five days of less snow on the ground compared to forty-five years ago.9 As Rodman acknowledges, less snow “affects a whole lot more than just the ecology in the park.”10 Indeed, one such byproduct of these warming temperatures is the occurrence of late-season drought even despite normal precipitation levels.11
Warming temperatures have already impacted water availability in the Yellowstone River Basin, ultimately resulting in litigation. As recently as February 20, 2018, the U.S. Supreme Court entered judgment in Montana v. Wyoming.12 The case, originally filed in 2007 by Montana, alleged that Wyoming diverted and stored water for uses that did not enjoy pre-1950 rights when pre-1950 rights in Montana went unmet, violating the Yellowstone River Compact’s apportionment scheme.13 In light of this long and expensive trial, the two overarching purposes of the Compact—“equitable division” of the waters of the Yellowstone River and its four major tributaries, and avoiding “present and future controversy” between the states14—are effectively
6 Mike Tercek, Ann Rodman & David Thoma., Trends in Yellowstone’s Snowpack, 23 YELLOWSTONE
SCIENCE 20, 26 (2015).
7 Kelsey Dayton, Yellowstone’s Winters are Getting Shorter, WYOFILE:PEOPLE,PLACES,&POLICY (April
4, 2018, 11:14 AM), https://www.wyofile.com/yellowstones-winters-getting-shorter/.
8 Ann Rodman, A Climate Change Primer, 23 YELLOWSTONE SCIENCE 4, 7 (2015). 9 Dayton, supra note 7.
10 Rodman, supra note 8. 11 Id.
12 See Montana v. Wyoming, 583 S. Ct.____(2018).
13 Montana Bill of Complaint at 3, ¶ 8, Montana v. Wyoming, 131 S. Ct. 1765 (2011) (No. 137, Orig.). 14 Yellowstone River Compact, supra note 3, at pmbl.
3
undermined by the presence of inequitable Compact articles. Specifically, the Article V apportionment scheme contains a hierarchy of water rights that creates risk inequity between states during hydrological low-flow years. Additionally, the Compact remains uncertain as to the status of tribal water rights within the Article V apportionment scheme. Lastly, the possibility of tribal participation, aimed at mitigating the prospect of tribal water inequity during times of drought, is diminished with the absence of tribal representation on the Article III Compact Commission.
Unfortunately, relief from hydrologic uncertainty throughout the Yellowstone Basin is unlikely to abate. Snowpack throughout the Rockies will predictably decrease annually from steadily rising temperatures.15 Late-season drought, consequently, will become more common.16 Because of this high potential for future water shortage, coupled with the Compact’s inequitable deficiencies, prime conditions exist for future water disputes between Montana and Wyoming. As a result, Montana and Wyoming must amend the Yellowstone River Compact in order to create an equitable interstate apportionment scheme consistent with the Compact’s purposes.17
Part II of this thesis first offers necessary context for understanding the key problems with the Yellowstone River Compact. This Part proceeds by providing a summary the prior appropriation doctrine utilized by western states like Montana and Wyoming, discussing tribal water rights in the basin, offering a brief history of interstate water compacts generally, and then detailing key provisions of the Yellowstone River Compact. Part III discusses the problems that undermine equitable distribution of the Yellowstone and its tributaries, including climate change and specific Compact deficiencies—namely, the insulation of pre-1950 appropriative rights, the exclusion of settled tribal water rights in the Article V apportionment scheme, and the absence of
15 Tercek et al., supra note 6, at 26. 16 Id.
17 Andrew S. Bennett, Comment, Montana v. Wyoming: A Rising Tide of Water Issues, 36 AVE MARIA L.
4
tribal representatives on the Article III Compact Commission. In addition, a summary of the recently resolved Montana v. Wyoming litigation is offered as a cautionary tale, illustrating potential consequences of avoiding amendment despite hydrologic changes in the basin. Lastly, Part IV provides necessary prescriptive amendments for some of the Compact’s key provisions in order to keep with the Compact’s stated purposes of achieving equity and avoiding controversy, along with a framework to address how amendment may successfully occur.
II.BACKGROUND
“The problem facing mankind is not a lack of fresh water, but a lack of efficient regimes for
using the water that is available.”18
– Robert Ambroggi, American hydrologist This Part offers necessary context to understanding nuances of the Yellowstone River Compact. The material first provides a discussion about the prior appropriation doctrine – the western water law doctrine that underpins the Yellowstone River Compact and other interstate water compacts in the west. Subsequently, a summary of tribal water rights in the basin is offered. A brief discussion of interstate water compacts next illustrates the purpose of such compacts. Finally, an overview of the Yellowstone River Compact includes a discussion of the geography of the Yellowstone River Basin, necessary background on the Compact’s formation, and a summary of the Compact’s key provisions: the Article V apportionment scheme, the Article VI Tribal water rights savings clause, the Article III Compact Commission, and the Article XI Amendment provision.
18 FRED PEARCE, WHEN THE RIVERS RUN DRY: WATER—THE DEFINING CRISIS OF THE TWENTY-FIRST
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A. Prior Appropriation
The prior appropriation doctrine found its genesis in the west in the mid-19th century during western settlement given the unsuitability of the riparian rights doctrine, the prevalent water doctrine in the eastern United States, to apportion water throughout the arid landscape.19 Indeed, it has been presumed that “if every drop of water which falls on the mountains of the west could be made available, there would not be enough to supply one-half of the land suited for irrigation.”20 In effect, the prior appropriation doctrine was not based on equity, but on rewarding the earliest finders at the expense of competing appropriators in times of need.21 From this winner-take-all doctrine, western settlement developed.
In the American West today, seventeen states follow, to some extent, the doctrine of prior appropriation to govern intrastate surface water apportionment.22 Those appropriators who lay claim to water along a particular segment of stream or river earlier than another appropriator are the senior appropriators, entitled to satisfy their “claim” before a junior’s, at the junior’s risk of being enjoined by the senior appropriator.23
Prior appropriation is subject to certain limitations beyond temporal priority, however. In particular, these limitations include “beneficial use,” and “need.” Beneficial use restricts users to the amount of water necessary by making a reasonable use of the water.24 In addition, a senior
19 Chennat Gopalakrishnan, The Doctrine of Prior Appropriation and Its Impact on Water Development: A
Critical Survey, 32 THE AM.J. OF ECON.&SOC. 61, 62 (1973).
20 Id. 21 Id. 22 Id. at 61.
23 Final Report of the Special Master, Jan. 10, 2018, Dkt. 522, at 21-22, Montana v. Wyoming, 131 S. Ct.
1765 (2011) (No. 137, Orig.), available at http://web.stanford.edu/dept/law/mvn/pdf/522%20-%201.10.18_ Final%20Report%20of%20the%20Special%20Master.pdf.
24 Montana v. Wyoming, supra note 12, at 376, quoting 1C.KINNEY,LAW OF IRRIGATION AND WATER
6
water right holder cannot assert his or her priority if the senior does not need water.25 Unfortunately, what these terms mean is rather subjective. As Special Master Thompson noted in his Final Report in Montana v. Wyoming, “the doctrine is sometimes unclear and often employs broad, vague concepts such as reasonableness.”26 Thus, not only does the doctrine employ inequitable means for apportioning water, but also may be the focus of dispute simply because of its ambiguous application.
B. Indian Reserved Rights and Basin Reservations
Within the Yellowstone River Basin, four tribal nations find their homes on federally established Indian reservations—the Crow and Northern Cheyenne in eastern Montana, and the Eastern Shoshone and Northern Arapaho in Wyoming. In addition, each of these tribes relies on waters of the Yellowstone River System for their livelihood. This section first discusses important federal case law establishing the federal Indian reserved rights doctrine, granting tribes a legal right under federal law to waters of the Yellowstone River System. Next, this section outlines the settled or adjudicated water rights that each of these tribes enjoys along the Yellowstone River System within the state in which their reservation is located, all of which have occurred subsequent to the Yellowstone River Compact’s 1951 ratification.
1. Indian Reserved Rights Doctrine
A contentious history exists surrounding tribal water rights in the American West— including those disputed in Montana and Wyoming. Both Montana and Wyoming recognized existing Indian water rights and the power of Congress to control Indian affairs upon attaining
25 A.DAN TARLOCK,LAW OF WATER RIGHTS AND RESOURCES 32(1st ed. 1988) (“If an appropriator does not
need the water, priority is temporarily suspended and the right goes to the next right in order of priority until the senior again makes the call.”).
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statehood.27 Both the Enabling Act of 1889 authorizing statehood for Montana and the State Constitution of Wyoming recognized that settlers inhabiting the proposed states disclaimed all right and title “to all lands within said limits owned or held by any Indian or Indian Tribes.”28 The law of water rights follows a similar end—the right to the use of water exists as a real property interest.29 While states have procedures for administration and adjudication of water rights, jurisdiction only extends to the state; there is no application to federal rights or rights of Indian tribes.30 Instead, where a water right is in question on federal or tribal land, the power of Congress is absolute, and not subject to limitations of the state.31
The judiciary has recognized, through a series of cases, that the United States operates as a fiduciary or trustee of Indian tribes, protecting (at least ostensibly) Indian water rights.32 The landmark case for these rights is the 1908 U.S. Supreme Court case, Winters v. United States, 207 U.S. 564 (1908).33 In Winters, the Court affirmed a decree preventing companies from using Milk River waters intended for the Fort Belknap Indian Reservation in Montana.34 In addition, the Court held that when the United States government created American Indian reservations, it was with the intent of allowing American Indian communities to become self-reliant.35 Consequently, the Court held water rights could be reserved for tribes as an implication of the instrument creating the reservation.36 In this case, because the Fort Belknap reservation was created in the 1888 statute,
27 William H. Veeder, Water Rights in the Coal Fields of the Yellowstone River Basin, 40 LAW &CONTEMP.
PROBS. 77, 83 (1976).
28 Act of Feb. 22, 1889, ch. 180, sec. 4, 25 stat. 676, 677; WYO. CONST. art. 21, § 26. 29 Veeder, supra note 27, at 84.
30 Id.
31 United States v. San Francisco, 310 U.S. 16, 29, 30 (1940). 32 See e.g., Winters v. United States, 207 U.S. 564 (1908). 33 Id.
34 Id. at 575. 35 Id. at 577. 36 Id.
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so too was an implied reserved water right.37 However, this water right was reserved exclusively for agricultural purposes, based upon a finding that Indians would have no use for the farmland if they did not have access to a water source.38
In subsequent cases, the U.S. Supreme Court upheld and applied Winters, while noting important distinctions in the priority date of tribal rights. While the 1905 case of United States v. Winans established that tribal water rights date from time immemorial—i.e., from the beginning of time39—Winters established that the priority date of the water right was from the creation date of the reservation.40 Ultimately, the priority date of a federal reserved Indian right will depend on whether the use was predevelopment or newly contemplated by the creation of the reservation. Some tribes enjoy both types of rights—both time immemorial and from the time of the reservation’s creation.41
The federal reserved rights doctrine was later litigated in the context of the Colorado River Basin in the principle case of Arizona v. California.42 In this case, the U.S. Supreme Court established the Practicably Irrigable Acreage (PIA) standard for quantifying water rights as applied to Indian reservations that relied on irrigated agriculture for economic purposes.43 The Court determined that the amount of water reserved for use by the tribe is equal to the amount of water that would sufficiently irrigate all of the irrigable acreage within the reservation.44 In addition, these water rights apply irrespective of whether they are used.45 In this regard, the “use it or lose
37 Id. at 575. 38 Id.
39 See, e.g., United States v. Winans, 198 U.S. 371, 381 (1905). 40 Winters v. United States, supra note 32, at 575.
41 See Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754, 764
(Mont. 1985); United States v. Adair, 723 F.2d 1394, 1411, 1414-15 (9th Cir. 1983).
42 Arizona v. California, 373 U.S. 546 (1963). 43 Id. at 600-601.
44 Id. 45 Id.
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it” concept employed by the doctrine of prior appropriation does not apply to Indian reservations.46 Even if a tribe is not using the full portion of their reserved right, it exists in perpetuity.47 Moreover, the Supreme Court held that reserved water should be satisfied from the state’s allocation in which the Indian reservation is located, holding that “all consumption of mainstream water within a state is to be charged to that state, regardless of who the user may be.”48 Consequently, water used on Indian reservations along the Lower Colorado River is to be satisfied from the state’s apportionment in which the reservation is located.49
2. Settled Tribal Water Rights in the Yellowstone River Basin
The four tribes in the Yellowstone River Basin—the Crow, Northern Cheyenne, Eastern Shoshone, and Northern Arapaho—not only enjoy access to water of the Yellowstone River System pursuant to the Indian reserved rights doctrine, but also have had water rights within this system defined either through state water compacts or adjudication. The genesis, extent, and scope of each tribe’s water right within the Yellowstone River System are discussed below.
a. Crow Indian Reservation
The Crow Indian Reservation, established in 1868, is home to the Crow Tribe.50 Although the original reservation constituted approximately eight million acres, land cessions to the United States occurred in 1882, 1892, and 1906, reducing the western and northern boundaries of the original reservation.51 Today, the reservation is 2.2 million acres in size and home to
46 Id. at 585-586. 47 Id.
48 Id. at 601. 49 Id.
50 FREDERICK EHOXIE,PARADING THROUGH HISTORY.THE MAKING OF THE CROW NATION IN AMERICA,
1805-1935, 92 (1995).
51 Crow Reservation Timeline, MONTANA OFFICE OF PUB. INSTRUCTION: INDIAN EDUCATION DIVISION
(2017), https://opi.mt.gov/Portals/182/Page%20Files/Indian%20Education/Social%20Studies/K12%20Resources/ Crow %20Timeline.pdf.
10
approximately 7,900 Crow members.52 It is located east of Billings in south central Montana, and extends across Big Horn, Yellowstone, and Treasure counties.53
The Bighorn River, one of the four major tributaries of the Yellowstone, feeds the Crow Indian Reservation.54 On its travels from Wyoming, the Bighorn turns northeast after it crosses into Montana and flows past the north end of the Bighorn Mountains through the Crow Indian Reservation.55 At this juncture, the Yellowtail Dam forms the Bighorn Lake reservoir.56
Figure 1. Crow Indian Reservation Area, including the Big Horn River.57
The Crow Indian Reservation Compact settled Crow tribal water rights on the Bighorn River.58 The compact exists between the Crow Tribe, the United States, and the State of
52 Crow Nation, MONTANA GOVERNOR’S OFFICE OF INDIAN AFFAIRS, https://tribalnations.mt.gov/crow (last
visited Apr. 15, 2019).
53 Id. 54 Id.
55 Sarah Arnott, In the Aftermath of the Bighorn River Decision: Montana Has Title, Indian Law Doctrines
Are Clouded, and Trust Questions Remain, 2 PUB.LAND L.REV. 1 (1981).
56 Id.
57 MTDNRC CROW INDIAN RESERVATION COMPACT (2019), available at http://dnrc.mt.gov/divisions/
reserved-water-rights-compact-commission/docs/compact-appendices/crow_appendix_4.pdf.
11
Montana.59 It was passed in 1999 by the Montana Legislature and signed by then-Governor Marc Racicot.60 In 2010, Congress finally ratified the compact.61 The Crow Tribe approved the compact in March 2011, and the Montana Water Court ultimately ratified the compact in May 2015.62
Article I of the Crow Compact clarifies the priority date for Crow tribal water rights as May 7, 1868, consistent with the formation of the Crow Reservation pursuant to the Treaty of Fort Laramie.63 This priority date is the senior water right on the water sources covered by the Compact.64 Article III of the Crow Compact acknowledges quantified rights, including 500,000 acre-feet per year of natural flow from the Bighorn River, along with surface and groundwater rights along the Little Bighorn River, Pryor Creek, Rosebud Creek, and various creeks within the Tongue River Basin and Yellowstone Basin.65 The Tribe, State of Montana, and Bureau of Indian Affairs collectively administer this compact, and the Crow-Montana Compact Board resolves any disputes.66 In total, the Crow Tribe is entitled to 650,000 acre-feet per year from natural flow and storage on the Bighorn River.67 Despite this compact’s existence, the negotiated settlement did not attempt to alter or amend any provision in the Yellowstone River Compact, and it did not adopt or preclude any interpretation of that compact.68
b. Northern Cheyenne Indian Reservation
The Northern Cheyenne Indian Reservation is home to the Northern Cheyenne Tribe. The reservation is located in southeastern Montana and shares a boundary on the west with the Crow
59 Id.
60MTDNRCCROW INDIAN RESERVATION COMPACT (2019), supra note 57. 61 Id.
62 Id.
63 MONT.CODE ANN. § 85-20-901 (2017), supra note 3, at art. I. 64 Id.
65 Id. at art. III. 66 Id. at art. IV. 67 Id. at art. III. 68 Id. at art. I.
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Reservation.69 President Chester Arthur established the Northern Cheyenne Indian Reservation by executive order on November 16, 1884.70 On March 19, 1900, President William McKinley extended the reservation to the west bank of the Tongue River, one of the primary tributaries of the Yellowstone River.71 The Tongue River functions as the eastern border of the reservation and provides the main source of water for the reservation.72 Today, the reservation is approximately 444,000 acres in size, and home to just over 5,000 Northern Cheyenne tribal members.73
Figure 2. Northern Cheyenne Indian Reservation.74
69 Northern Cheyenne Tribe, MONTANA GOVERNOR’S OFFICE OF INDIAN AFFAIRS, https://
tribalnations.mt.gov/ northerncheyenne (last visited Apr. 15, 2019).
70 NORTHERN CHEYENNE CONST. art. I. 71 Id.
72 Northern Cheyenne Tribe, supra note 69. 73 Id.
74 MT DNRC NORTHERN CHEYENNE – MONTANA WATER COMPACT (2019), available at
http://dnrc.mt.gov/divisions/reserved-water-rights-compact-commission/docs/compact-maps/northcheyenne_6 2018.pdf.
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The Northern Cheyenne agreed to a water compact with the State of Montana, ratified on May 17, 1991, settling all existing claims of water on behalf of the Northern Cheyenne to water within the State of Montana.75 Along the Tongue River, the Tribe has a right to “divert or use or permit the diversion or use” of up to 12,500 acre-feet per year from direct flows on the Tongue River with a priority date of October 1, 1881.76 In addition, the Tribe has a 20,000 acre-foot storage right with a priority date “equal to the senior-most right for stored water in the Tongue River Reservoir (TRR), the major state-operated reservoir just south of the reservation,” dated April 21, 1937.77 The Tribe also has water rights in Rosebud Creek, a Montana tributary to the Yellowstone River, and a 30,000 acre-feet storage right in Big Horn Reservoir located on the Bighorn River.78
c. Wind River Indian Reservation
The Wind River Indian Reservation is located in central-western Wyoming and home to about 8,000 residents consisting of both the Eastern Shoshone and Northern Arapahoe tribes.79 The reservation is located primarily in Fremont County, with the northeastern section occupying Hot Springs County.80 The reservation is approximately 2.2 million acres in size—the seventh largest reservation in the country.81 The treaty that secured the over 2,000 miles of land within the “Warm Valley” basin was the Second Treaty of Fort Bridger, formed July 3, 1868, between the U.S. government, the Eastern Shoshone Tribe, and the Bannock Tribe.82 Approximately ten years
75 MONT.CODE ANN § 85-20-301 (2017), supra note 3, at art. I. 76 Id. at art. II.
77 Id. 78 Id.
79 Richard L. Daddow, WATER RESOURCES OF THE WIND RIVER INDIAN RESERVATION,WYOMING,U.S.
GEOLOGICAL SURVEY WATER-RESOURCES INVESTIGATIONS REPORT 95-4223 7 (1996), available at https://pubs. usgs.gov/wri/1995/4223/report.pdf.
80 Id. 81 See Id.
14
after the treaty’s formation, the U.S. military moved the Northern Arapaho Tribe onto the Wind River Reservation.83
Since the reservation’s establishment in 1868, its boundary has changed several times.84 The Wind River, a 185-mile stretch of the Bighorn River of the Yellowstone, flows across the Wind River Indian Reservation and joins the Little Wind River near Riverton.85 From there, the river flows north through the Owl Creek Canyon, encountering the Boysen Dam and Reservoir, the majority of which is physically located on the reservation.86 Finally, on the north side of the Wind River Canyon, the river officially becomes the Bighorn River at the Wedding of the Waters—a point where the name of the river changes from “Wind” to “Bighorn” despite the fact that there is no convergence of two streams.87
83 About the Shoshone Tribe, EASTERN SHOSHONE, http://easternshoshonetribe.org/about-us/ (last visited
December 22, 2018); Location, NORTHERN ARAPAHO, http://www.northernarapaho.com/location (last visited Dec. 22, 2018).
84 Daddow, supra note 79, at 7.
85 Emilene Ostlind, The Bighorn Basin: Wyoming’s Bony Back Pocket, WYOHISTORY.ORG (Nov. 8, 2014),
https://www.wyohistory.org/encyclopedia/bighorn-basin-wyomings-bony-back-pocket.
86 Id. 87 Id.
15
Figure 3. Wind River Indian Reservation88
The Northern Arapaho and Eastern Shoshone have adjudicated water rights within the State of Wyoming on the Wind/Bighorn River. However, unlike the Crow and Northern Cheyenne tribes in Montana, these tribes’ water rights were resolved via a 37-year-long litigation known as the Big Horn adjudication.89 Following the original Wyoming Supreme Court decision, known as Big Horn I, decided on February 24, 1988, the Northern Arapaho and Eastern Shoshone were granted nearly 500,000 acre-feet of water per year on the Wind/Bighorn River.90 Within this quantity, 250,000 acre-feet were reserved exclusively for agricultural purposes.91
In Big Horn III, issued on June 5, 1992, the Wyoming Supreme Court held that the Wind River tribes could only use their water rights for agricultural purposes.92 Although the Eastern
88 Wind River Indian Reservation Climate and Drought Summary 2016-2017, WIND RIVER INDIAN
RESERVATION, available at https://hprcc.unl.edu/pdf/WindRiverClimateSummary_Mar17.pdf.
89 Jason A. Robison, Wyoming’s Big Horn General Stream Adjudication, 15 WYO.L.REV., 244, 246 (2015). 90 In re the General Adjudication of All Rights to Use Water in the Big Horn River System and All Other
Sources, 753 P.2d 76, 84 (Wyo. 1988) (Big Horn I).
91 Id. at 102.
92 In re the General Adjudication of All Rights to Use Water in the Big Horn River System and All Other
16
Shoshone and Northern Arapaho tribal water code designates seventeen types of beneficial uses for water on the reservation, the Wyoming State Engineer’s Office has noted that most downstream appropriators traditionally use water based on return flows; therefore, if certain uses do not create similar return flows as agricultural uses, then some other users are at risk.93 In addition, the court in Big Horn III also held that the Wyoming State Engineer is to serve as the administrator of these tribal rights.94
C. Interstate Water Compacts
States may apportion intrastate surface water within their boundaries statutorily, via common law, or a combination of the two.95 However, few rivers flow within the boundaries of one state.96 As a result, three common strategies address interstate surface water rights: equitable apportionment, statutory apportionment, or interstate water compacts.97 By far the most common way western states have dealt with transboundary water is through the third option: formation of interstate water compacts.98 Water compacts emerged in the 1920s as the primary tool for establishing equity in water apportionment between states because of the federal government rarely settling water problems between states by litigation.99 Today, twenty-six interstate water
93 See id. 94 Id. at 282-83.
95 See, e.g., Richard A. Simms, Equitable Apportionment – Priorities and New Uses, 29 NAT.RESOURCES J.
549,550-551(1989).
96 See, e.g., Stephen E. Draper, Introduction to Transboundary Water Sharing, 133 J.WATER RES.PLAN.&
MGMT.377, 377 (2007) (noting that “much of the earth’s source water in surface water rivers and groundwater aquifers runs along or through political boundaries”).
97 See GETCHES, WATER LAW IN A NUTSHELL 3,428,434 (4th ed. 2008). However, the Supreme Court can
apportion interstate waters through equitable apportionment. See U.S. CONST., art. III, § 2. Additionally, Congress can statutorily apportion interstate water, but has only done so in two instances. See Douglas L. Grant, Interstate
Water Allocation Compacts: When the Virtue of Permanence Becomes the Vice of Inflexibility, 74 U. COLO.L.REV. 105,174-75(2003).
98 Hilary T. Jacobs, Comment, When the River Dries up, the Compact Need Not Wither Away: Amending
Interstate Water Compacts to Ensure Long-Term Viability, 73 MD.L.REV. 96, 109 (2014).
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apportionment compacts exist, including seven which the State of Wyoming has joined.100 Interstate water compacts are both state and federal law, the latter pursuant to the Compact Clause,101 and require ratification by each state’s legislature.102 Furthermore, while the design of interstate compacts can vary, all share two important core functions: an apportionment scheme providing an interstate water-allocation framework between signatories, and a mechanism for administration of the apportionment scheme.103
Interstate water compacts are the preferred approach to interstate water apportionment rather than through judicial decisions offered by the Supreme Court,104 in part, because the prospect of avoiding litigation favors timeliness and settlement by mutual accommodation.105 However, interstate water compacts are not without problems.106 In western water compacts, prior appropriation creates notable issues with regard to administration of these compacts because the nuances of each state’s prior appropriation doctrine may vary substantially across state lines.107 Illustrating this point, while Montana relies primarily on judicial enforcement and oversight using
100 See U.S.FISH &WILDLIFE SERV.,DIGEST OF FEDERAL RESOURCE LAWS OF INTEREST TO THE U.S.FISH
AND WILDLIFE SERVICE: INTERSTATE COMPACTS, (listing the current twenty-six interstate water apportionment compacts), available at http://www.fws.gov/laws/lawsdigest/compact.html (last visited April 2, 2018). Wyoming is party to the Belle Fourche, Colorado River, Upper Colorado River Basin, Snake River, Yellowstone River, Upper Niobara, and Bear River compacts. Id.
101 See U.S.CONST., art I, § 10(3) (“no state shall, without the consent of the Congress, enter into any
Agreement or Compact with another state.”).
102 Jacobs, supra note 98 at 98.
103 See generally BARTON H.THOMPSON,JR.,JOHN D.LESHY &ROBERT H.ABRAMS,LEGAL CONTROL OF
WATER RESOURCES: CASES AND MATERIALS 903 (5th ed. 2012) (explaining that “[i]nterstate water compacts sometimes establish a commission or other interstate administrative body and give it authority to manage the shared water resource in accordance with the standards laid out in the compact.”).
104 See Colorado v. Kansas, 320 U.S. 383, 392 (1943) (Justice Roberts on the preference of Interstate Water
Compacts: “Such controversies [concerning waters] may appropriately be composed by negotiation and agreement, pursuant to the compact clause of the federal Constitution. We say of this case, as the court has said of interstate differences of like nature, that such mutual accommodation and agreement should, if possible, be the medium of settlement, instead of invocation of our adjudicatory power.”).
105 See id. at 392 (explaining “such mutual accommodation and agreement should, if possible, be the medium
of settlement, instead of invocation of adjudicatory power.”).
106 Jacobs, supra note 98, at 111.
107 Final Report of the Special Master, supra note 23, at 21 (Special Master Barton Thompson explains, “the
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an ad-hoc approach to determine pre-1973 water rights,108 Wyoming proactively polices water use of prior appropriators through an administrative permit system run through the State Engineer’s office.109 Consequently, determining priority of appropriations across state lines is challenging when states rely on different methods for tracking these appropriative rights.
Compounding the problem of determining interstate appropriative rights, prior appropriation creates temporal discrepancies in application. Appropriators in headwater states— states in which a river or stream originate—may not necessarily possess senior appropriative rights, yet may access water temporally earlier than appropriators in downstream states.110 This situates downstream appropriators at the mercy of upstream appropriators, and in low-flow years may create issues if upstream junior appropriators satisfy their claim to the injury of downstream senior appropriators.111 This temporally uneven dynamic is relevant to the geography and hydrology of the Yellowstone River Basin, as Wyoming, a headwater state, allows its post-1950 appropriators to satisfy their appropriations temporally earlier than Montana’s pre-1950 appropriators.112
In addition to complexities created by prior appropriation, inefficient or non-existent dispute-resolution mechanisms, methods of interpretation, treatment of groundwater, and compacts’ relationship with federal environmental laws can create significant administrative issues
108 Final Report of the Special Master, supra note 23, at 22. 109 Id.
110 See Kansas v. Nebraska, 135 S. Ct. 1042, 1048 (2015) (explaining “[i]n Kansas v. Colorado, 185 U. S.
125, 145 (1902), we confronted a simple consequence of geography: An upstream State can appropriate all water from a river, thus ‘wholly depriv[ing]’ a downstream State ‘of the benefit of water’ that ‘by nature’ would flow into its territory.”).
111 See id.
112 See First Interim Report of the Special Master, Dkt. 55, Feb. 10, 2010, at 66-67, Montana v. Wyoming,
131 S. Ct. 1765 (2011) (No. 137, Orig.) (discussing the challenges with administration of prior appropriation across state lines), available at http://web.stanford.edu/dept/law/mvn/pdf/No137_First_Interim_Report_Special _Master.pdf.
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for interstate compacts.113 Furthermore, interstate water compacts may present oversimplified and outdated apportionment schemes that fail to consider potential disagreements.114 Because most water compacts were created primarily to receive federal funding for water projects, compact negotiators were incentivized to either omit contentious points or dilute them with ambiguity, effectively undermining the equitable purposes purported by most compacts.115 Douglas Grant, water law professor emeritus at the University of Nevada Las Vegas William S. Boyd School of Law, predicts litigation may occur more frequently in the future due to as a result of these overly simplistic and shortsighted documents attempting to govern increased demands on water resources.116
D. Yellowstone River Compact
The Yellowstone River Compact governs the apportionment of the Yellowstone River and its tributaries—a river system that spans across Wyoming, Montana, and western North Dakota.117 This section provides a summary of the formation of this Compact, explains the Compact’s hydrologic scope, and identifies the Compact’s dual purposes: equitable apportionment of these waters, and avoidance of present and future controversy.118 Next, a closer look at some of the Compact’s key provisions implicating these dual purposes is provided: the Article V apportionment scheme and the Article VI tribal water rights provision. Finally, important administrative Articles are discussed: Article III, which identifies the Compact Commission and
113 See Jacobs, supra note 98, at 111 (explaining that “[e]ven in the presence of compacts, disputes over water
supplies still arise, largely over compact interpretation and implementation.”).
114 See id. at 123 (noting that “[i]f states want to prevent the voiding of water allocation provisions and
preserve compacts, they must amend compacts in order to take into account the possibility of extreme drought scenarios.”).
115 First Interim Report of the Special Master, supra note 112, at 8.
116 Douglas L. Grant, Comment, Limiting Liability for Long-Continued Breach of Interstate Water Allocation
Compacts, 43 NAT.RESOURCES J. 373, 375 (2003).
117 Yellowstone River Compact, supra note 3, at pmbl. 118 Id.
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provides a dispute resolution mechanism, and Article XI, which provides the power to amend the Compact.
1. Formation
At the time negotiations commenced between Montana and Wyoming regarding creation of the Yellowstone River Compact, the driving motivation was to access federal assistance for new water storage facilities in the basin.119 As was common among federal water projects at the time, Congress required agreement among the states on the division of the Yellowstone River system’s waters before funding new storage projects.120 Congress granted Montana and Wyoming permission to negotiate a compact in 1932.121 After multiple drafts, an invitation to North Dakota to join negotiations, and four different negotiation rounds, formation of the Yellowstone River Compact Commission occurred 1949.122 Each state ratified the final version of the Compact in early 1951, and Congress consented to its terms on October 30 of the same year.123
2. Hydrologic Scope
The Yellowstone River Compact, per Article II(D), applies to all surface water of “the Yellowstone River, all of its tributaries, including springs and swamps, from their sources to the mouth of the Yellowstone River near Buford, North Dakota, except those portions which are within or contribute to the flow of stream within the Yellowstone National Park.”124 This hydrologic scope is massive; the Yellowstone River Basin stretches 70,100-square miles across portions of Montana, Wyoming, and North Dakota.125 The basin’s expanse is nearly equally
119 First Interim Report of the Special Master, supra note 112, at 8. 120 Id.
121 Id. 122 Id. 123 Id. at 9.
124 Yellowstone River Compact, supra note 3, at art. II(D)
125 U.S.GEOLOGICAL SURVEY,NATIONAL WATER-QUALITY ASSESSMENT PROGRAM,YELLOWSTONE RIVER
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divided between Montana (51%) and Wyoming (48%), with only a small amount in North Dakota (1%).126 This basin includes the main stem and the four major tributaries of the Yellowstone River: the Bighorn, Tongue, Powder, and Clarks Fork.127
Figure 4. Yellowstone River Basin.128
The Yellowstone River’s main stem meanders 671 miles, with its headwaters located on Younts Peak, Wyoming, outside the southeast boundary of Yellowstone Park.129 The headwaters begin at an elevation of 12,800 feet, flowing first into Yellowstone Lake, and then northwest to Gardiner, Montana.130 From there, the Yellowstone continues east across the plains of southcentral and eastern Montana, descending to a mere 1,850 feet at its convergence with the Missouri River
126 Id. 127 Id.
128 Montana Earth Science Picture of the Week, FORMONTANA.NET, available at http://formontana.net/
yellow. html.
129 Rivers, NATIONAL PARK SERVICE (Mar. 23, 2018), https://www.nps.gov/yell/learn/nature/water.htm. 130 Id.
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sixteen miles after crossing the North Dakota border.131 Collectively, this watershed drains one-third of Montana.132
The Compact also covers the Yellowstone River’s four major tributaries—again, the Tongue, Powder, Bighorn, and Clarks Fork.133 The Tongue River begins in Wyoming’s Big Horn Mountains, flows through northern Wyoming and southeastern Montana, and drains into the Yellowstone River at Miles City, Montana.134 The Powder River begins in three forks in north central Wyoming, eventually converging at the foothills of the Bighorn Mountains near Kaycee, Wyoming, before flowing north into Montana and joining the Yellowstone fifty miles downriver of Miles City.135 Clarks Fork originates in the Gallatin National Forest in south central Montana near Cooke City, first flowing southeast into the Shoshone National Forest in northwest Wyoming, and then northeast back into Montana.136 The Bighorn River begins as the Wind River near Togwotee Pass Summit in Wyoming.137 It flows southeast into Wind River Basin toward Riverton, joins with the Little Bighorn River, enters the Bighorn Basin, and joins the Shoshone River where it eventually empties into the Yellowstone on the Montana plains.138
3. Purposes
The dual purposes of the Compact appear in its Preamble.139 This Preamble seeks, in part: “[t]o remove all causes of present and future controversy” between Montana, Wyoming, and North Dakota, and “to provide for an equitable division and apportionment of such waters . . . (emphasis
131 Id. 132 Id.
133 First Interim Report of the Special Master, supra note 112, at 3.
134 Ronald B. Zelt, Greg Boughton, Kirk A. Miller, Jon P. Mason & Laura M. Gianakos, U.S.GEOLOGICAL
SURVEY, YELLOWSTONE RIVER BASIN, WATER-RESOURCES INVESTIGATIONS REPORT 98-4269 31-32 (1999),
available at https://pubs.usgs.gov/wri/wri984269/wri984269.pdf.
135 Id. 136 Id. 137 Id. 138 Id.
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added).”140 From a textual perspective, therefore, the key to the Compact’s purpose is an equitable apportionment of the Yellowstone River System’s waters. Logically, achieving equitable apportionment should serve the other purpose—avoiding controversy. In addition, the Preamble acknowledges the temporal element to removing conflict, striving to do so both at the time of ratification and in the future.141 Thus, it is reasonable to infer that changes to the substantive provisions of the Compact may be made to continue to avoid controversy.
4. Article V: Apportionment Scheme
The Compact recognizes the rights of all three signatory states to the waters of the Yellowstone River System, and aims to address the apportionment of the principal tributaries shared between Montana and Wyoming.142 The key provisions governing equitable apportionment of the main stem and tributaries of the Yellowstone River appear in Article V.143 This apportionment scheme has three tiers, creating a hierarchy of water rights distinguishing between appropriative rights existing as of January 1, 1950 and subsequent water uses.144
a. V(A)
Article V(A) represents the first and most insulated tier in this hierarchy, solidifying appropriative rights for all the signatory states for pre-1950 water users of the Yellowstone River System.145 This provision states that “[a]ppropriative 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 enjoyed in accordance with the laws governing the acquisition and use of water under the
140 Id. 141 Id.
142 First Interim Report of the Special Master, supra note 112, at 9 (citing Senate Rep. No. 883, at 6, Joint
App. at 17).
143 Yellowstone River Compact, supra note 3, at art. V.
144 First Interim Report of the Special Master, supra note 112, at 10.
145 Yellowstone River Compact, supra note 3, at art. V(A) (“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 enjoyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation.”).
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doctrine of appropriation.”146 As the highest priority, a pre-1950 “senior” right holder may place a “call” on post-1950 appropriators whose use injures their pre-1950 right.147
b. V(B)
Article V(B) provides the second and third tier of the appropriative hierarchy. The second tier, found in the first clause of V(B), adds an additional layer of security to pre-1950 appropriators. It allocates to each state, out of “unused and unappropriated waters of the Interstate tributaries” of the Yellowstone as of January 1, 1950, the quantity of water necessary to “provide supplemental water supplies” necessary to satisfy these pre-1950 users of the Yellowstone River System.148 Finally, the second clause in V(B) allocates “the remainder of the unused and unappropriated water not needed to satisfy pre-1950 rights to each state for storage or direct diversions for beneficial use on new lands or for other purposes.”149 These unappropriated waters are divided by a percentage-based apportionment along the four major tributaries of the Yellowstone River: (1) on the Clarks Fork, 60% to Wyoming and 40% to Montana; (2) on the Bighorn, 80% to Wyoming and 20% to Montana; (3) on the Tongue, 40% to Wyoming and 60% to Montana; and (4) on the Powder, 42% to Wyoming and 58% to Montana.150
5. Article VI: Tribal Water Rights
In addition to the appropriation mechanism between states, the Compact also recognizes tribal water rights. Article VI of the Yellowstone River Compact provides the relevant text “reserving” Indian water rights in the Yellowstone River Basin: “Nothing contained in this Compact shall be so construed or interpreted as to affect adversely any rights to the use of the
146 Id.
147 Final Report of the Special Master, supra note 23, at 19. 148 Yellowstone River Compact, supra note 3, at art. V(B). 149 Id.
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waters of Yellowstone River and its tributaries owned by or for Indians, Indian tribes, and their reservations.”151
Despite Article VI’s text, the status of tribal water rights remain uncertain within the Yellowstone River Compact’s Article V apportionment scheme. Per the Indian reserved rights doctrine established by the landmark U.S. Supreme Court case of Winters v. United States,152 and the settled tribal water rights at the state level of the four tribes in the Yellowstone Basin, the status of these tribal water rights deserve clarification within the Compact’s Article V apportionment scheme.
6. Article III: Compact Administration
Article III of the Compact discusses not only the Yellowstone River Compact Commission, but also the procedure for resolving disputes between Montana and Wyoming. Article III(A) states: “[t]he provisions of this Compact . . . shall be administered by a Commission composed of one representative from the State of Wyoming and one representative from the State of Montana . . . and one representative selected by the Director of the United States Geological Survey.”153 No tribal representation on the Commission exists, as no tribes are signatories to the Compact.154
Section III(F) provides the relevant language for instances where Montana and Wyoming end up at loggerheads. This section states:
In case of the failure of the representatives of Wyoming and Montana to unanimously agree on any matter necessary to the proper administration of this Compact, then the member selected by the Director of the United States Geological Survey shall have the right to vote upon the matters in disagreement and such points of disagreement shall then be decided by a majority vote of the representatives of the States of Wyoming and Montana and said member selected by the Director of the United States Geological Survey, each being entitled to one vote.155
151 Id. at art. VI.
152 See, e.g., Winters v. United States, supra note 32, at 576-577. 153 Yellowstone River Compact, supra note 3, at art. III(A). 154 See id. at art. IV; see also art. III.
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Unfortunately, since 1990 the USGS has adopted an abstention policy on voting, resulting in this provision being functionally void.156 Consequently, in instances of disagreement between the two states, litigation remains as the most realistic procedure available for resolution.157
7. Article XI: Power to Amend
The authority for Commissioners to propose amendments to the Compact appears in Article XI. According to this Article, “[t]he provisions of this Compact shall remain in full force and effect until amended in the same manner as it is required to be ratified to become operative as provided in Article XV.”158 Thus, for amendment to occur, like ratification, approval must attained by the state legislatures of Montana, Wyoming, and North Dakota, and then ratified at the federal level by the U.S. Congress.159
III.EQUITY CHALLENGES
Confronting the difficult problem of determining the fair means of allocating the burden of solving the tragedy . . . “is difficult because the tragedy is asymmetric.” People contribute in
different degrees to the problem, and people benefit to different degrees from a solution.160
– Barton H. Thompson Again, as described above and stated in its Preamble, the purpose of the Yellowstone River Compact is equitable apportionment and avoiding present and future controversy.161 A compact that is equitable—i.e., one ensuring signatories share equally in the benefits as well as the burdens during times of drought—arguably works to avoid present and future controversy. Without
156 See, e.g., YELLOWSTONE RIVER COMPACT COMM’N,FIFTY-FIFTH ANNUAL REPORT, p. XIII (2006). 157 See id. (suggesting that the purpose of the dispute resolution process is to resolve administrative questions,
not to interpret the Compact.”).
158 Yellowstone River Compact, supra note 3, at art. XIV. 159 See id.
160 Barton H. Thompson, Jr., Tragically Difficult: The Obstacles to Governing the Commons, STANFORD
LAW SCHOOL 1, 25 (2000).
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equitable apportionment, claims of breach of compact will certainly arise, particularly during low-flow years.
Indeed, Montana already claimed breach of compact against Wyoming in 2007 following several years of severe drought, resulting in the long-lasting Montana v. Wyoming litigation.162 Montana’s claim stemmed from upstream appropriators in Wyoming utilizing more consumptive irrigation techniques in place of traditional methods, leaving less water available through return flows for downstream appropriators in Montana.163 Montana alleged that Wyoming’s increased consumption was not permitted under the Yellowstone River Compact pursuant to Article V(A),164 asserting that “Wyoming’s understanding of the Compact is fundamentally at odds with that of Montana.”165
Barton H. Thompson, the Special Master appointed by the Supreme Court to oversee the litigation, concluded that Wyoming pre-1950 appropriators did not violate the Compact against Montana.166 However, he did determine that post-1950 appropriators in Wyoming, by utilizing improved irrigation methods, violated the Compact against pre-1950 appropriators in Montana along the Tongue and Powder rivers in 2004 and 2006.167 The Supreme Court adopted Special Master Thompson’s recommendations and entered judgment in favor of Montana on February 20, 2018.168
162 Montana Bill of Complaint at 3, ¶¶ 8-11, Montana v. Wyoming, 131 S. Ct. 1765 (2011) (no. 137, Orig.). 163 Montana’s Brief in Support of Motion for Leave to File Bill of Complaint at 15, Montana v. Wyoming,
131 S. Ct. 1765 (2011) (no. 137, Orig.).
164 First Interim Report of the Special Master, supra note 112, at 59.
165 Montana's Brief in Response to Wyoming's Motion to Dismiss Bill of Complaint at 10, Montana v.
Wyoming, 131 S. Ct. 1765 (2011) (no. 137, Orig.).
166 Montana v. Wyoming, 131 S. Ct. 1765, 1784 (2011) (No. 137, Orig.).
167 Second Interim Report of the Special Master, Dkt. 467, Dec. 29, 2014, at 228, Montana v. Wyoming, 131
S. Ct. 1765 (2011) (no. 137, Orig.), available at http://web.stanford.edu/dept/law/mvn/pdf/ No_137_Original_Report_ Dec _ 2014.pdf .
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Despite the eventual resolution, Special Master Thompson noted in his Final Report that “the size of Wyoming’s liability . . . is an indicator of neither the importance of this case to the two states nor the depth of their legal disagreements.”169 Based on Montana and Wyoming’s historical disagreement as to the interpretation and administration of Article V, Thompson anticipated “[i]f past predicts future, the likelihood of future disputes between Montana and Wyoming over Article V(A) deliveries is high.”170
Avoiding future disputes, and in particular, breach of compact claims, is important for two reasons. Principally, awarding compensation for a breach of compact is nearly impossible to calculate because it is invaluable to those who depend on it.171 Moreover, awarding a water remedy is challenging because of the uncertainty of when such excess water will be available.172 Thus, it is essential that the Yellowstone River Compact may proactively adapt to drought stress to avoid retroactive efforts to compensate injured parties.
Unfortunately, the Yellowstone River Compact faces some formidable contemporary challenges that conflict with these purposes. Primarily, diminishing water availability in the basin because of climate change puts additional stress on the vague, outdated, and inequitable apportionment scheme delineated in Article V. Additionally, the uncertainty surrounding tribal water rights in the Yellowstone River Compact creates inherent risk that such rights go unfulfilled during times of shortage.173 This Part first explores some of the hydrologic challenges the Yellowstone Basin will certainly face because of climate change. Next is a discussion of some of the Compact’s deficiencies in light of predicted hydrologic changes. Finally, a comprehensive
169 Final Report of the Special Master, supra note 23, at 2. 170 Id. at 114.
171 Id. at 31. 172 Id.
173 See, e.g., Carla J. Bennett, Quantification of Indian Water Rights: Foresight or Folly? 8 UCLAJ. OF
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summary of the recently resolved Montana v. Wyoming litigation provides evidence of consequences resulting from an inequitable Compact governing a finite resource during times of shortage.
A. Climate Change in the Yellowstone River Basin
Like many water compacts in the west, the Yellowstone River Compact serves as a way to ensure stability in quantification despite an arid climate.174 However, the Yellowstone River Basin receives less water than originally believed at the time of ratification.175 Furthermore, two major factors may affect future water resource availability: unpredictable weather patterns throughout the basin, and continuously warming temperatures in Montana and Wyoming. This section provides context regarding typical climate and weather patterns in the basin before delving into recent and predicted future climate trends in both Wyoming and Montana.
1. Historical Climate
Montana and Wyoming possess relatively dry climates. Wyoming has a semi-arid climate, considered the fifth-driest in the United States.176 Approximately seventy percent of its geographic area receives less than sixteen inches of precipitation per year.177 Similarly, eastern Montana, situated east of the continental divide and fed by the Yellowstone, receives only half the precipitation annually as western Montana.178 Collectively, both states rely heavily on instream
174 Bennett, supra note 17, at 126. 175 Id.
176 S. Gray & C. Andersen, Assessing the Future of Wyoming’s Water Resources: Adding Climate Change to
the Equation, 28 WILLIAM D. RUCKELSHAUS INST. ENV’T. & NAT. RESOURCES 1, 4 (2009), available at www.uwyo.edu/enr.
177 Id.
178 Cathy Whitlock et al., 2017 Montana Climate Assessment, MONTANA INSTITUTE ON ECOSYSTEMS, 1, 21
(Sept. 2017), available at http://live-mca-site.pantheonsite.io/default/files/thumbnails/image/2017-Montana-Climate-Assessment-lr.pdf.
