Lawyers for Wyoming and Montana working on resolution to Tongue River lawsuit

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CHEYENNE, Wyoming — Lawyers for Wyoming and Montana are weighing how to proceed in a lawsuit involving a dispute over allocation of water on the Tongue River.

The U.S. Supreme Court last month issued an order asking the states to consider whether they could agree to work things out, considering the costs of continuing to litigate will likely exceed any possible recovery for damages.

Barton Thompson Jr., a Stanford University law professor, has been presiding as a special master over the lawsuit, which Montana filed against Wyoming in 2007.

Thompson in December released a 350-page report to the court recommending that it find Wyoming shorted Montana in water deliveries in only two recent years.

Montana had argued that Wyoming had shorted deliveries at the state line nearly every year since 1950 — the year the two states and North Dakota entered a formal agreement over how to administer water on the Tongue and Powder rivers. But Thompson ruled Wyoming owes Montana only for 1,356 acre-feet of water it failed to deliver in 2004 and 2006.

Wyoming officials maintain that there was surplus water for sale in the Tongue River system in those two years available for $10 an acre-foot. The state maintains that damages in the case should be capped at the value of water in those years, or about $14,000. An acre foot is about 325,000 gallons.

Although Thompson ruled against most of Montana's under-delivery claims, he also ruled that Wyoming must cut off irrigation to lands with water rights established after the 1950 if Montana lands with pre-1950 rights aren't getting fully irrigated. Wyoming officials, however, say most Wyoming water rights on the river are older than that and won't be affected.

The Supreme Court in 2011 handed Montana a setback in the case when it agreed with Thompson that Wyoming irrigators had the right to deplete Tongue River flows by more than they had in 1950. Montana had argued it had been improper for irrigators in Wyoming to start using more efficient sprinkler irrigation, which returns less water to the river than the older practice of flood irrigation.

In its Feb. 23 order, the Supreme Court gave the states 45 days to file any exceptions to Thompson's December report along with supporting briefs.

Montana Attorney General Tim Fox said Friday, "At present, the State of Montana is responding to that order by considering and preparing possible exceptions to the report."

Wyoming Attorney General Peter Michael said this week that he can't comment on what the state is doing in regard to filing any possible exceptions to Thompson's report.

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