This post also appears on scotusblog.com
If two states have already split payment of fees and costs running well into six figures to keep a case going before the Supreme Court, but it could be resolved now for a final five-figure amount, is it worth continuing? And if, as interstate river disputes go, this one involves only a drop in the bucket, why go on with it?
The Court raised those questions on Monday about a fight between two western states over use of the waters of a river they share. The Court bluntly suggested that the time may have come to settle.
Last week marked the seventh anniversary of the Court’s agreement to decide whether Wyoming is holding back too much water from the Tongue River, thus depriving downstream Montana of a share it supposedly was guaranteed by an interstate compact reached more than a half-century ago — in 1950. The Court so far has issued one preliminary ruling on the case of Montana v. Wyoming.
A Stanford law professor, Barton H. Thompson, Jr., who as a special master has been processing the case for the Court since review was granted, recently completed a trial on the merits. So far, according to the records in the case, the Court has authorized payments of close to $400,000 for Thompson in fees and expenses. It authorized about half of that amount in its order Monday, and the remainder in earlier installments.
In December, Thompson filed his latest report, a 231-page document plus appendices. He recommended that the Court rule that Wyoming had illegally used small amounts of the Tongue River’s waters for two years — 2004 and 2006.
In terms of the usual dispute over allocation of river waters, measured in millions of acre feet, the special master found that the amounts were merely trickles — a 2004 violation involving only 1,300 acre feet, and a 2006 violation that involved only fifty-six acre feet. So far, he noted, he has suggested conclusions only about legal rights to use the Tongue’s waters.
The next step, Thompson said, would be the remedy phase — just what Wyoming should have to pay to Montana for its excess use of the river water. But, he noted, that would only amount to a damages remedy “as low as five figures.”
The Court formally filed his report on Monday. But its order noted that Thomas has twice told the states to discuss whether “the amount of damages at stake justifies further proceedings.” The fees and expenses. the order said, “could well exceed any recovery.”
Thus, the Court ordered the states to “consider carefully whether it is appropriate for them to continue invoking the jurisdiction of this Court.” Thompson, it said, should “facilitate efforts to resolve” the remaining dispute without holding a damages proceeding.
But, if the parties elect to continue the case, instead of settling, the order spelled out filing dates for responses to Thompson’s trial report.