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water law

Montana v. Wyoming and North Dakota (137, Orig.)

in

Oral argument: Jan. 10, 2011

Original Jurisdiction: On Motion of Montana Excepting the First Interim Report of the Special Master

DOCTRINE OF APPROPRIATION, BENEFICIAL USE, YELLOWSTONE RIVER COMPACT, WATER LAW

In a case that could impact water rights throughout the Yellowstone River system, Montana accused Wyoming of violating the Yellowstone River Compact by consuming water in excess of the amount allotted to it. A Special Master, appointed by the Supreme Court, concluded that Montana had asserted valid claims, but recommended that the Court deny Montana’s claim that Wyoming’s use of improved irrigation techniques violates the Compact, and further recommended that Montana show that it lacks an intrastate remedy before calling on Wyoming to adjust usage. Montana argues that the Compact’s stated purpose to prevent controversy is undermined if upstream appropriators can use more efficient irrigation methods to reduce return flows at the downstream appropriators’ expense, and the need to prove a lack of intrastate remedies places disproportionate burdens on Montana. In response, Wyoming contends that its usage does not conflict with any limits set forth in the Compact, and that public policy supports allowing appropriators to reap the benefits of increased efficiency, especially in dry western regions.

South Carolina v. North Carolina (138, Original)

in

Oral argument: Oct. 5, 2009

Original Jurisdiction: United States Supreme Court

WATER LAW, ORIGINAL JURISDICTION, INTERVENORS, EQUITABLE APPORTIONMENT

The dispute between the South Carolina and North Carolina concerns the equitable apportionment of the Catawba River. The Supreme Court is hearing the case under 28 U.S.C. § 1251, which provides it with original jurisdiction over disputes between states. The narrow issue that the Court will resolve is the right of non-state parties to intervene in litigation between South Carolina and North Carolina. South Carolina opposes the interventions, while North Carolina is in favor of them. Both parties argue their case using a standard the Court articulated in New Jersey v. New York, 345 U.S. 369 (1953). In that case, the Court ruled that in an equitable apportionment action between two States brought under the Court’s original jurisdiction, intervention by a non-state entity is proper only when the putative intervenor demonstrates a compelling interest in its own right, separate from the interests of either of the party states. South Carolina contends that the parties’ interests are insufficiently unique to satisfy the Court’s rule, while North Carolina and the intervenors contend that they have unique interests not represented by either South Carolina or North Carolina. The Court’s ruling will clarify the correct interpretation of the standard set forth in New Jersey v. New York.

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