There is a saying in the West, sometimes attributed to Mark Twain: “Whiskey is for drinking. Water is for fighting over.” Indeed, Westerners have been fighting over this scarce resource for decades, whether in intrastate conflicts like the “California water wars,” famously depicted by Jack Nicholson in Chinatown, or in interstate disputes like those that have regularly erupted among the multiple users of the Colorado River.
In some areas of the world, nations might go to war over water. (Anwar Sadat reportedly said in 1979 that Egypt never would wage war with Israel again unless it was to protect its water resources.) Fortunately, there is a more civilized alternative for interstate water disputes in this country: resolution by the United States Supreme Court. And when that happens, the Supreme Court calls upon an expert to assist it in collecting evidence and navigating the twists and turns of these highly specialized and critically important cases.
In a current dispute over waters of the Yellowstone River system, the Court has turned to water law scholar Barton H. “Buzz” Thompson, Jr., JD/MBA ’76 (BA ’72), Robert E. Paradise Professor of Natural Resources Law. Thompson is the co-author of a leading water law casebook and has contributed a large body of scholarship on environmental and resource issues. He both started the law school’s Environmental and Natural Resources Program and is the inaugural Perry L. McCarty Director of the Stanford Woods Institute for the Environment. Despite these credentials, Thompson did not anticipate the call he received one day in 2008 from Justice Anthony Kennedy (BA ’58), asking him to serve as special master in the case of Montana v. Wyoming.
“This isn’t a position you apply for, and I had no forewarning whatsoever,” says Thompson. “It’s an offer that you don’t expect and certainly don’t refuse.”
Since that call, Thompson has spent hundreds of hours drilling deep into the case and finding a new appreciation for the precious resource we so often take for granted. One of the central controversies pits Wyoming energy companies, who pump billions of gallons of water from underground aquifers to release a type of natural gas known as coal bed methane, against Montana ranchers and farmers, who argue that the pumping is affecting stream flows.
“I have taught water law for over three decades and consulted for governments, businesses, and environmental groups on a variety of water issues,” says Thompson. “But until I was a special master, I honestly didn’t realize how precious every single drop of water is in many parts of the Western U.S. Every gallon can make or break a person’s livelihood in rural areas with little water.”
Having recently completed the trial in the liability phase of the case, Thompson is now poring over the record and preparing his recommendations to the Supreme Court; it’s a painstaking process that will take several months.
Thompson’s role as special master on such a crucial and timely case cannot be overstated. “This is a dispute among sovereign states over a shared resource that is critical to the states’ citizens and economies, and both Montana and Wyoming have invested enormous resources into presenting their cases,” he says. “The issues, moreover, raise complex issues of law and fact.”
The Role of the Special Master
The framers of the Constitution thought such disputes sufficiently sensitive and important that lawsuits between states fall within the Court’s original and exclusive jurisdiction under Article III, section 2. “The Court takes such cases very seriously,” says Thompson. “Resolving disputes between sovereign states is an incredibly important but often overlooked responsibility of the Court. It is the only mechanism available to states to resolve fundamental disagreements between them.”
Such cases are also rare. The caption in Montana v. Wyoming reads “No. 137, Original,” meaning that it is only the 137th original jurisdiction case in the more than 200 years since the adoption of the Constitution.
Most original jurisdiction cases involve disputes over either borders or interstate waterways. And, in today’s climate of increasing population and widespread drought, arid Western states are even more apt than in the past to face competing claims to shared water resources.
Montana v. Wyoming involves just such a dispute. The two states—along with North Dakota, which is a named defendant but not directly involved in the controversy—entered into a “compact” or agreement to resolve the rights of all three states to the waters of the Yellowstone River and its tributaries. Ratified by Congress in 1951, the Yellowstone River Compact apportions the waters of the river’s principal tributaries among the states. Montana alleges that Wyoming, which is the upstream state, violated Montana’s rights under the compact by irrigating new acres, constructing new storage facilities, withdrawing and pumping new groundwater, and increasing water consumption on existing acres, all to the detriment of existing users in Montana.
“Originally, the Supreme Court heard these cases entirely on its own,” says Thompson, “but today it does not have the time to preside over a trial and hear all of the separate motions that are filed in a normal litigation.”
And that’s where the special master comes in.
“Basically, the special master compiles the facts, hears the initial legal argument, and makes recommendations on the facts and the law to the Supreme Court,” Thompson explains. “The states then have the opportunity to file ‘exceptions’ to the special master’s report to the Court, and the Court may agree to hear oral argument on the exceptions, if it chooses. Ultimately, it is the justices who make the decisions and resolve the dispute.”
Thompson had no real idea of how the proceedings would unfold when he accepted the position. Despite the centrality of the special master’s role, the appointment comes with precious little direction. “The only formal guidance that a special master receives is in Supreme Court Rule 17,” Thompson notes. “And that rule provides merely that special masters should look to the federal rules of civil procedure and evidence for guidance. Thankfully, prior original jurisdiction cases also provide some direction.”
A High-Stakes Dispute
When Thompson was appointed, the first order of business was to deal with a number of pre-trial motions, including one that Wyoming had already filed to dismiss the complaint. That involved the parties submitting voluminous memoranda over several months, followed by hearings in a “neutral” state. Thompson heard motions in 2009 both in the Tenth Circuit’s courtroom in Denver, Colorado, and in Stanford Law School’s moot courtroom in October of the same year.
Unlike a trial court judge, Thompson did not decide the motions on his own but made recommendations to the Court. As he explains, “Special masters are required to file interim reports any time there is a decision involving central issues in the case. That way the Supreme Court can make sure it agrees with the direction the proceeding is going and can make any course corrections before the next stage of the case. Having the Supreme Court address key issues at an early stage can also encourage settlement discussions.”
Thompson spent several months drafting his conclusions and recommendations on the various motions. The 100-plus-page “First Interim Report of the Special Master” was prepared in the specialized format of a Supreme Court brief and submitted on February 10, 2010.
Although Thompson ruled primarily for Montana—recommending that the Court deny Wyoming’s motion to dismiss, grant in part Montana’s motion for partial summary judgment, and deny a motion to intervene—Montana took exception to a few of the rulings for Wyoming. The Supreme Court conducted a hearing on one of the exceptions, ultimately accepting Thompson’s recommendation in 2011 in a 7-1 vote. Justice Thomas wrote the majority opinion, with Justice Scalia dissenting; Justice Kagan abstained because she had been solicitor general when Thompson heard the motions.
With the case finally back in his court (so to speak), Thompson worked to further narrow the case, set a discovery schedule, and oversaw that discovery. The case finally went to trial in Billings, Montana, this past fall. By this point, Montana’s complaints focused on the waters of the Tongue River.
“Issues about water rights may be arcane to some people,” says Thompson, “but the overall importance to the states is huge.” The trial was heavily attended by local landowners, many of whom had seen their supply of water from the Tongue River shut off because of low water flows. And the attorney generals of both states were in the courtroom at times.
“That doesn’t happen very often,” Thompson notes.
Not surprisingly, the states had very different views of the issue. Missoulian.com reported Montana’s attorney general as saying that farmers and ranchers in his state were “being denied their ‘lifeblood’ ” by Wyoming’s upstream use, while an attorney representing Wyoming accused Montana of “wasting enough water to more than satisfy its needs.”
The trial lasted for 27 days over portions of eight weeks and included testimony from about 50 witnesses. Closing arguments took place on May 1 in the law school’s moot courtroom, followed by a presentation and Q&A session with the attorneys general of both Montana and Wyoming.
As Thompson prepares his final report to the Supreme Court, which he hopes to file this summer, he takes stock of this case and the implications the Court’s ruling will have on water users.
“The stakes for the local users are obviously enormous,” says Thompson. “But interstate water disputes, even when they focus on local facts and law, inevitably have implications for the West as a whole.” SL