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1 Joule: Duq. Energy & Envtl. L.J. 1 (2013)

handle is hein.journals/joule1 and id is 1 raw text is: 




      Allocating   Water  Rights,  Causing   Litigation, and  Ignoring  Conservation:
                                   Montana v. Wyoming

                                   Christine  M. Giuliano


I. INTRODUCTION

       Despite the ever-increasing national and global demands  for water resources, the United

States continues to entertain decades-long negotiation and  litigation to solve interstate water

disputes. These  mechanisms  may  address who  has a right to use what water, and how much  of

that water, but  fail to encourage  states to work  together to deal with  water  scarcity and

conservation. Given  that Alaska and Hawaii are the only two states within the United States that

do not share ground or surface water with others, it is no surprise that the majority of states have,

at one point, been involved in a conflict over interstate waters.' Because of the United States

Supreme  Court's original jurisdiction in these disputes,2 the Court has long advocated that states

try to prevent these disputes by entering into interstate water compacts.3 However, the compacts

often take several years to negotiate, if not decades, and instead become a source of litigation.

The Yellowstone  River Compact   (Compact)  is no exception.

       After sixteen years of drafting and negotiation, Montana, Wyoming,   and North  Dakota

finally ratified the Compact in 195 1.5 Sixty years later, two of the Compact's parties, Montana



        1.     George William Sherk, The Management of Interstate Water Conflicts in the Twenty-First
Century: Is It Time to Call Uncle?, 12 N.Y.U. ENvTL. L.J. 764, 765 (2005); see Josh Clemons, Interstate Water
Disputes: A RoadMap for States, 12 SOUTHEASTERN ENVTL. L.J. 115, 115 (2004).
       2.      See U.S. CONST. art. III, § 2, cl. 2 (In all Cases affecting Ambassadors, other public Ministers
and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.).
       3.      Sherk, supra note 1, at 766.
       4.      See Clemons, supra note 1, at 129-31. Thirty years after the ratification of the Colorado River
Compact, Arizona and California endured twelve years of litigation over a water dispute. Lawrence J. MacDonnell,
Arizona v. California Revisited, 52 NAT. RESOURCES J. 363, 365 (2012); see Arizona v. California, 373 U.S. 546
(1963).
       5.      Montana v. Wyoming, 131 S. Ct. 1765, 1770 (2011) (citing Yellowstone River Compact, art.
V(A)-(B), codified in MONT. CODE ANN. § 85-20-101 (2005); N.D. CENT. CODE §61-23-01 (2005); WYo. STAT.
ANN. § 41-12-601 (2005) [hereinafter Compact]).


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