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Wyoming seeks dismissal of Montana water lawsuit, says only small amount of water at stake

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BILLINGS, Montana — The Wyoming Attorney General's Office is seeking dismissal of an interstate water rights lawsuit pending before the U.S. Supreme Court, arguing the state shouldn't be held liable for what its attorneys call a "trickle" of water at the heart the cross-border dispute.

Montana sued its southern neighbor in 2007 and said upstream Wyoming farmers were taking too much water from a Yellowstone River tributary.

After a 25-day trial last year, a post-trial hearing scheduled in California for May 1 will give the two sides a last chance to make their case to court-appointed special master Barton Thompson Jr. The Stanford University law professor will then make a recommendation before a final decision by the Supreme Court.

Wyoming attorneys in recent court filings urged Thompson to recommend dismissal of the case. They said the potential for actual damages is limited due to the relatively small volumes of water Montana says its farmers were unfairly denied.

Montana's attorneys counter that Wyoming's violations of a 1950 water agreement have been significant and need to be addressed so the dispute doesn't continue.

During four years of low flows on the Tongue last decade, Montana attorneys say the state's farmers were denied a combined 9,723 acre-feet of water, or enough to cover that many acres with a foot of water.

Under the agreement between the states, Montana water users with longstanding legal rights must get their share of water from Yellowstone tributaries before it's made available to more junior users in Wyoming.

A 2011 Supreme Court ruling resolved one aspect of the case: Justices rejected Montana's claim that Wyoming farmers had taken advantage of irrigation improvements to increase their water use beyond what was allowed.

Wyoming Deputy Attorney General James Kaste argued that the remaining aspects of the case amount to "much ado about nothing," since only small volumes of water were involved and Montana irrigators at times failed to store water they claimed to need.

"This case may have been about something important when it was filed, but that part of the case was decided long ago," Kaste wrote.

Also at issue in the dispute is how much water is taken out of the Tongue River system by energy companies drilling for a type of natural gas known as coal-bed methane.

Billions of gallons of water are pumped from underground aquifers to release trapped methane. Wyoming officials have said most of that water is returned to the Tongue River system. But witnesses from Montana testified at trial that the drilling has partially depleted aquifers that feed into the Tongue and its tributaries.

In his order setting the May hearing, Thompson asked attorneys for the two sides to explain how the Supreme Court should deal with "the inevitable uncertainty" in trying to deduce how underground aquifers are affected by drilling.

Montana's 2007 lawsuit initially alleged Wyoming also was taking too much water from a second tributary, the Powder River. But state has not pursued claims specific to the Powder River, focusing instead on alleged damages to farmers along the Tongue.

North Dakota was named as a defendant in the case because it is a party to the Yellowstone River Compact. Montana has made no claims against its neighbor to the east.

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