Bighorn River Water Battle Heats Up

Bad Blood Boiling in Wyoming and Montana—Bighorn River Fishery at stake.

A battle has been brewing between Montana and Wyoming, a fight for water that begins in Wyoming but, subsequently, drains into Montana and supports what many people, including myself, consider to be one of the most standout trout fisheries in the West, the Bighorn River south of Hardin.

If you fish that river often, or even one time, you know what is at stake—the fish need water in the river, adequate winter

flows especially, and Wyoming is not willing to give it. If it weren’t bad enough for anglers, think about the people who live and work along the river, like Duane Schriener who runs Bighorn Fly & Tackle in Fort Smith. His entire existance hangs in the balance.

The fish are at Wyoming’s mercy, too. In the past 10 years the Bighorn fishery has fluctuated wildly beginning with fish counts near 16,000 per mile, dwingling to 8,000 a mile or fewer. And it changed from a fishery domintated by brown trout to a fishery dominated by rainbows. And for a few years there weren’t many fish to be had, but the ones you might land were bruisers. Now, the fish a pretty decent mix of 14-to 20-inchers. But who knows what the fishery will be if Wyoming gets all nasty with the flows into Bighorn Reservoir.

As reported in the Helena Independent and excerpted here,  attorneys from Montana and Wyoming squared off before the U.S. Supreme Court on Monday in a cross-border dispute over how they share the region’s scarce water supplies.

Montana has accused its southern neighbor of taking too much water from the Tongue and Powder rivers, breaking a 1950 agreement between the states.

But justices Monday voiced skepticism when Montana Attorney General Steve Bullock said new irrigation practices had put Wyoming in violation of the agreement.

“The beneficial use is that use by which the water supply is depleted. Well, the use here is irrigation,” Chief Justice John Roberts said as Bullock was presenting his argument. “It doesn’t say irrigation up to the technological development in 1950. … And if they get better at it so they use more (water), well, that’s too bad for you.”

The issue before the court centered on a claim that Wyoming has been consuming more water due to irrigation advances such as center-pivot sprinklers.

Those sprinklers allow farmers to use water more efficiently, by increasing the amount that goes directly to their crops. But they also mean less surplus water comes off of fields — decreasing the “return flow” into rivers that flow downstream to Montana.

Roberts noted that Western water laws lean toward “first come, first serve” — which gives priority to those who hold the earliest water claim.

However, several justices said Monday they didn’t immediately see an equitable solution to the dispute. The court will rule later this year.

Bullock said after Monday’s court session that Montana farmers had given up their priority rights in 1950 out of a belief that the agreement would protect them.

“We gave that up with the hope and expectation that we’d have a fixed supply of water,” he said. “There aren’t any cases that say first come, first served if what that means is you’ve changed the amount of water you’re giving the downstream water users.”

Wyoming Assistant Attorney General Peter Kenneth Michael suggested the case came down to how much water his state’s users were taking out of the Tongue and Powder rivers — not what happens to the water after that.

“In the western United States … 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,” he said.
A court-appointed special master rejected part of Montana’s claim last year. Stanford University law professor Barton Thompson Jr. ruled last year that Wyoming could not be faulted for embracing irrigation improvements that encouraged increased conservation.

The office of the U.S. solicitor general sided with Wyoming on the issue, although it has backed Montana in others aspects of the case.

Once the irrigation issue is resolved, the broader question of Wyoming’s overall water use still needs to be settled.

Attorneys for Wyoming contend some water uses by its residents and businesses was not covered by the 1950 agreement, known as the Yellowstone River Compact.

Justices in October ruled that Montana has raised a valid issue with its lawsuit and rejected Wyoming’s attempt to dismiss the case.

But Montana has yet to make its case in terms of quantifying how much water Wyoming is actually using. State officials say that won’t happen until further legal issues are resolved.

The lawsuit also could have consequences for Wyoming’s natural gas industry. Over the last decade, companies seeking a type of gas known as coal-bed methane have pumped billions of gallons of water from underground aquifers shared by the two states.

Montana contends the companies are draining water that would otherwise feed the Tongue and Powder rivers. A Texas-based energy company, Anadarko Petroleum Corp., attempted to intervene in the case but was denied in October.

Attorneys expect the case to grind on possibly for years before a final ruling.

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