No. 137, Original · · · ·· IN THE SUPREME COURT OF TH

· · · · · · · · · ·· No. 137, Original·· · · ·· IN THE SUPREME COURT OF THE UNITED STATES·· · · · · · · · · VOLUME 22 OF 25 VOLUMES·· · · · · · · TRANSCRIPT OF TRIAL PROCEEDINGS··_______________________________________________________·· · · · · · · · · · · STATE OF MONTANA· · · · · · · · · · · · · · · · · · · · · Plaintiff,· · · · · · · · · · · · · ·· v.·· · · · · · · · · · · STATE OF WYOMING·· · · · · · · · · · · · · · and·· · · · · · · · ·· STATE OF NORTH DAKOTA· · · · · · · · · · · · · · · · · · · · · Defendants.·_______________________________________________________···· · · · BEFORE THE HONORABLE BARTON H. THOMPSON, JR.· · · · · · · · · · ·· Special Master· · · · · · · · · · Stanford, California···· · · · · James F. Battin United States Courthouse· · · · · · · · ·· 2601 2nd Avenue North· · · · · · · · · Billings, Montana 59101· · · · · · · 8:35, Tuesday, November 26, 2013····· · · · · · · · · Vonni R. Bray, RPR, CRR· · · · · · · · · · · · P.O. Box 125· · · · · · · · · · · Laurel, MT 59044· · · · · · · · · · (406) 670-9533 Cell· · · · · · · · · ·· (888) 277-9372 Fax· · · · · · · · · · [email protected]··· · · ·· Proceedings recorded by machine shorthand·· Transcript produced by computer-assisted transcription·

Page 5101

· · · · · · · · · · · · APPEARANCES·1··· ··FOR PLAINTIFF STATE OF MONTANA:·2··· ·· · · · · · Mr. John B. Draper, Special Assistant AG·3·· · · · · · Montgomery & Andrews· ·· · · · · · 325 Paseo de Peralta, 87501·4·· · · · · · P.O. Box 2307· ·· · · · · · Santa Fe, NM 87504-2307·5·· · · · · · Telephone: (505) 986-2525 Fax: (505) 982-4289· ·· · · · · · E-mail: [email protected]·6··· ·· · · · · · Mr. Jeffrey J. Wechsler, Special Assistant AG·7·· · · · · · Montgomery & Andrews· ·· · · · · · 325 Paseo de Peralta, 87501·8·· · · · · · P.O. Box 2307· ·· · · · · · Santa Fe, NM 87504-2307·9·· · · · · · Telephone: (505) 986-2637 Fax: (505) 982-4289· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Mr. Cory Swanson11·· · · · · · Deputy Attorney General· ·· · · · · · 602 Sanders12·· · · · · · P.O. Box 201401· ·· · · · · · Helena, MT 5962413·· · · · · · Telephone: (406) 444-4774 Fax: (406) 444-3549· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Ms. Anne Winfield Yates15·· · · · · · DNRC Chief Legal Counsel· ·· · · · · · 1625 Eleventh Avenue16·· · · · · · P.O. Box 201601· ·· · · · · · Helena, MT 59620-160117·· · · · · · Telephone: (406) 444-0503 Fax: (406) 444-2684· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Mr. Kevin R. Peterson19·· · · · · · DNRC Legal Counsel· ·· · · · · · 1625 Eleventh Avenue20·· · · · · · P.O. Box 201601· ·· · · · · · Helena MT 59620-160121·· · · · · · Telephone: (406) 444-5785 Fax: (406) 444-2684· ·· · · · · · E-mail: [email protected]··· ··23··· ··24··· ··25·

Bray Reporting - (406) 670-9533

Page 5102

· · · · · · · · ·· APPEARANCES CONTINUED·1··· ··FOR DEFENDANT STATE OF WYOMING:·2··· ·· · · · · · Mr. James C. Kaste·3·· · · · · · Water & Natural Resources Division· ·· · · · · · Sr. Assistant Attorney General·4·· · · · · · 123 Capitol Building· ·· · · · · · Cheyenne, WY 82002·5·· · · · · · Telephone: (307) 777-3535 Fax: (307) 777-3542· ·· · · · · · E-mail: [email protected]·6··· ·· · · · · · Mr. Chris Brown·7·· · · · · · Water & Natural Resources Division· ·· · · · · · Sr. Assistant Attorney General·8·· · · · · · 123 Capitol Building· ·· · · · · · Cheyenne, WY 82002·9·· · · · · · Telephone: (307) 777-3406 Fax: (307) 777-3542· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Mr. Andrew J. Kuhlmann11·· · · · · · Water & Natural Resources Division· ·· · · · · · Assistant Attorney General12·· · · · · · 123 Capitol Building· ·· · · · · · Cheyenne, WY 8200213·· · · · · · Telephone: (307) 777-3537 Fax: (307) 777-3542· ·· · · · · · E-mail: [email protected]··· ··15··· ··16··· ··FOR DEFENDANT STATE OF NORTH DAKOTA:17··· ·· · · · · · Ms. Jennifer L. Verleger18·· · · · · · Assistant Attorney General· ·· · · · · · 500 North 9th Street19·· · · · · · Bismarck, ND 58501-4509· ·· · · · · · Telephone: (701) 328-3640 Fax: (701) 328-430020·· · · · · · E-mail: [email protected]· ··21··· ··22··· ··23··· ··24··· ··25·


Page 5103

· · · · · · · · · · · · ·· INDEX·1··· ·· · · · · · · · · · · · · · · · · · · · · VOLUME· ··PAGE·2··· ··Proceedings ...............................22· · ·5108·3··Certificate of the Court Reporter .........22· · ·5358· ···4··· ···5··· ·· · · · · · · · · ·· INDEX TO WITNESSES·6··· ··FOR THE DEFENDANT:· · · · · · · · · · ··VOLUME· ··PAGE·7··· ··PATRICK TYRRELL·8··· ··Direct Examination by Mr. Brown ...........22· · ·5109·9··Cross-Examination by Mr. Draper ...........22· · ·5280· ··Examination by the Special Master .........22· · ·534010··Recross-Examination by Mr. Draper .........22· · ·5351· ··Redirect Examination by Mr. Brown .........22· · ·535311··· ··12··· ··13··· ··14··· ··15··· ··16··· ··17··· ··18··· ··19··· ··20··· ··21··· ··22··· ··23··· ··24··· ··25·


Page 5104

· · · · · · · · · ·· INDEX TO EXHIBITS·1··· ··EXHIBIT· · · · · · · · · · · · · · · · ·VOLUME· ··PAGE·2··· ··· M170· ·Briefing for Governor Re: .........22· · ·5194·3·· · · · · Montana's Call Under YRCC by· ·· · · · · Tyrrell (6/14/04)·4·· · · · · (WY100278-100280)· ···5··· M259A··Guidance Document for CBM .........22· · ·5142· ·· · · · · Related Groundwater Permit·6·· · · · · Applications, Dated March 2004· ···7··· M259B··Revision to Policy Memo Re: .......22· · ·5141· ·· · · · · Permitting Requirements for CBM·8·· · · · · Produced Wells· ···9··· M407· ·Revised Interim Policy Memo Re: ...22· · ·5139· ·· · · · · SEO Permitting Requirements for10·· · · · · Water Produced During the Recovery· ·· · · · · of Coalbed Methane (5/29/01)11·· · · · · (WY82541-082507)· ··12··· M411· ·Letter from Lisa Lindemann to .....22· · ·5330· ·· · · · · Joseph Kayser (9/10/10) (Depo Ex.13·· · · · · 94) (WY018201-18206)· ··14··· W075· ·E-mail Dated May 25, 2004, From ...22· · ·5186· ·· · · · · Bob Davis to Pat Tyrrell Re:15·· · · · · Tongue River Data (MT13286-13287)· ··16··· W079· ·E-mail Dated June 14, 2004, From ..22· · ·5198· ·· · · · · Pat Tyrrell to State Engineer's17·· · · · · Office Staff and Hugh McFadden· ·· · · · · (WY28638)18··· ··· W080· ·E-mail Series Dated June 14, ......22· · ·519919·· · · · · 2004, Between Pat Tyrrell, Sue· ·· · · · · Lowry, Mike Whitaker (WY28640)20··· ··· W081· ·E-mail Dated June 15, 2004, from ..22· · ·520121·· · · · · Mike Whitaker to Pat Tyrrell & Sue· ·· · · · · Lowry Re: Tongue River Charts22·· · · · · (WY28384)· ··23··· ··24··· ··25·


Page 5105

· · · · · · · ·· INDEX TO EXHIBITS (Cont.)·1··· ··EXHIBIT· · · · · · · · · · · · · · · · ·VOLUME· ··PAGE·2··· ··· W082· ·Email from Michael Whitaker to ....22· · ·5201·3·· · · · · Pat Tyrrell & Sue Lowry Re: Stream· ·· · · · · Flows (Depo Ex. 119)·4··· ··· W090· ·E-mail Dated June 23, 2004, from ..22· · ·5206·5·· · · · · Pat Tyrrell to Mike Whitaker Re:· ·· · · · · Storage Confidential (WY28662)·6··· ··· W091· ·Email from Jack Stults to .........22· · ·5207·7·· · · · · Patrick Tyrrell Re: Governors'· ·· · · · · Meeting Re: WRC (WY28631)·8··· ··· W092· ·E-mail Dated June 23, 2004, from ..22· · ·5205·9·· · · · · Barb Warburton to Pat Tyrrell Re:· ·· · · · · Agency Update Memo (WY31398)10··· ··· W097· ·Email from Patrick Tyrrell to .....22· · ·520711·· · · · · Sue Lowry, Huh McFadden, and· ·· · · · · Michael Whitaker Re: 6/30 Changes12·· · · · · (WY28011)· ··13··· W098· ·Email from Patrick Tyrrell to .....22· · ·5210· ·· · · · · Jack Stults Re: Spreadsheets14·· · · · · (WY28676)· ··15··· W099· ·Email from Jack Stults Re: Draft ..22· · ·5213· ·· · · · · Agenda for Today's Call (WY28352)16··· ··· W104· ·Email from Michael Whitaker Re: ...22· · ·521317·· · · · · Draft Minutes - Confidential· ·· · · · · (WY28620)18··· ··· W109· ·Email from Patrick Tyrrell to .....22· · ·521919·· · · · · Jack Stults Re: Spreadsheets· ·· · · · · (WY28382)20··· ··· W115· ·Email from Patrick Tyrrell to .....22· · ·522721·· · · · · Chris Boswell and Barb Warburton· ·· · · · · Re: Gov Meeting (WY28377)22··· ··· W116· ·Email Dated July 12, 2004, from ...22· · ·522823·· · · · · Pat Tyrrell to Chris Boswell and· ·· · · · · John Masterson Re: Draft Letter to24·· · · · · MT - Confidential (WY28344)· ··25·


Page 5106

· · · · · · · ·· INDEX TO EXHIBITS (Cont.)·1··· ··EXHIBIT· · · · · · · · · · · · · · · · ·VOLUME· ··PAGE·2··· ··· W118· ·Email from Patrick Tyrrell Re: ....22· · ·5229·3·· · · · · YRCC Meeting Notes (WY28822)· ···4··· W123· ·Email Dated July 26, 2004, From ...22· · ·5232· ·· · · · · Pat Tyrrell to State Engineer's·5·· · · · · Office Staff Re: Phone Call· ···6··· W124· ·Email Dated July 26, 2004, From ...22· · ·5231· ·· · · · · Jack Stults to Pat Tyrrell Re:·7·· · · · · Phone Call (WY28585)· ···8··· W125· ·Email Dated July 26, 2004, from ...22· · ·5231· ·· · · · · Pat Tyrrell to Sue Lowry, Hugh·9·· · · · · McFadden, Mike Whitaker Re:· ·· · · · · Montana Letter (WY28546)10··· ··· W135· ·Letter to Governor Freudenthal ....22· · ·523811·· · · · · Re: Agency Update (WY30995-30998)· ··12··· W140· ·Email Dated April 14, 2005, from ..22· · ·5241· ·· · · · · Bill Horak to Pat Tyrrell Re:13·· · · · · Independent Conservations Re:· ·· · · · · Compact Administration Issues14·· · · · · (WY30914-30915)· ··15··· W144· ·Email With Attachment Dated July ..22· · ·5246· ·· · · · · 28, 2005, from Pat Tyrrell to Sue16·· · · · · Lowry Re: Briefing for Today· ·· · · · · (WY28040-28041)17··· ··· W157· ·Email from Michael Whitaker to ....22· · ·526118·· · · · · Patrick Tyrrell, Harry LaBonde,· ·· · · · · and Sue Lowry Re: Montana Letter19·· · · · · (WY28550-28555)· ··20··· W169· ·Email from Pat Tyrrell to Sue .....22· · ·5251· ·· · · · · Lowry Re: June 2, 2006, Meeting21·· · · · · (Depo Ex. 122)· ··22··· W196· ·State Engineer's Office Bullet ....22· · ·5244· ·· · · · · Points for Call with Governor23·· · · · · Schweitzer on June 27, 2005 (Depo· ·· · · · · Ex. 120)24··· ··25·


Page 5107

· · · · · · · ·· INDEX TO EXHIBITS (Cont.)·1··· ··EXHIBIT· · · · · · · · · · · · · · · · ·VOLUME· ··PAGE·2··· ··· W313· ·Questions for Montana at June 10 ..22· · ·5190·3·· · · · · Meeting, Version 4, Dated June 9,· ·· · · · · 2004 (Depo Ex. 118)·4··· ··· W322· ·Briefing For Governor .............22· · ·5211·5·· · · · · Freudenthal by Pat Tyrrell, Dated· ·· · · · · June 29, 2004, Update on Montana's·6·· · · · · "Call" Under the YRC· ·· · · · · (WY31326-31329)·7··· ··· W325· ·Briefing for Governor .............22· · ·5214·8·· · · · · Freudenthal by Pat Tyrrell, Dated· ·· · · · · July 1, 2004 (Depo Ex. 121)·9··· ··· W326· ·Yellowstone River Compact .........22· · ·522010·· · · · · Discussions, iBAG Meetings· ·· · · · · Presentation, Dated July 6 and 7,11·· · · · · 2004 (WY37555-37572)· ··12··· W334B··Update Briefing Prepared by the ...22· · ·5144· ·· · · · · Groundwater Division13··· ··· W363· ·Discussions with Montana on the ...22· · ·525314·· · · · · North Platte Pipeline· ·· · · · · (WY27347-27351)15··· ··· W364· ·Submission to Governor's Office ...22· · ·525816·· · · · · on Discussions with Montana on the· ·· · · · · North Platte Pipeline17·· · · · · (WY31290-31292)· ··18··· W408· ·Pennoyer or Interstate Ditch ......22· · ·5137· ·· · · · · Water Rights, Prepared by Bill19·· · · · · Knapp/Deb Reed· ··20··· W412· ·Board of Control 2011 .............22· · ·5119· ·· · · · · Organizational Chart (Depo Ex. 94)21··· ··· W424· ·Wyoming State Engineer's Office ...22· · ·511722·· · · · · 2012 Programmatic Organizational· ·· · · · · Chart (Depo Ex. 92)23··· ··24··· ··25·


Page 5108

· · · · ·· TUESDAY, NOVEMBER 26, 2013, 8:35 A.M.·1·

· · · · · · SPECIAL MASTER:··Okay.··Good morning.·2·

·Everyone can be seated.·3·

· · · · · · So is there anything to discuss before the·4·

·first witness this morning?·5·

· · · · · · MR. DRAPER:··Mr. Swanson just reminded me.··I·6·

·wanted to confirm the witness schedule that we're·7·

·looking at.··We've got Mr. Tyrrell this morning.··And·8·

·then if we have time, we have Mr. Fritz?·9·

· · · · · · MR. BROWN:··Correct.10·

· · · · · · MR. DRAPER:··Is that right?··And then11·

·following Mr. Fritz would be when we come back.··Who is12·

·that going to be?13·

· · · · · · MR. BROWN:··Well, we had indicated Mr. Bruce14·

·Williams.··We're still not sure if he's going to be15·

·available.··So he's up in the air.··And we're not sure16·

·it's going to be necessary to call him.··So we'll make17·

·that assessment over the break.··At a minimum it will18·

·be Mr. Fritz and Mr. Hinckley.19·

· · · · · · MR. DRAPER:··Very good.··Thank you.20·

· · · · · · SPECIAL MASTER:··Excellent.··So why don't we21·

·get started.··So you want to -- Mr. Tyrrell is your22·

·next witness?23·

· · · · · · MR. BROWN:··Absolutely.··We'd like to call24·

·Wyoming State Engineer Pat Tyrrell.25·


PATRICK TYRRELL - November 26, 2013Direct Examination by Mr. Brown

Page 5109

· · · · · · SPECIAL MASTER:··Mr. Tyrrell, you can come up·1·

·here and be sworn in.·2·

· · · · · · (Pat Tyrrell sworn.)·3·

· · · · · · THE CLERK:··Have a State seat, please.··State·4·

·your name and spell it for the record.·5·

· · · · · · MR. DRAPER:··And, Your Honor, I will be doing·6·

·the cross-examination for Mr. Tyrrell.·7·

· · · · · · SPECIAL MASTER:··Okay.··Thank you,·8·

·Mr. Draper.·9·

· · · · · · THE WITNESS:··My name is Patrick,10·

·P-a-t-r-i-c-k,Tyrrell,T-y-r-r-e-l-l.··The other11·

·question was position?··Or just spell the name?12·

· · · · · · THE CLERK:··Just spell the name.13·

· · · · · · SPECIAL MASTER:··Anyway, good morning,14·

·Mr. Tyrrell.··And I've been butchering your name, I15·

·think, for the entire trial.··So I'll try and get it16·

·right today.17·

· · · · · · THE WITNESS:··Call me whatever you'd like.18·

·I'll be fine.19·

· · · · · · SPECIAL MASTER:··It's nice to see you again.20·

· · · · · · · · · · · PATRICK TYRRELL,21·

·having been first duly sworn, testified as follows:22·

· · · · · · · · · ·· DIRECT EXAMINATION23·

·BY MR. BROWN:24·

· · ·· Q.· ·Good morning, Mr. Tyrrell.··And as you've25·



Page 5110

·observed, I suppose, with all the testimony that you've·1·

·watched in this case, we're going to start out with·2·

·some background information so the Special Master can·3·

·get to know you a little better.·4·

· · · · · · And, I think we've already indicated you're·5·

·currently the Wyoming State Engineer; right?·6·

· · ·· A.· ·Yes.·7·

· · ·· Q.· ·And let's go through a little bit of your·8·

·education history.··If you could please describe for us·9·

·your education out high school.··First, describe where10·

·you grew up.11·

· · ·· A.· ·I grew up in Cheyenne, Wyoming, went to12·

·Central High School there.··And in 1975 went to the13·

·University of Wyoming, and studied mechanical14·

·engineering, graduating in 1979.··I worked for a year15·

·and a half after that, and then went back to the16·

·University in late 1980, early 1981 to study for a17·

·master's in the civil engineering program in water18·

·resources.19·

· · ·· Q.· ·Okay.··And what kind of coursework did that20·

·study include?21·

· · ·· A.· ·Well, after I effectively changed majors, I22·

·had some coursework to make up in hydrology,23·

·hydraulics, things like that, soil mechanics.··But then24·

·in my graduate courses I was taking courses in instream25·



Page 5111

·flows.··I took three classes in groundwater hydrology.·1·

·One from the civil engineering department, two from the·2·

·College of Geology.·3·

· · ·· Q.· ·And you got your master's in 1982?·4·

· · ·· A.· ·Yes.·5·

· · ·· Q.· ·And what did you do after that?·6·

· · ·· A.· ·I finished in August of 1982 and went to work·7·

·shortly after that with Western Water Consultants in·8·

·Laramie.··And worked there in water resources·9·

·consulting until 1989.10·

· · · · · · At that point, I went to work for a firm, a11·

·gentleman I knew in Minneapolis, for two years.··Did12·

·consulting work for Wenck Associates.13·

· · ·· Q.· ·What kind of work did you do first for the14·

·Western Water Consultants and then for the firm in15·

·Minneapolis?16·

· · ·· A.· ·Water-related work.··At Western Water, we had17·

·a lot of water development commission contracts that we18·

·worked on.··So it was feasibility studies.··We would19·

·work on dam projects, or I studied a dam site on20·

·Gooseberry Creek down by Worland.··So -- and we would21·

·do some smaller construction projects.··But it was22·

·largely water development type work.23·

· · · · · · I worked a little bit on the early studies24·

·that ultimately resulted in the Tie Hack Dam Site, for25·



Page 5112

·example.··So it was water related in that fashion.·1·

· · · · · · We also did some contract work for coal mines·2·

·in the Powder River Basin doing sediment control·3·

·designs, pre-mining hydrology, topics like that.·4·

· · ·· Q.· ·How about with regard to the firm in·5·

·Minneapolis?·6·

· · ·· A.· ·Did some water resources work there, some·7·

·urban drainage and runoff.··Also worked on a couple of·8·

·pump and treat groundwater cleanup projects.··One in·9·

·Minnesota, and one in Colorado.10·

· · ·· Q.· ·Okay.··How long did you work in Minneapolis?11·

· · ·· A.· ·Two years.12·

· · ·· Q.· ·What did you do after that?13·

· · ·· A.· ·I came back to Wyoming.··I had the ability to14·

·move back to my home state, basically, and go to work15·

·for Arco Coal Company at that time, who was the16·

·operator of the Black Thunder Mine and the Coal Creek17·

·Mine in the Tongue River Basin, as their regulatory18·

·affairs supervisor.19·

· · · · · · And in that job I managed a small staff of20·

·folks of professionals, largely, who made sure that the21·

·mine was in compliance with all of its permits, that it22·

·had all the permits that it needed.··Air quality,23·

·mining permits through our Land Quality Division State24·

·Engineer permits, the water quality permits through25·



Page 5113

·DEQ.··We would accompany various agency personnel when·1·

·they would come out to do inspections of the mine.··So·2·

·that was my job at Arco Coal.·3·

· · ·· Q.· ·You mentioned having to deal with permitting·4·

·with the State Engineer's Office.··What did that·5·

·entail?·6·

· · ·· A.· ·A coal mine has a number of water resources·7·

·related concerns that have to be addressed, often·8·

·through permits.··Those would include permits for·9·

·groundwater use at the mine, which would include pit10·

·dewatering; dewatering of the coal ahead of the pit;11·

·storage of that produced water in sediment control12·

·reservoirs, which may have been in the backfill or out13·

·of the mine proper.14·

· · · · · · We had to permit any reservoirs that we had15·

·hoped to leave in the post-mining environment, the16·

·post-mine topography.··And we would permit -- design17·

·and permit bypasses around the mine.··Coal mines often18·

·would begin and then mine up a creek channel because19·

·that's where the overburden was lowest.··And when20·

·you're mining up a creek channel and then you get a21·

·rainstorm, you have to have some way to get the water22·

·that is now coming at the mine, keep it out of the pit,23·

·move it around the mine so that number one, it doesn't24·

·damage your operations; and, number two, if there are25·



Page 5114

·downstream water rights you got to keep that creek·1·

·essentially connected and move water on around you.·2·

· · · · · · So there were a number of items like that·3·

·that we would deal with the State Engineer's Office on.·4·

· · ·· Q.· ·As part of that position, were you required·5·

·to monitor groundwater levels?·6·

· · ·· A.· ·We did.··Both as pre-mining data collection·7·

·and during mining.··We had wells completed in the·8·

·overburden and the coal.··We would be dewatering the·9·

·coal primarily, but we also wanted to monitor the10·

·overburden.··And I'm sure in the old mining documents11·

·there are data for what we would call the coal aquifer12·

·and then the overburden for the Wasatch Formation.13·

· · ·· Q.· ·How long did you work at the Black Thunder14·

·Mine?15·

· · ·· A.· ·Little over four years; from 1991 to 1995.16·

· · ·· Q.· ·What did you do after that?17·

· · ·· A.· ·Did a little bit of traveling.··And then when18·

·I was in Cheyenne at the end of the summer, October or19·

·thereabouts, of 1995, I had a series of discussions20·

·with the States West Water Resources Corporation21·

·people.··It is another small water-related consulting22·

·firm in Cheyenne, similar to the Western Water23·

·Consultants I worked for earlier, and went to work for24·

·them in Cheyenne in October of 1995.25·



Page 5115

· · ·· Q.· ·And what kind of work did you do for States·1·

·West?·2·

· · ·· A.· ·Very similar to what we did at Western Water.·3·

·I was project manager at this time.··And I managed a·4·

·couple of the bigger projects, were a Green River Basin·5·

·water planning study for the state.··The state of·6·

·Wyoming's water development program.··We heard·7·

·yesterday about the Powder Tongue water plan.··I was·8·

·the lead engineer on the first plan of that type for·9·

·the Green River Basin in Wyoming.10·

· · · · · · I also worked on a master plan for the city11·

·of Cheyenne in those years and a couple of smaller12·

·water system construction projects.··Town of Chugwater13·

·municipal water supply, town of Carpenter, things like14·

·that.15·

· · ·· Q.· ·Okay.··And after your work with States West,16·

·what did you do?17·

· · ·· A.· ·In late 2000, I put in my name for the18·

·position of State Engineer and went through an19·

·interview process and was selected, appointed by20·

·Governor Geringer at that time.··And I started in this21·

·position in January of 2001.22·

· · ·· Q.· ·Okay.··And other folks have testified in this23·

·case, kind of a general organization of the State24·

·Engineer's Office.··But I think it's helpful to have25·



Page 5116

·you kind of pull it together for us.··Take a look at·1·

·Exhibit W424.·2·

· · · · · · MR. BROWN:··And today I believe, Your Honor,·3·

·you should have all of these up in front of you.·4·

· · · · · · SPECIAL MASTER:··I do.··Thank you.·5·

·BY MR. BROWN:·6·

· · ·· Q.· ·Do you recognize that document?·7·

· · ·· A.· ·I do.·8·

· · ·· Q.· ·What is it?·9·

· · ·· A.· ·This is our programmatic organizational chart10·

·as of about a year and a half ago.11·

· · ·· Q.· ·Okay.··And was it -- has this structure12·

·essentially been the same since you became the State13·

·Engineer?14·

· · ·· A.· ·Not exactly.··When I started in '01, one of15·

·the things that I did was review our structure at that16·

·time.··This chart reflects some changes I made early17·

·on, including the creation of the Supports Services18·

·group, which pull together all of our support for all19·

·the other divisions.··Basically it was sort of the IT20·

·group.21·

· · · · · · And I created the Interstate Streams22·

·Division.··At the time I started the interstate streams23·

·work was done ad hoc, is probably not quite the right24·

·word, but it wasn't an organized entity.··There were25·



Page 5117

·several people reporting directly to Jeff before I got·1·

·there.·2·

· · · · · · And to me, the interstate streams work was·3·

·important enough it deserved its own division.··And now·4·

·it is its own division.··Its administrator is Sue Lowry·5·

·who was up here yesterday, and she has four employees.·6·

· · · · · · MR. BROWN:··And before we go on, I'd like to·7·

·offer Exhibit W424.·8·

· · · · · · MR. DRAPER:··No objection.·9·

· · · · · · SPECIAL MASTER:··Exhibit W424 is admitted.10·

· · · · · · · · · · · (Exhibit W424 admitted.)11·

·BY MR. BROWN:12·

· · ·· Q.· ·And just a couple of brief questions with13·

·regard to this organizational chart.··You'll see14·

·there's a box labeled Board of Control?15·

· · ·· A.· ·I do.16·

· · ·· Q.· ·Is that the Board of Control itself or17·

·something else?18·

· · ·· A.· ·That is the administrative side of the Board19·

·of Control.··And we call it that because it's a staff20·

·of people that exist largely to support the board in21·

·between board meetings.22·

· · · · · · These are the folks who will do review of23·

·petitions that come in from appropriators.··They will24·

·help the superintendents, get their paperwork together,25·



Page 5118

·do consumptive use reports, make sure that all the·1·

·consents that are necessary are received.··So they are·2·

·essentially a larger administrative staff for the·3·

·individual board members of the Board of Control, which·4·

·includes the four superintendents and myself.·5·

· · ·· Q.· ·Okay.··Going to have you look at Exhibit·6·

·W412.··And do you recognize that document?·7·

· · ·· A.· ·I do.·8·

· · ·· Q.· ·What is it?·9·

· · ·· A.· ·This is the organizational chart for the10·

·Board of Control, which the field side of our office.11·

·The Board of Control proper, when it's impaneled, is12·

·the four superintendents and myself.··Each13·

·superintendent has a home office.··I think we've been14·

·through this in testimony, Division I is the North15·

·Platte, basically, and the Niobrara.··That office is in16·

·Torrington.··So under Water Division I you would see17·

·the types of employees that are there.··Little bit18·

·bigger in Division I because of the North Platte19·

·compliance obligations.20·

· · · · · · Water Division II is up here.··It's the21·

·northeast part of the state between the North Platte22·

·and the crest of the Big Horns, approximately.··And23·

·that's Carmine LoGuidice, current superintendent here24·

·downtown in Sheridan.25·



Page 5119

· · · · · · Water Division III is Loren Smith, who I·1·

·believe we met last week.··He's in Riverton.··Water·2·

·Division III is the Big Horn River system.·3·

· · · · · · And the Water Division IV is in Cokeville.·4·

·That's the Snake, the Green, and the Bear, basically.·5·

· · ·· Q.· ·Okay.··And this organizational chart was·6·

·accurate at least as of 2001?·7·

· · ·· A.· ·Yes.·8·

· · · · · · MR. BROWN:··I'd like to offer Exhibit W412.·9·

· · · · · · MR. DRAPER:··No objection, Your Honor.10·

· · · · · · SPECIAL MASTER:··Exhibit W4112 is admitted11·

·into evidence.12·

· · · · · · MR. BROWN:··Your Honor, I just might mention,13·

·you said 4112.14·

· · · · · · SPECIAL MASTER:··Oh, 412.··Nothing like15·

·adding an additional number.16·

· · · · · · MR. BROWN:··I think it feels like sometimes17·

·we've got 4000 exhibits.18·


·BY MR. BROWN:20·

· · ·· Q.· ·Okay.··Looking at that exhibit, and perhaps21·

·we don't need to look at the exhibit, can you just22·

·describe the reporting relationships with regard to the23·

·hydrographer commissioners and the superintendents and24·

·yourself?25·



Page 5120

· · ·· A.· ·The reporting relationship is the·1·

·hydrographer commissioners or the water commissioners,·2·

·sometimes in shorthand, report up the ladder to their·3·

·superintendent.··And we also have an assistant·4·

·superintendent in many of these -- or all of these·5·

·divisions.··But in essence, they all roll up through·6·

·the superintendent who, from a reporting structure,·7·

·then, on personnel matters, budget matters, et cetera,·8·

·report to me.·9·

· · ·· Q.· ·Now, Wyoming Constitution states that you, as10·

·the State Engineer have the general supervision of the11·

·waters of the state and the officers connected with its12·

·distribution.··So do the superintendents of each of13·

·those divisions perform their jobs under your14·

·supervision then?15·

· · ·· A.· ·They do.16·

· · ·· Q.· ·And by statute can you assign them whatever17·

·duties you see fit?18·

· · ·· A.· ·I can.19·

· · ·· Q.· ·And then the hydrographer commissioners, do20·

·they then report to and are directed by the21·

·superintendents?22·

· · ·· A.· ·They are.23·

· · ·· Q.· ·Have you ever authorized a hydrographer24·

·commissioner or a superintendent to regulate Wyoming's25·



Page 5121

·waters for the benefit of the State of Montana?·1·

· · ·· A.· ·No.·2·

· · ·· Q.· ·Why not?·3·

· · ·· A.· ·I don't see the mechanism by which I can ask·4·

·them to do that.··They, by statute, absent something·5·

·else, like we might have in the North Platte or the·6·

·Bear, they are not empowered to regulate on·7·

·extraterritorial requests.·8·

· · ·· Q.· ·Are there water commissioners that are·9·

·authorized to regulate Wyoming's waters for the benefit10·

·of another state, other places in Wyoming?11·

· · ·· A.· ·There are.··And a couple of circumstances, I12·

·know Sue talked about the Bear River yesterday.··But13·

·under the Bear River Compact and the procedures that14·

·the states have agreed to there, our field staff, under15·

·the direction of the superintendent, can manage16·

·diversions, regulate diversions in Wyoming under what17·

·was termed a water emergency, for example, in the Bear.18·

· · · · · · In the North Platte, after the settlement19·

·stipulation and modified decree was entered, we had20·

·some regulatory requirements, some compliance21·

·requirements on the North Platte, for example, the call22·

·to fill the federal reservoirs, that requires some23·

·regulation.··And those reservoirs serve some24·

·out-of-state interests and districts in Nebraska.··And25·



Page 5122

·it is my field staff, through that process, that agreed·1·

·upon set of documents that would regulate, for example,·2·

·Wyoming water users in February through April in an·3·

·allocation year.·4·

· · ·· Q.· ·Okay.··Let's kind of back up or not really·5·

·back up, shift gears and talk about regulation within·6·

·the state of Wyoming.··If a water user is unhappy with·7·

·either the action or the inaction of the water·8·

·commissioner, what can they do?·9·

· · ·· A.· ·The statutes provide an appeal process where10·

·an appropriator, if he is aggrieved or feels aggrieved11·

·by the action or inaction of a water commissioner, they12·

·can appeal that in writing to the superintendent, state13·

·their reasons, say this wasn't fair to me.··And the14·

·superintendent then will review that case and either15·

·uphold or overturn the decision made by the16·

·commissioner, or his indecision.17·

· · · · · · From that decision of the superintendent, a18·

·written appeal can be taken to me.··And then I will19·

·review the work of the superintendent and either uphold20·

·or overturn or something.··Make a decision, render a21·

·decision on that activity.··And my decision, if any22·

·party is up happy with it, can be appealed to the23·

·district court, and thence to the Wyoming Supreme24·

·Court.25·



Page 5123

· · ·· Q.· ·Okay.··And during your tenure as State·1·

·Engineer have you had opportunity to engage in that·2·

·appeal process?·3·

· · ·· A.· ·I have.·4·

· · ·· Q.· ·And part of your duties as well as the State·5·

·Engineer involve you being the president of the Board·6·

·of Control; is that right?·7·

· · ·· A.· ·That's correct.·8·

· · · · · · MR. BROWN:··And I think Mr. Fassett has·9·

·already described the process and happenings with the10·

·Board of Control.··But I'd like to offer if you had any11·

·questions.··I know we had to cut Mr. Fassett kind of12·

·short that day.··So if you had any questions for13·

·Mr. Tyrrell, please feel free to ask him when you have14·

·a chance.··Otherwise, we're going to move on past it.15·

· · · · · · SPECIAL MASTER:··I would suggest at this16·

·point, let's move on.··I might come back to it later,17·

·depending on the rest of the testimony.18·

· · · · · · MR. BROWN:··Okay.19·

·BY MR. BROWN:20·

· · ·· Q.· ·All right.··Let's talk a little bit about21·

·interstate streams.··And you were here yesterday for22·

·Ms. Lowry's testimony; right?23·

· · ·· A.· ·I was.24·

· · ·· Q.· ·She generally described the fact that Wyoming25·



Page 5124

·has got multiple interstate compacts and decrees.··And·1·

·I just want you to briefly describe, other than your·2·

·involvement with the Yellowstone River Compact, your·3·

·involvement with those compacts and decrees in Wyoming.·4·

· · ·· A.· ·Sure.··Prior to 2012, I was commissioner on·5·

·the Yellowstone and the Bear.··So I had involvement in·6·

·both of those.··But since that, Sue was appointed to·7·

·those two commissions, my work has largely been on the·8·

·North Platte and the Colorado River Compact issues,·9·

·whether it be -- I am a member, of, for example, the10·

·Upper Colorado River Commission.··I am Wyoming's11·

·commissioner to that group, which is set up by the12·

·Upper Colorado River Basin Compact.··That's a quite13·

·busy group as you might imagine.14·

· · · · · · I'm also Wyoming's representative to the15·

·North Platte Decree Committee, which is similar in16·

·structure to a compact commission, it just happens to17·

·exist under a decree and not a compact.18·

· · · · · · And that North Platte Decree Committee has19·

·its authorities and its tasks and duties laid out in20·

·the charter that was set up for it within the21·

·settlement documents for the North Platte decree.22·

· · · · · · We have meetings each year on the Belle23·

·Fourche Compact, even though there is no formal24·

·commission meeting and no report, for example.··We have25·



Page 5125

·informational meetings each year on the Niobrara River·1·

·Compact with Nebraska.·2·

· · · · · · And so that pretty much describes my current·3·

·involvement with out of state, either decrees or·4·

·compacts.·5·

· · ·· Q.· ·Okay.··Let's talk about -- a little bit about·6·

·some water rights administration topics in Wyoming that·7·

·I think have either been discussed in this case or have·8·

·some relevance to it.··And the first thing I want to·9·

·talk about is groundwater.10·

· · · · · · Can you generally describe Wyoming's11·

·permitting process with regard to groundwater both in12·

·the context of a control area and a noncontrol area?13·

· · ·· A.· ·Well, we'll talk about the plain vanilla14·

·noncontrol area first.··And that is, Wyoming is our15·

·statutes on permitting groundwater largely say you will16·

·permit unless.··But it's an application form to the17·

·State Engineer.··It goes through some review in our18·

·office.··And then a permit is generally issued.19·

· · · · · · We have conditions that we've currently put20·

·on all groundwater permits that basically say if this21·

·well is determined at some point to be connected to22·

·surface water, that you would be regulated in23·

·conjunction with the surface water priorities.··So the24·

·regular groundwater application is a relatively25·



Page 5126

·straightforward process.·1·

· · · · · · When you get into a control area, which is a·2·

·groundwater management area set up by statute, the·3·

·rules are a little different.··There are only three·4·

·control areas in the state of Wyoming.··There is one in·5·

·eastern Laramie County, there's one up around·6·

·Wheatland, and one called Prairie Center, which is·7·

·north and east of Torrington in northeast Goshen·8·

·County.·9·

· · · · · · And when you're in a control area, which is10·

·set up on the State Engineer's recommendation to the11·

·Board of Control, and it's essentially created that12·

·way, then there is a local board.··The control area13·

·advisory board is part of the bureaucracy that the14·

·statute sets up.15·

· · · · · · And that advisory board then gets16·

·applications or petitions for change referred to it.17·

·And the advisory board can make a recommendation to the18·

·State Engineer whether or not they think he should19·

·grant that permit.··And I take that recommendation,20·

·along with the application, and make a determination at21·

·that point.··So there's more oversight in a control22·

·area than outside of control areas.23·

· · ·· Q.· ·With regard to groundwater permitting in24·

·Wyoming, are there any exceptions related to the size25·



Page 5127

·of the anticipated withdrawal?·1·

· · ·· A.· ·Oh, exceptions.··Certainly we have stock and·2·

·domestic wells which are less than 25 gallons per·3·

·minute, pretty small.·4·

· · · · · · Then we have the larger wells, municipal,·5·

·industrial, agricultural.·6·

· · ·· Q.· ·Okay.··The smaller wells that you mentioned,·7·

·they still have to get a permit?·8·

· · ·· A.· ·They do.··I'm sorry.··Yes, sir.··We have no·9·

·exempt wells in Wyoming.10·

· · ·· Q.· ·Sorry.··That was a poor question?11·

· · · · · · SPECIAL MASTER:··Could you just, probably12·

·totally irrelevant, for clarification, then, if you are13·

·a small stock watering well, you have to get a permit.14·

·But what's the relevance of being small at that point?15·

· · · · · · THE WITNESS:··Well, we do have a statute that16·

·basically says that water for man and beast, stock and17·

·domestic wells are preferred over all other use of18·

·water for man and beast.··It's important in that regard19·

·as a preferred use.··But they need to have a permit.20·

·And in a permit, they get no protection under our water21·

·laws.22·

· · · · · · SPECIAL MASTER:··Thanks.23·

·BY MR. BROWN:24·

· · ·· Q.· ·Are there instances in Wyoming where25·



Page 5128

·groundwater is conjunctively managed or managed under a·1·

·single schedule of priorities with surface water?·2·

· · ·· A.· ·There are.··Probably the best example is·3·

·Bates Creek south of Casper.··Bates Creek is a·4·

·tributary to the North Platte.··And that conjunctive·5·

·management or regulatory environment, I believe, have·6·

·been regulating groundwater in conjunction with surface·7·

·water began -- started to ripen in about 2006 and 2007,·8·

·where we'd already had a USGS study that identified·9·

·connection between the local alluvium and the creek.10·

· · · · · · I had a hydrogeologist on staff at that time11·

·that did another study that confirmed the USGS and made12·

·some estimates of wells being a certain distance from13·

·the creek, how long their pumping would take to impact14·

·the creek.15·

· · · · · · And I want to say it was in October of 200616·

·that we had a public meeting.··My superintendent and a17·

·representative of the Groundwater Division had a public18·

·meeting up there, basically saying, we have information19·

·that the wells are so connected.··Now, hydrogeologic20·

·studies that this coming spring, if we get a call for21·

·regulation then we will regulate the wells in priority22·

·unless you all can come do some other agreement.··So it23·

·was sort of letting them know what the regulatory24·

·landscape was going to look like.25·



Page 5129

· · · · · · And that following spring, no other agreement·1·

·was struck.··And when the call came, we did regulate·2·

·those wells that could impact the point of diversion,·3·

·and were promptly litigated.·4·

· · · · · · That litigation was one in which we·5·

·prevailed.··A couple of years later, we ended up in a·6·

·similar regulatory event, and it was litigated again.·7·

· · · · · · And the -- I don't know if you want me to go·8·

·into the details of that one.··But we prevailed in that·9·

·one as well.··And so as we sit here today, we regulate10·

·groundwater to benefit surface water supplies in Bates11·

·Creek.12·

· · ·· Q.· ·Okay.··And I just want to make sure the13·

·record is clear with regard to that.··In the Bates14·

·Creek situation, the senior surface user makes a call15·

·at his headgate, that -- his Bates Creek headgate, and16·

·when that happens, the wells that impact that are shut17·

·off?18·

· · ·· A.· ·That's correct.··If the wells are downstream19·

·and their turning them off does not put water at his20·

·headgate, they don't get regulated.··Or down-gradiant,21·

·I guess you'd say.22·

· · · · · · SPECIAL MASTER:··Small clarification.··You23·

·mentioned two pieces of litigation; both were on Bates24·

·Creek.25·



Page 5130

· · · · · · THE WITNESS:··Yes.·1·

· · · · · · SPECIAL MASTER:··Thanks.·2·


· · ·· Q.· ·And I guess for further clarification, were·4·

·both those cases in the district court in Wyoming?·5·

· · ·· A.· ·Yes.·6·

· · ·· Q.· ·And my understanding is it did not get·7·

·appealed to the Wyoming Supreme Court?·8·

· · ·· A.· ·I believe that's correct.··They were not·9·

·appealed.10·

· · ·· Q.· ·Is there any other examples with regard to11·

·conjunctive surface groundwater management in Wyoming?12·

· · ·· A.· ·There is.··Horse Creek Basin, which is near13·

·the town of LaGrange, probably an hour north of14·

·Cheyenne and half an hour south of Torrington.··This is15·

·an area where the LaGrange aquifer was also in physical16·

·and hydrologic -- hydraulic contact with Horse Creek.17·

·And over the years had developed quite a -- well a lot,18·

·I guess is -- let's start with that word -- a lot of19·

·groundwater wells producing from the LaGrange aquifer,20·

·which is the shallow, surficial deposits in that basin21·

·that are on both sides of Horse Creek in that vicinity.22·

· · · · · · It's a relatively small and aerial extent.23·

·It's not like the Ogallala that covers thousands of24·

·square miles, but it does cover hundreds.··And it is25·



Page 5131

·in -- was determined by hydrologic evaluation, a·1·

·groundwater study that took a year or year and a half,·2·

·that the water in that shallow aquifer was in·3·

·connection with -- a material connection with the creek·4·

·itself.·5·

· · · · · · The study resulted in us developing an order·6·

·to manage groundwater use in that basin relative to·7·

·surface water use, that was just issued last summer.·8·

·Because of the far flung, not a good word -- some of·9·

·the wells in that area are much further from the creek10·

·than they are in Bates Creek.··It's more laterally11·

·wider, covers more distance away from the creek.··The12·

·timing of the impacts of that groundwater use, even13·

·though it ultimately would affect surface water, the14·

·timing didn't lend itself to contemporaneous15·

·regulation.16·

· · · · · · So we ended up, in that case, issuing an17·

·order that largely limited groundwater pumpage and18·

·required measuring of all the groundwater uses and19·

·surface water uses.20·

· · · · · · In the hydrologic management, water21·

·management business, one of the things we're always in22·

·search of is more information.··I had a need for more23·

·data on how much was being pumped from over a hundred24·

·irrigation wells.··Something like that.··I had a need25·



Page 5132

·to know what the surface water diversion quantities·1·

·were so we could get a water balance for this·2·

·relatively confined area.·3·

· · · · · · So the order essentially put a limit on·4·

·groundwater use, a cap, in essence, for each well.··And·5·

·required measuring devices on the wells and the surface·6·

·water diversions.··And it's a three-year order.··We'll·7·

·reevaluate after we finish the data collection and see·8·

·if that order will continue or be modified.·9·

· · ·· Q.· ·Okay.··And moving away from the areas where10·

·Wyoming already conjunctively manages the ground and11·

·the surface water together, if a senior surface water12·

·user feels that they're being impacted by groundwater13·

·wells or groundwater pumping, what can they do?14·

· · ·· A.· ·A couple things probably.··But the first15·

·thing that comes to mind is they can we perform an16·

·interference investigation, which the statutes allow.17·

·And that interference investigation, which is in our18·

·groundwater statutes, can be a test as to whether a19·

·well is interfering with another well or whether a well20·

·is interfering with surface water supplies.21·

· · · · · · And when we do that investigation we can make22·

·a determination as to whether that interference is, in23·

·fact, occurring.··We can recommend solutions,24·

·mitigation, methods to solve that.25·



Page 5133

· · · · · · If it becomes something like it did in Horse·1·

·Creek where we have this -- also had a regulatory issue·2·

·hanging over that valley, then we can issue an order·3·

·like we did in that case and solve it in that manner.·4·

· · ·· Q.· ·So after you conduct an investigation and·5·

·make a report with regard to that, if either the·6·

·surface water user or the groundwater user is unhappy·7·

·with your conclusions, what can they do?·8·

· · ·· A.· ·I believe that decision is appealable to the·9·

·superintendent or the board.10·

· · ·· Q.· ·Are you familiar with CBM development in the11·

·Tongue and Powder River Basins?12·

· · ·· A.· ·I am.13·

· · ·· Q.· ·Describe your experience with that CBM14·

·development.15·

· · ·· A.· ·My first exposure to coalbed natural16·

·development was at Black Thunder.··And we had some of17·

·the initial efforts of drilling into the coal west of18·

·our mine.··And as the regulatory affairs person, I was19·

·tasked with reviewing the lease agreement, the surface20·

·agreement that the gas producer was seeking on the21·

·permit area.··So that was my first exposure to this22·

·notion that you could pump down water within the coal23·

·aquifer and get it to release natural gas.24·

· · · · · · I can remember one of the interesting debates25·



Page 5134

·at that time was who owns the gas?··Was it the coal·1·

·mineral resource owner or the oil and gas lease holder?·2·

·It was determined, in my recollection, that it belonged·3·

·to the natural -- to the oil and gas lease holder.··So·4·

·they were allowed -- it wasn't the mine that owned the·5·

·gas, in other words.·6·

· · · · · · So that was my first exposure.··After that,·7·

·when I took this job, it was a budding industry in the·8·

·Powder River Basin and was beginning to see a little·9·

·bit of activity elsewhere in Wyoming as well.··So10·

·largely my exposure then came in in developing11·

·procedures and policies for the permitting of the water12·

·production, the beneficial use side ultimate production13·

·of wells and then subsequently what happens to that14·

·water afterward through the State Engineer's Office.15·

· · ·· Q.· ·And as far as the State Engineer's Office16·

·involvement with regard to CBM water development was17·

·your office part of the Wyoming CBM task force?18·

· · ·· A.· ·It was.··There were a couple of task forces19·

·early on.··And I -- Mr. Brown, if you don't mind, let20·

·me back up on the initial involvement of the agency.21·

· · · · · · My predecessor had determined it was this22·

·production of water to drop the head in the coal that23·

·would allow the production of gas to be a beneficial24·

·use of water in Wyoming.··And I had continued that.··So25·



Page 5135

·under that direction, then, a well that produced water·1·

·in order to produce gas required a permit from our·2·

·office.··And I continued that direction.·3·

· · · · · · So would you repeat next question then,·4·

·please?·5·

· · ·· Q.· ·It was just generally with regard to the·6·

·State Engineer Office's involvement with Wyoming's·7·

·coalbed natural gas task force.·8·

· · ·· A.· ·There were two task forces that come to mind.·9·

·The first we had a little less involvement in.··It was10·

·mostly geared toward MPDES, or WYPDES, it's termed now,11·

·discharges related to coalbed natural gas operations.12·

·But since it involved water, we were a part of that.13·

· · · · · · The second task force, which I believe was in14·

·the '06, maybe 2005 to 2007 time frame, primarily dealt15·

·with and was tasked to address the question of what16·

·else can the state of Wyoming do to manage water17·

·produced as a result of coalbed operations.··And we18·

·were deeply involved in that task force.19·

· · ·· Q.· ·Okay.··I'm going to show you what's marked as20·

·Exhibit M408.··Do you recognize that document?21·

· · ·· A.· ·I do.22·

· · ·· Q.· ·What is it?23·

· · ·· A.· ·This is a document prepared during that run24·

·of that task force by my Groundwater Division, at my25·



Page 5136

·request.··One of the requests that came to the·1·

·individual agencies out of the task force was so what·2·

·are your authorities, and how far do they extent?·3·

· · ·· Q.· ·Okay.··And this document relates to that task·4·

·force that the office belonged to?·5·

· · ·· A.· ·It does.·6·

· · · · · · MR. BROWN:··I'd like to offer Exhibit M408.·7·

· · · · · · MR. DRAPER:··Your Honor, could I have a word·8·

·with Mr. Brown for just a second about this exhibit?·9·

· · · · · · SPECIAL MASTER:··Sure.10·

· · · · · · MR. DRAPER:··Your Honor, we agree that11·

·there's some extra pages in this exhibit.··It was --12·

·there was some extra duplication at the back of it.··I13·

·don't have an objection to it.··But I would point out14·

·there's at least ten duplicatory pages at the back that15·

·are not necessary.16·

· · · · · · SPECIAL MASTER:··I thought Mr. Brown put17·

·those in for emphasis.18·

· · · · · · MR. BROWN:··No.··You'll notice this was19·

·Montana's exhibit.··And I'll represent that I think20·

·that's the way it came.··And so Montana just put that21·

·together that way.··And there's nothing intended by the22·

·duplicates at the end of this exhibit.23·

· · · · · · SPECIAL MASTER:··Okay.··Exhibit M408 is24·

·admitted.25·



Page 5137

· · · · · · · · · · · (Exhibit W408 admitted.)·1·


· · ·· Q.· ·And I don't think we need to go into this·3·

·document in detail, but briefly describe what the·4·

·purpose of this particular memorandum was.·5·

· · ·· A.· ·We remember that at this time, the memorandum·6·

·was a response to a request from the task force so they·7·

·better understood what our procedures were and our·8·

·authorities, et cetera.··So as you go through this,·9·

·there's some explanation of the what the interference10·

·statute does and how we proceed under that, how we look11·

·at, for example, what's a valid right or adequate well.12·

·Some guidance on what is unreasonable interference and13·

·how the investigation goes forward, regulatory options.14·

· · · · · · So it was designed to be an educational15·

·document, and sort of a guidance to the task force that16·

·certainly didn't work with these things every day.··And17·

·they were looking to see, are there places, either in18·

·statute or elsewhere, that we could ultimately make19·

·changes that would be in the state and our best20·

·interest in terms of managing CBM produced water.21·

· · ·· Q.· ·Okay.··And just again, very briefly, with22·

·regard to the State Engineer Office responsibilities23·

·for permitting related to CBM wells, what did that24·

·entail?25·



Page 5138

· · ·· A.· ·The CBM -- well first of all, we get·1·

·applications.··Our responsibility was when those·2·

·applications came in, that we would review them, make·3·

·sure they were appropriately filled out, they were·4·

·complete and whatnot.··And we'd grant them.·5·

· · ·· Q.· ·And just for clarification, what was that·6·

·permit for that you were just describing?·7·

· · ·· A.· ·The coalbed natural gas well permit from our·8·

·office would grant them the right to produce water to·9·

·produce gas.··As we went through the -- over time, we10·

·did find that there were places in the state that --11·

·and in the Powder River Basin, that might have been12·

·producing water without producing any gas, at which13·

·point we added conditions and held a -- developed a14·

·show-cause process where if they weren't producing gas15·

·along with the water, why should their permit continue16·

·in force?17·

· · · · · · That process, which went from -- started in18·

·about 2007, and resulted in either suspension or19·

·cancellation, I think, of over a thousand wells.20·

· · ·· Q.· ·And at some point or was there also a21·

·requirement with regard to the permitting of storage22·

·facilities for CBM produced water?23·

· · ·· A.· ·Yes.··The industry would use surface water24·

·storage in many places as a management tool for their25·



Page 5139

·produced water.··And that could have been old stock·1·

·reservoirs that preexisted; it could have been new·2·

·reservoirs constructed either in the stream channel or·3·

·away from the channel as an incised structure.··In any·4·

·of those that had the ability to either obstruct·5·

·natural flow or that had a beneficial use associated·6·

·with them, we'd require a permit on them through our·7·

·office.·8·

· · ·· Q.· ·I'm going to show you what's marked as·9·

·Exhibit M407.··Do you recognize that document?10·

· · ·· A.· ·I do.11·

· · ·· Q.· ·What is it?12·

· · ·· A.· ·This is a policy memo that I authored or13·

·signed back in 2001 relating to permitting requirements14·

·for CBM produced water.15·

· · ·· Q.· ·Is that your signature on the first page?16·

· · ·· A.· ·It is.17·

· · · · · · MR. BROWN:··I'd like to offer Exhibit M407.18·


· · · · · · SPECIAL MASTER:··Exhibit M407 is admitted.20·

· · · · · · · · · · · (Exhibit M407 admitted.)21·

·BY MR. BROWN:22·

· · ·· Q.· ·And does this revised interim policy memo23·

·just generally describe what you were discussing as far24·

·as permitting of CBM wells and CBM reservoirs25·



Page 5140

·impoundments?·1·

· · ·· A.· ·It does.··It provided those people seeking·2·

·those types of permits with some guidance as to how to·3·

·go through that process.·4·

· · ·· Q.· ·And did this policy that you had related to·5·

·that process, did it evolve over time?·6·

· · ·· A.· ·It did.·7·

· · ·· Q.· ·And what caused the evolution?·8·

· · ·· A.· ·The industry back in those days was growing·9·

·quite a bit, and there were times when a policy10·

·memorandum would be then faced with a question we11·

·hadn't seen before.··And as those questions came to our12·

·attention we would look at the policy guidance we were13·

·providing and amend it if needed.14·

· · ·· Q.· ·I'm going to show what's marked Exhibit15·

·M259B.··Do you recognize that document?16·

· · ·· A.· ·I do.17·

· · ·· Q.· ·What is it?18·

· · ·· A.· ·This is one of those revisions, a later19·

·revision to the permitting requirements for coalbed20·

·methane facilities through our office.21·

· · ·· Q.· ·Is that your signature on the first page?22·

· · ·· A.· ·It is my signature.23·

· · · · · · MR. BROWN:··I'd like to offer Exhibit M259B.24·




Page 5141


·Mr. Draper.·2·

· · · · · · Exhibit M259B is admitted into evidence.·3·

· · · · · · · · · · · (Exhibit M259B admitted.)·4·


· · ·· Q.· ·And can you just briefly describe what had·6·

·changed from the 2001 policy memo into the 2004 policy·7·

·memo?·8·

· · ·· A.· ·I can.··And, in fact, I think this superseded·9·

·one that was in between those that I had issued in10·

·2002.··This one primarily, my recollection is it11·

·started to call out the difference between a permit12·

·being held by an operator versus a permit being applied13·

·for by a landowner.··And, for example, if it was going14·

·to be time limited and held only in the operator's15·

·name, it would be permitted in a certain fashion.··If16·

·it was going to be in the landowner's name and they17·

·wanted to keep it after coalbed production ceased, then18·

·it would be a somewhat different procedure.19·

· · · · · · And this policy, the intent was to say, okay,20·

·you now have those two tracks.··And the requirements21·

·were little different.22·

· · ·· Q.· ·I'm going to show you what's marked as23·

·Exhibit M259A.··And do you recognize that document?24·

· · ·· A.· ·I do.25·



Page 5142

· · ·· Q.· ·What is it?·1·

· · ·· A.· ·This is guidance that the Groundwater·2·

·Division of my office prepared on CBM related·3·

·groundwater permit applications.·4·

· · · · · · MR. BROWN:··I'd like to offer Exhibit M259A.·5·

· · · · · · MR. DRAPER:··No objection, Your Honor.·6·

· · · · · · SPECIAL MASTER:··So Exhibit M259A is·7·

·admitted.··And I assume, from the fact that there's a·8·

·date on the top of the second page that says·9·

·March 2004, this was a 2004 guidance document?10·

· · · · · · THE WITNESS:··I believe that's correct.11·

· · · · · · SPECIAL MASTER:··Okay.··Thanks.12·

· · · · · · · · · · · (Exhibit M259A admitted.)13·

·BY MR. BROWN:14·

· · ·· Q.· ·And, Mr. Tyrrell, if you could just briefly15·

·describe what the purpose of this guidance document is.16·

· · ·· A.· ·We, in all likelihood, and the explanation17·

·here is we would often get CBM groundwater permit18·

·applications in that either we didn't understand or19·

·were filled out incorrectly.··And so what this was an20·

·intent -- the intent of this document was to provide21·

·those folks who were going to be applying for a CBM22·

·groundwater permit guidance on the form.··And if they23·

·had a desire to do certain things with the water or had24·

·certain other use to the well, it provided them the25·



Page 5143

·information on how to properly fill out the·1·

·application.·2·

· · · · · · So it was, in essence, a road map for those·3·

·people applying on how to apply.·4·

· · ·· Q.· ·Okay.··Did the State Engineer's Office also·5·

·participate in a groundwater monitoring program related·6·

·to CBM development?·7·

· · ·· A.· ·We did.·8·

· · ·· Q.· ·What was the extent of that program?·9·

· · ·· A.· ·We had and have about 13 different coal10·

·monitoring wells in an area south of Gillette known as11·

·the Fairway, which is colloquial term in that area.12·

·But it's where CBM essentially started in the basin,13·

·which is from around Wright up to Gillette, just west14·

·of the coal mines, where I had worked and seen some of15·

·that early activity.16·

· · · · · · The 13 sites that we monitor are in coal.17·

·And five of those are nested sites where we also have18·

·another well nearby that is in the overburden.19·

· · ·· Q.· ·Okay.··And through that monitoring program,20·

·did you observe drawdowns in the coal formations with21·

·regard to CBM development?22·

· · ·· A.· ·We did.23·

· · ·· Q.· ·Did you observe groundwater drawdowns in the24·

·overburden during the Wasatch?25·



Page 5144

· · ·· A.· ·In those nested locations, we did see some·1·

·drawdown.··But it was variable.··It was not ever as·2·

·much as the drawdown that we saw in the coal.··But it·3·

·could have been anywhere from almost nothing to a·4·

·couple hundred of feet.·5·

· · ·· Q.· ·I'm going to show you what's marked Exhibit·6·

·W334B.··Do you recognize that document?·7·

· · ·· A.· ·I do.·8·

· · ·· Q.· ·What is it?·9·

· · ·· A.· ·This is an update briefing type document that10·

·my Groundwater Division prepared for me with -- giving11·

·me an idea probably at my request saying where we at12·

·with the coalbed methane in your division?13·

· · · · · · MR. BROWN:··I'd like to offer Exhibit W334B.14·


· · · · · · SPECIAL MASTER:··Exhibit 334B is admitted.16·

· · · · · · · · · · · (Exhibit W334B admitted.)17·

·BY MR. BROWN:18·

· · ·· Q.· ·And if you'd take a look at page 4 of this19·

·document, down towards the bottom you'll see a heading20·

·entitled Monitoring Efforts.21·

· · ·· A.· ·Yes.22·

· · ·· Q.· ·Does that generally describe the monitoring23·

·program that you were just talking about?24·

· · ·· A.· ·It does.25·



Page 5145

· · ·· Q.· ·Okay.··And I think it also describes just·1·

·other aspects of CBM development that the State·2·

·Engineer's Office was involved in; is that right?·3·

· · ·· A.· ·Yes.·4·

· · ·· Q.· ·Are you aware of any surface water user in·5·

·Wyoming claiming interference to their right as a·6·

·result of CBM groundwater pumping?·7·

· · ·· A.· ·A surface water user?·8·

· · ·· Q.· ·Yes.·9·

· · ·· A.· ·No, I'm not aware.10·

· · ·· Q.· ·Have any CBM wells in Wyoming been regulated11·

·for the benefit of the surface water user in Wyoming?12·

· · ·· A.· ·No, they have not.13·

· · ·· Q.· ·Has your office received interference14·

·complaints from other groundwater well owners from CBM15·

·pumping?16·

· · ·· A.· ·We have.17·

· · ·· Q.· ·And describe those.··What did you do?18·

· · ·· A.· ·I want to say we had in the neighborhood of19·

·60 plus or minus complaints over the years when --20·

·during the mid-2000s, where there would be a complaint21·

·that the CBM well was affecting somebody's stock or22·

·domestic well.··There were only one or two of those23·

·that ever went the distance.··Largely, they would come24·

·in as a complaint.··And we were either forestalled from25·



Page 5146

·going further because we would find out that domestic·1·

·well, for example, didn't have a permit, or stock well,·2·

·or it was solved through negotiations with an operator,·3·

·or they just never called us back.·4·

· · · · · · We ended up with one that I can recall that·5·

·was between a -- the complainant was actually an·6·

·explosives company south of Gillette that made powder·7·

·for blasting at the coal mines.··And they claimed that·8·

·their well was impacted by a nearby CBM well.··And our·9·

·investigation indicated that that well was impacting10·

·their industrial plant well.··And the -- I think the11·

·ultimate solution of that was an arrangement between12·

·the CBM company and that industry to provide their13·

·water.14·

· · · · · · We had another one north -- on the north15·

·fringe of Gillette that we almost finished the16·

·investigation on, the interference investigation, when17·

·the two parties settled.··The coalbed company and the18·

·complainant were actually in litigation at the time as19·

·well.··And they settled that, and our study stopped at20·

·that point.21·

· · ·· Q.· ·At least with regard to the one that did go22·

·to the distance and you found -- or the State23·

·Engineer's Office found interference by the CBM well,24·

·were those wells completed in the same coal formation?25·



Page 5147

· · ·· A.· ·I believe they were.·1·

· · ·· Q.· ·Has your office had to deal with other types·2·

·of complaints related to CBM water production?·3·

· · ·· A.· ·We have.··We dealt with complaints during the·4·

·heyday, I guess I want to say, of coalbed natural gas.·5·

·It has waned a little bit.··But there were often·6·

·concerns about -- in places where stream discharges·7·

·were allowed.··The Belle Fourche and other places north·8·

·of Gillette, where discharges to stream were putting·9·

·water into what were previously ephemeral channels.10·

·And that caused concerns and problems for downstream11·

·livestock operators, for example, getting cattle across12·

·a creek that had water in it when they weren't used to13·

·that.14·

· · · · · · So we had those types of complaints.··We had15·

·concerns by irrigators that they didn't want CBM water16·

·even come to them, or that maybe there was concern just17·

·with the amount of reservoirs going in.18·

· · ·· Q.· ·So based on your experience with other areas19·

·in Wyoming where we do regulate groundwater and surface20·

·water in priority, would the groundwater and the coal21·

·formations be considered as a stable source of supply22·

·with the surface water in the Tongue and Powder River23·

·Basins?24·

· · ·· A.· ·Well, again, we were never posed with that25·



Page 5148

·question to evaluate.··But I think it would be quite·1·

·difficult to show that connection.·2·

· · · · · · The places where we have found the material·3·

·connection have been where essentially the horizon·4·

·you're producing water from is in physical connection·5·

·to the creek.··The Bates Creek and Horse Creek areas,·6·

·you were producing from what amounted to a water table·7·

·that was up at the creek level and in the same physical·8·

·material that was -- that the creek was cut through.·9·

· · · · · · Here what you would have is a buried10·

·formation that was confined to some extent because11·

·that's what was keeping the gas in it.··And you would12·

·have to show that somehow the production of water from13·

·that buried coal was impacting in some fashion the14·

·surface flow perhaps few hundred to a thousand feet15·

·above it.16·

· · · · · · So that's my reaction.··Although, we'd do the17·

·evaluation should that test have ever come to us or18·

·that question.19·

· · ·· Q.· ·Do the Wyoming state statutes set out a test20·

·to tell us when that connection is enough to constitute21·

·one source of supply?22·

· · ·· A.· ·In some sense I want to say, unfortunately,23·

·it does not.··It says that when those two -- when24·

·groundwater is found to be so interconnected as to in25·



Page 5149

·fact constitute one source of supply, then you can do·1·

·this regulation -- or do the interference investigation·2·

·as well.··But it doesn't give me a test.··It doesn't·3·

·say 1 percent in a hundred years or some number like we·4·

·ended up with in the North Platte for hydrologic·5·

·connection; 28 percent 40 years.··That number is not a·6·

·general number in our statute.··So it becomes a case by·7·

·case, fact-based hydrogeologic study.·8·

· · ·· Q.· ·Who ultimately makes that determination?·9·

· · ·· A.· ·I do.··With a lot of help, I might add,10·

·Mr. Brown.11·

· · ·· Q.· ·And being you mentioned it, just perhaps12·

·clarify a little bit.··Can you describe generally the13·

·28/40 rule with regard to the North Platte?14·

· · ·· A.· ·Yeah, in the North Platte, in the lower North15·

·Platte around Torrington and below Whalen Diversion Dam16·

·we have this area that's -- well, an area called the17·

·triangle where there's a lot of groundwater production18·

·that ultimately was determined to be in hydrologic19·

·connection with the North Platte River.··And so20·

·Wyoming, part of our compliance obligation under the21·

·decree is to repay the depletions from that use.22·

· · · · · · As a result of that finding, there was a23·

·general determination in that case, a negotiated24·

·solution, that said and anywhere else in the North25·



Page 5150

·Platte Basin if water produced from a well, if·1·

·28 percent -- if that water would have -- 28 percent of·2·

·that would have come from the surface water source over·3·

·a 40-year period, then it is hydrologically connected·4·

·enough that, for example, the ground that you irrigate·5·

·out of that well now gets counted in the irrigated·6·

·numbers for the compliance in the decree.··If.·7·

· · · · · · It did not meet that test then there was no·8·

·compliance associated with that well.··And that was a·9·

·number that came out of the settlement process.10·

· · ·· Q.· ·I think we probably talked more than we11·

·probably needed to with regard to groundwater.··So12·

·let's move on to storage rights.13·

· · · · · · And can you generally describe the permitting14·

·process in Wyoming with regard to storage rights?15·

· · ·· A.· ·Permitting a reservoir in Wyoming entails the16·

·filling out of a reservoir application.··It's a17·

·simplified application for a very small reservoir, say,18·

·less than 20 acre-feet.··As you get larger, the19·

·application is a little more involved and requires a20·

·map, for example.21·

· · · · · · The key attributes of the application will be22·

·what's your physical capacity, your high water line23·

·elevation and area capacity curve, the beneficial use24·

·to which that water is going to be put?··The source of25·



Page 5151

·supply for that reservoir, which would be whatever·1·

·stream it's on or if a canal is dug to it, where is·2·

·that canal coming from?··What's its source?··Are you·3·

·proposing to put any water into this reservoir from·4·

·groundwater?·5·

· · · · · · So you need to identify the sources, the·6·

·beneficial use, the size, provide us a map, those types·7·

·of things.··And then we will do the review process.·8·

· · · · · · If it is a embankment that exceeds our Safety·9·

·of Dams minimum size, it will also go through a review10·

·for safety purposes for my Safety of Dams staff.11·

· · ·· Q.· ·Okay.··And what is the extent, and I guess by12·

·extent I mean the volume, the total volume of the water13·

·right with regard to reservoirs in Wyoming?14·

· · ·· A.· ·The water right for a reservoir in Wyoming is15·

·defined by its capacity at the high water line.··So if16·

·you've got a 200 acre-foot reservoir, you will get a17·

·water right to store 200 acre-feet.··It's also defined,18·

·I guess, specifically, by its priority date, which19·

·would be the date we receive the application.20·

· · ·· Q.· ·Okay.21·

· · ·· A.· ·And its beneficial uses.22·

· · ·· Q.· ·Now, Mr. Fassett, when he was with us, has23·

·already testified with regard to his experience on the24·

·North Platte River.··And I think since the modified25·



Page 5152

·decree has come into place since you became State·1·

·Engineer, I wonder if you would just briefly describe·2·

·if you've had an opportunity be involved with·3·

·regulation on the North Platte River.·4·

· · ·· A.· ·I have.··A year after the decree was entered,·5·

·the modified decree and the settlement stipulation, we·6·

·had an allocation starting in 2002.··And we had those·7·

·through 2005.··And, again, we had one last year -- or·8·

·this year, 2013.··So we've had five of those regulatory·9·

·events since the modified decree was entered.10·

· · · · · · And that event includes the automatic call11·

·for the benefit of the federal reservoirs on the main12·

·stem of the North Platte.··That call coming in13·

·February, early February, if the threshold water supply14·

·numbers for those reservoirs is not met.··That -- oh,15·

·go ahead.16·

· · ·· Q.· ·I'm sorry.··If I can just interrupt you for a17·

·second.··I just wanted to draw your attention to the18·

·fact that we put Wyoming Demonstrative Exhibit No. 3 up19·

·on the screen.··And if you could describe what you were20·

·describing with regard to how -- what's an allocation21·

·year, number one, and how does that work?22·

· · ·· A.· ·I finally get to draw pictures on this cool23·

·little tool.··This is a diagram of the North Platte24·

·River Basin in Wyoming.··And the allocation year, in25·



Page 5153

·general, comes after a test is made.··And that test is·1·

·how much carryover storage do we have in the project·2·

·accounts?··What is the forecasted runoff for the coming·3·

·year?··And we can't do the forecast until we have some·4·

·idea what snowpack is.··So that's why it doesn't start·5·

·until February.·6·

· · · · · · But the threshold for a full supply for the·7·

·users out of these federal reservoirs is·8·

·1.1 million acre-feet.··So if in early February·9·

·carryover plus forecasted supply is less than that, I10·

·get an automatic call.··But I still get to validate or11·

·honor.12·

· · · · · · If it is greater than that number there is no13·

·automatic call.··But when it is less and we review the14·

·calculation and say, darn it, you're right.··It's15·

·700,000 acre-feet, for example, we then begin to16·

·regulate for the priorities of those reservoirs any17·

·uses in the basin that are junior to those periods.18·

· · · · · · So let's assume, I can maybe walk you through19·

·what happened this year in 2013.··The river, as you can20·

·tell by the colors, has different areas where they're21·

·somewhat different administration.··North Platte has22·

·sectionalized administration.··So the lower area down23·

·here is below essentially all the storage, below24·

·Guernsey.··And that's where our irrigation really25·



Page 5154

·starts.·1·

· · · · · · When that call comes on, it's to fill the·2·

·federal reservoirs starting with the 1923 priority·3·

·right here at Guernsey.··That would affect the call in·4·

·the area that's yellow.··So we'd begin to regulate, in·5·

·February, in that yellow area, uses that are junior to·6·

·1923.·7·

· · · · · · Pathfinder Dam, which is here -- there, is a·8·

·1904 priority.··So we would be regulating above·9·

·Pathfinder uses that are junior to 1904.··And we do.10·

· · · · · · The call is revisited each month.··So I get11·

·another test or set of calculations done the first week12·

·of March to determine whether that 1.1 million13·

·acre-foot threshold is still not met.··If for some14·

·reason the mountains and plains of Wyoming get five15·

·feet of snow in February, that forecast is going to16·

·change, and the call may go off.··I wish that would17·

·happen more often.18·

· · · · · · Something like that did happen in '03, and I19·

·can mention that briefly.··But this is how we operate20·

·in February and March until, for example, if the21·

·Guernsey right fills, and it's only 45,000 acre-feet,22·

·then we go to the Glendo priority in the lower river23·

·which is 1951.24·

· · · · · · Once you get into April, the yellow area25·



Page 5155

·drops down to 1904 regulation.··And that reason is·1·

·because there are lakes over here in Nebraska, the·2·

·Inland Lakes that have a 1904 priority.··And they can·3·

·only store in October, November, and April.··So the·4·

·call automatically in April would go to 1904 for their·5·

·benefit.·6·

· · · · · · And then at the end of April, whatever·7·

·reservoirs got, they got.··And the call goes off on·8·

·May 1.··But during that period of time, people will be·9·

·regulated.··So towns, cities, municipalities, I guess10·

·those are synonymous, and industries have often11·

·developed other water supplies to get them through that12·

·call period.··Whether it's storage out of the Wyoming13·

·account in Pathfinder, another reservoir, an account,14·

·maybe purchase some water from the Bureau of15·

·Reclamation contract in Glendo, or some other water16·

·supply they may have developed.17·

· · · · · · So that's the nature of how the call works.18·

·And by May 1, it automatically goes off.19·

· · ·· Q.· ·Okay.··And I just want to take a look at a20·

·couple of different elements with regard to that.21·

·Number one, how was it it came to be an automatic call?22·

· · ·· A.· ·I wasn't involved in the negotiations.··But23·

·the automatic call was, so what rights do the federal24·

·reservoirs have that are senior to other users on the25·



Page 5156

·system that are intended to store over the winter and·1·

·into the spring?··But under the previous decree, how·2·

·would they have any ability to -- how do they exercise·3·

·their water right?··I know there was a call for them·4·

·prior to this settlement that really upset the apple·5·

·cart in the North Platte River.·6·

· · · · · · And I think that certainty of what a call·7·

·looks like drove them, the Bureau, the Wyoming State·8·

·Engineer, and Nebraska to the bargaining table.··During·9·

·to the settlement they had a number of loose ends to10·

·tie up on the North Platte.··And this was one of them.11·

·How do we regulate to benefit the federal reservoirs.12·

· · · · · · So when they got to the negotiating point it13·

·was, okay, if you're going to get an automatic call,14·

·how do we know you're truly short?··And that's where I15·

·think Mr. Fassett indicated that we shut the river down16·

·in the winter.··And the water that's there gets into17·

·those reservoirs, is physically stored and accounted as18·

·physically stored.··Essentially every drop.··And that's19·

·what, I think, the state of Wyoming needed to say,20·

·okay, we'll honor the call.21·

· · · · · · It would have been difficult in my mind to22·

·say, go ahead and operate the reservoir however you23·

·want to and tell us when you're short.··And we'll go24·

·regulate it.··So I think that this coming together on25·



Page 5157

·the automatic call was give and take from both sides.·1·

· · · · · · And we ended up with those procedures that·2·

·were ultimately the key as they were ultimately agreed·3·

·to by all parties.·4·

· · ·· Q.· ·And you also mentioned during your discussion·5·

·that the call is automatically taken off on May 1?·6·

· · ·· A.· ·Yes.·7·

· · ·· Q.· ·Why is that?·8·

· · ·· A.· ·Because at that point it would begin to·9·

·interfere with direct flow uses.··And Wyoming argued10·

·successfully, my recollection is, that we're already11·

·constrained under the decree by an irrigated cap.··And12·

·under the modified decree we have that plus a13·

·consumptive use cap.··It's a triple whammy to also14·

·regulate us off in the summer for benefit of the15·

·federal reservoirs when we're already constrained two16·

·other ways.17·

· · · · · · And that's the reason it came off on May 1.18·

·And also to provide certainty that after May 1, our19·

·water users are regulated then only by whatever20·

·intrastate calls come on their tributary, by their21·

·neighbors.··So the automatic call to fill the federal22·

·reservoirs for those types of reasons, was cut off on23·

·May 1.24·

· · ·· Q.· ·And you also mentioned that you got the25·



Page 5158

·opportunity to validate that call.··So is there an·1·

·opportunity for the State Engineer to say, I'm not·2·

·going to regulate?·3·

· · ·· A.· ·There is.·4·

· · ·· Q.· ·Describe that.·5·

· · ·· A.· ·We've been lucky that the numbers that have·6·

·come in have either been distinctly above 1.1 or below.·7·

·And through our analysis we've generally agreed and·8·

·haven't had do that because the real sort of difficult·9·

·question might be what if the number comes in at 1.09?10·

·There's a very good chance that, you know, you're right11·

·near that threshold number.12·

· · · · · · The one example that -- where we did actually13·

·take the call off was, if I recall correctly, 2003.14·

·The second year that we ever did it.··And it was one of15·

·those years where in late March, we got a monster16·

·snowstorm.··And it looked as though -- and, of course,17·

·in April we were under the 1904 Inland Lakes priority18·

·in the lower river.··But it looked as though, absent19·

·any regulation, Inland Lakes would fill because of that20·

·event that happened.21·

· · · · · · And I don't remember the exact date.··But I22·

·took the call off in April to allow other people to23·

·some access to that water if they needed it.··And24·

·Inland Lakes did fill.··I was told to go to church25·



Page 5159

·after that decision.··But I had that ability to take·1·

·that off.··So it does allow further review.·2·

· · ·· Q.· ·Okay.··Mr. Aycock testified in this case on·3·

·behalf of Montana.··And he described in relation to·4·

·Pathfinder Reservoir sedimentation recovery.··Are you·5·

·familiar with sedimentation recovery in Pathfinder·6·

·Reservoir?·7·

· · ·· A.· ·I am.·8·

· · ·· Q.· ·And describe this sedimentation recovery that·9·

·occurred in Pathfinder Reservoir.10·

· · ·· A.· ·My understanding is that some decades ago,11·

·the Bureau -- or some years ago, the Bureau had done a12·

·bathymetric survey of Pathfinder and found --13·

·Pathfinder Reservoir and found that they had lost about14·

·54,000 acre-feet due to sediment inflow.··So there was15·

·a period of time that they were limited to less than16·

·their full storage amount.17·

· · · · · · Instead of being able to be full at a million18·

·70,000 acre-feet, they were full at a million 16,00019·

·acre-feet.··There was a proposal that got legs and made20·

·it through the settlement process and resulted in a21·

·stipulated document called the Pathfinder Modification22·

·Project where the Bureau could recover that space by23·

·raising Pathfinder Dam by about 2.3 feet.··And you'd24·

·gain 54,000 acre-feet of storage at the top of the25·



Page 5160

·reservoir that you had lost in the bottom of the·1·

·reservoir.·2·

· · · · · · That change required a petition to the State·3·

·Engineer for a change in use by adding additional uses.·4·

·It was granted.··There was -- and is in effect right·5·

·now.··The 54,000 acre-feet does double duty in that not·6·

·only did they recapture the space itself, but that·7·

·provided Wyoming, our benefit there was two-fold.··We·8·

·got an account that we could show as our contribution·9·

·to the Recovery Implementation Program under the Platte10·

·River -- it was the Platte River Recovery11·

·Implementation Recovery Program and it was our12·

·contribution.··That's about 34,000 acre-feet of that 5413·

·that was recovered.14·

· · · · · · The other 20,000 is a Wyoming account15·

·entirely.··And we have the use of that account for16·

·municipalities on the river, replacement water on the17·

·North Platte, et cetera.··So there's very good use to18·

·which that account's being put.19·

· · · · · · Now, one of the things that came through the20·

·approval process of that enlargement or recapture, not21·

·really an enlargement but a recapture of that space,22·

·was that it could not place a regulatory call on users23·

·above the reservoir, except for Seminoe.··It could call24·

·out its sister reservoir that nobody else but Seminoe25·



Page 5161

·could be affected by that 54,000 acre-feet recovery.·1·

· · ·· Q.· ·And I've just got one other brief topic.·2·

· · · · · · SPECIAL MASTER:··Can I just -- just a small·3·

·question.··You mentioned that Wyoming got credit·4·

·towards the Platte River Recovery -- and I didn't catch·5·

·the entire name, nor do I know what that is.·6·

· · · · · · THE WITNESS:··The Platte River Recovery·7·

·Implementation Program or PRRIP, as we call it, is the·8·

·ultimate result of what otherwise would have been a·9·

·jeopardy determination for water activities on the10·

·Platte replated to the whooping crane, piping plover,11·

·least tern, and pallid sturgeon, which all exist in the12·

·central North Platte in Nebraska.13·

· · · · · · So all the states on the Platte River system14·

·are a party to this recovery program, much like the15·

·endangered fish recovery program in the Colorado River16·

·Basin.··So it's an EIS related recovery program for17·

·those species.··And each state has developed its18·

·contribution, whether it's water or money, to that19·

·program.··This was part of Wyoming's contribution was20·

·the yield of that environmental account, which is21·

·34,000 of the 54 that was recovered is dedicated to22·

·that program.23·

· · · · · · SPECIAL MASTER:··Okay.··Thank you.··That24·

·answers my question.··You said an EIS related program.25·



Page 5162

·Did you mean ESA.·1·

· · · · · · THE WITNESS:··Yes, I apologize.··ESA.·2·


· · ·· Q.· ·And like I said, I've only got one other·4·

·brief topic with regard to Wyoming water·5·

·administration.··And then it would be a great time to·6·

·take a break.·7·

· · · · · · There's been some discussion, and I suspect·8·

·some confusion, with regard to testimony in this case·9·

·with regard to Wyoming's surplus water statute.··So10·

·could you please describe for us what the Wyoming11·

·surplus water statute is?12·

· · ·· A.· ·I will.··Thank you.··The surplus water13·

·statute, and I can't cite off my head the number, but14·

·it's in our Title 41, essentially gives every pre-194515·

·irrigation direct flow right in the state of Wyoming a16·

·second CFS per 70, and an additional 1 per 70 with a17·

·March 1, 1945, priority date.··An adjudicated 1 CFS to18·

·70.··So that when water is available, anybody that is19·

·pre-1945 can divert up to 2 CFS per 70 when it's20·

·available.21·

· · · · · · The interesting thing about that statute is22·

·how it actually functions.··Typically, around the23·

·state, because of the steepness of the runoff curve,24·

·we're either in what has been termed free river25·



Page 5163

·situation where nobody essentially is being regulated·1·

·because there's water enough for everybody, to once you·2·

·get out of that you're in regulation.··But so often we·3·

·go from free river to single 1 to 70 regulation because·4·

·the water drops off so fast.··We rarely see any·5·

·regulation where everybody that's pre-'45 is getting 2.·6·

· · · · · · It just falls through that window so fast·7·

·that if you were to talk to the hydrographers and·8·

·commissioners you'd find out when they're in·9·

·regulation, it's the 1 to 70 type regulation because10·

·there isn't enough to go around for everybody to get 2,11·

·other than maybe one or two days because the water12·

·isn't there long enough for them to do the calculation13·

·and share it on a pro rata basis for the way the14·

·statute indicates.15·

· · · · · · So it is a creature of our statutes.··It gets16·

·talked about.··Do we operate at that level frequently?17·

·I have to say the answer is no.18·

· · ·· Q.· ·And so just and I do this at my peril, I19·

·guess, to try to just give an example to try to explain20·

·this a little further.··You go from free river so the21·

·State Engineer's Office is not regulating at all?··Go22·

·from free river into regulation.··But that regulation23·

·happens to be to a priority date in 1940; nobody would24·

·be entitled to a second CFS; right?25·



Page 5164

· · ·· A.· ·You're giving me a -- let me do this.··The --·1·

·there has to be enough water in the system for·2·

·everybody who is pre-1945 to have their 1 to 70.··So no·3·

·regulation prior from 1945.··Then everybody that is·4·

·1945 or earlier gets a pro rata share of the second·5·

·depending on how much water is in the system.··And if·6·

·you look at, whether it's the Tongue River in this case·7·

·or the Laramie River or pick another medium-sized river·8·

·in Wyoming, you may be talking hundreds and hundreds of·9·

·water rights.10·

· · · · · · The pro rata work to determine who gets how11·

·much, by the time you finish that calculation you got12·

·to do it again because you've fallen through that flow13·

·rate on the creek already.··So we generally see going14·

·from free river to 1 to 70 type regulation, almost15·

·without evening winking at 2 to 70 on the way by.16·

· · ·· Q.· ·Okay.17·

· · · · · · SPECIAL MASTER:··Can I just ask, just so I18·

·understand exactly how this operates, whether or not19·

·this is relevant.··So as I understand what you're20·

·saying, if there's not enough water in the river for,21·

·say, the senior most appropriator on that river to22·

·receive 1 CFS, then they can call more junior23·

·appropriators in order guarantee their 1?24·

· · · · · · THE WITNESS:··That's correct.25·



Page 5165

· · · · · · SPECIAL MASTER:··But to the degree that·1·

·everybody is getting their 1, if, and let's assume·2·

·there are only pre-1945 appropriators on the river,·3·

·then above that 1 it's done pro rata?·4·

· · · · · · THE WITNESS:··Correct.·5·

· · · · · · SPECIAL MASTER:··And to the degree that there·6·

·are post 1945 appropriators on the river and there's·7·

·enough water, in theory, to give everyone before 1945 1·8·

·CFS and give some water to people who are junior to·9·

·1945, those people who are junior to 1945 don't receive10·

·anything until the pre-1945s all receive 2?11·

· · · · · · THE WITNESS:··That's correct.12·

· · · · · · SPECIAL MASTER:··Okay.··Thanks.··And can I13·

·just ask, do you know why that additional 1 CFS was14·

·provided by statute?15·

· · · · · · THE WITNESS:··I wish I had a good answer.··I16·

·would be speculating on the history of that statute.17·

· · · · · · SPECIAL MASTER:··No, don't worry about it.18·

·I'll ask you some other time when you're not on the19·

·record.20·

· · · · · · MR. BROWN:··I think this is a great time to21·

·take a break, Your Honor, if you please.22·

· · · · · · SPECIAL MASTER:··Thanks.··Let's take a23·

·ten-minute break.··At this point, we'll come back at24·

·ten after the hour.25·



Page 5166

· · · · · · · · · · · (Recess taken 9:59 to 10:09·1·

· · · · · · · · · · · a.m., November 26, 2001)·2·

· · · · · · SPECIAL MASTER:··Okay.··Everyone can be·3·

·seated.·4·

· · · · · · Mr. Brown, you can continue.·5·

· · · · · · MR. BROWN:··Thank you, Your Honor.·6·


· · ·· Q.· ·And one final brief point with regard to·8·

·Wyoming's surplus statute.··When was that statute, when·9·

·did it become law?10·

· · ·· A.· ·Around -- well, it's effective 1945.··It was11·

·sometime after that.12·

· · ·· Q.· ·Prior to 1950?13·

· · ·· A.· ·I think so, yes.14·

· · ·· Q.· ·Let's talk about your involvement with the15·

·Yellowstone River Compact.··What were the issues that16·

·were going on with the Yellowstone River Compact when17·

·you became involved -- or when did you become involved?18·

· · ·· A.· ·I was appointed commissioner to the19·

·Yellowstone River Compact for Wyoming sometime in 2001.20·

·After my appointment as State Engineer.··And I believe21·

·my first formal introduction to the players, the22·

·federal chairman, the members from Montana, the Montana23·

·commissioner, would have been at the 2001 Compact24·

·Commission meeting late in that year.25·



Page 5167

· · · · · · I had Sue working for me at the time, who was·1·

·quite familiar with the commissions around the state --·2·

·the Bear, the Yellowstone, and others -- and I'm sure·3·

·that she and I talked about what was going on in the·4·

·Yellowstone at the Compact Commission meetings.·5·

· · · · · · Certainly, at that time, when I started, some·6·

·of the bigger issues in the state were the drought in·7·

·general, in all the basins.··Coalbed natural gas was·8·

·kicking off and getting quite busy in that period.·9·

·Those would have been two topics.··I think there was10·

·the water quality program that Sue talked about11·

·yesterday, to a lesser extent.··And just the overall12·

·operations on our side of the border up in that13·

·country, in the Powder and Tongue, Big Horn.14·

· · ·· Q.· ·And just so our record is clear, when you15·

·reference Sue today, which I expect you will more than16·

·once, do you mean Sue Lowry?17·

· · ·· A.· ·I do.18·

· · ·· Q.· ·Generally describe with regard to the19·

·Yellowstone River Compact, your relationship with the20·

·Montana representatives.21·

· · ·· A.· ·The relationship with Montana at that time --22·

·and when I started, my counterpart commissioner was23·

·Jack Stults.··And Jack and I had a very good24·

·relationship.··I would have to say that we had a very25·



Page 5168

·good working relationship with the entire Montana·1·

·contingent, and I would hope they would think the same·2·

·of us.·3·

· · · · · · So we had an open relationship.··We could·4·

·talk to each other, as Ms. Lowry mentioned.··I might·5·

·have seen Jack occasionally at other types of meetings·6·

·during the year.··And we would have a cup of coffee and·7·

·talk.··It was a very cordial, professional·8·

·relationship.·9·

· · ·· Q.· ·Okay.··And the annual report is produced10·

·after each annual meeting; is that right?11·

· · ·· A.· ·That's correct.12·

· · ·· Q.· ·And I think you were here for testimony when13·

·some Montana officials have claimed that the USGS tried14·

·to eliminate references to controversy in those15·

·minutes; do you recall that?16·

· · ·· A.· ·I do.17·

· · ·· Q.· ·Do you you agree with that position?18·

· · ·· A.· ·I do not.19·

· · ·· Q.· ·Do you believe that the annual reports and20·

·the minutes accurately reflect what actually happened21·

·at the meetings?22·

· · ·· A.· ·I do.23·

· · ·· Q.· ·If -- in the meetings that you were present24·

·at, do you believe if Montana had made a call those25·



Page 5169

·calls would have been reflected in the annual reports?·1·

· · ·· A.· ·I do.·2·

· · ·· Q.· ·And if Montana had made a call during the·3·

·irrigation season of any of those years, do you believe·4·

·that call would have been reflected in the annual·5·

·report?·6·

· · ·· A.· ·I do.·7·

· · ·· Q.· ·Let's take a look at Exhibit M134, which I·8·

·believe is already admitted.··And that's an e-mail from·9·

·Ms. Lowry to you; is that right?10·

· · ·· A.· ·It is.··It's an e-mail from Sue to me on11·

·November 19th of 2001.12·

· · ·· Q.· ·Is that your handwriting?··I think she13·

·indicated she thought it was.14·

· · ·· A.· ·It is.15·

· · ·· Q.· ·Had you, by this time, 11/19 of '01, the year16·

·that you became Wyoming State Engineer, had you had the17·

·exposure to Yellowstone River Compact issues?18·

· · ·· A.· ·My recollection is that I probably had been19·

·made aware of, for example, the Lou Allen, Dan20·

·Ashenberg work back in the '80s and the fact that it21·

·didn't really result in anything.··But the nature of22·

·what was looked at back in that time.··I was unaware of23·

·any regulation we had ever done for the state of24·

·Montana.25·



Page 5170

· · ·· Q.· ·You'll see in Ms. Lowry's e-mail she makes·1·

·reference to Jack Stults raising the issue of wanting·2·

·to look at Compact administration issues.··What was·3·

·your understanding of that at the time?·4·

· · ·· A.· ·Well, it would have been what I was just·5·

·mentioning.··I think that Compact administration, in my·6·

·mind, was how do we make V, B and V, C work?··And that·7·

·would have been looking into how better can we measure·8·

·our diversions so that the math from those sections can·9·

·work?··Measure changes in storage?··And how can Montana10·

·do the same?··The math goes all the way from Wyoming to11·

·the mouth of the river.··And so if we're going to12·

·administer and allow the limitations that are reflected13·

·in V, B and C to work, we had to figure out how to do14·

·the math.15·

· · · · · · And that's where we struggled, I think, early16·

·on, and didn't get through completely the Ashenberg and17·

·Allen work, which I'm not very familiar with, by the18·

·way, but I know it went on.··And it seemed as though19·

·that's what the states were willing to visit at that20·

·time.··And that's what we ought to be willing to visit21·

·again.22·

· · ·· Q.· ·Okay.··I'm going to show you Exhibit J51.23·

·That's the 2001 Yellowstone River Compact Commission24·

·annual report; right?25·



Page 5171

· · ·· A.· ·It is.·1·

· · ·· Q.· ·And you were present at that meeting?·2·

· · ·· A.· ·I was.·3·

· · ·· Q.· ·I'm going to turn your attention to a·4·

·discussion that occurs on page Roman Numeral IV.··At·5·

·the very top, in the very top paragraph the first·6·

·sentence describes that, "Mr. Stults recommended that·7·

·discussions and close communications among technical·8·

·people be maintained to deal with water availability·9·

·during 2002, particularly in the Tongue River Basin."10·

· · · · · · What was your understanding of the purpose of11·

·those discussions?12·

· · ·· A.· ·My recollection is we'd come off two less13·

·than average years, 2000 and 2001.··Going into the14·

·winter of 2002, if we faced another dry year the states15·

·ought to continue discussing what does that mean for16·

·each of us?··And so it was keeping the lines of17·

·communication open.··The subject here was water18·

·availability.··And so we had to stay in contact with19·

·each other to sort of see what's coming and prepare for20·

·it.21·

· · ·· Q.· ·And what did you contemplate with -- as being22·

·the findings and recommendations that might be produced23·

·as a result of those technical discussions?24·

· · ·· A.· ·At this stage I think we were looking at25·



Page 5172

·education.··We had to understand better, make ourselves·1·

·available.··Montana wanted to know what our water uses·2·

·looked like.··And as I recall, we didn't have·3·

·forecasting.··I think we wanted to make sure we knew·4·

·where the gauges were and what the water supply·5·

·situation was going to be and how would we know that.·6·

· · ·· Q.· ·To your knowledge, did the meeting that was·7·

·contemplated by that passage, did it happen?·8·

· · ·· A.· ·It did.··I believe Ms. Lowry talk yesterday·9·

·about the meeting that occurred in mid-January of '02.10·

· · ·· Q.· ·I'm going to show you Exhibit J52.··And11·

·Exhibit J52 is the 2002 annual report of the Compact12·

·Commission; is that right?13·

· · ·· A.· ·Yes.14·

· · ·· Q.· ·And you were at that meeting as well?15·

· · ·· A.· ·I was.16·

· · ·· Q.· ·I'm going to turn your attention to page17·

·Roman Numeral III, the very last paragraph on that18·

·page.··And the opening sentence of that paragraph says,19·

·"The commissioners discussed the need for and benefit20·

·of planning for the current and continuing drought21·

·situation and agreed to a meeting of technical22·

·specialists in late March of 2003."23·

· · · · · · And with regard to your agreement of the24·

·meeting of the technical specialists, what was it you25·



Page 5173

·were hoping to accomplish at this point in time?·1·

· · ·· A.· ·When the meeting that occurred early in 2002·2·

·was finished, they -- that group thought that maybe·3·

·they didn't need to meet again.··And the commissioners,·4·

·I guess, felt otherwise.··We could see that 2002,·5·

·again, was not a very good year.··And we wanted those·6·

·technical people to stay engaged.·7·

· · · · · · We, I think, knew by that time that there·8·

·were things on each side the of border that were·9·

·unclear to some of us.··How Wyoming irrigated, what the10·

·water supply was on our side, what our uses were.11·

·There was education that we could receive out of12·

·Montana on the other side.13·

· · · · · · So I think our goal there as captured at the14·

·bottom of that paragraph, Ms. Lowry's summary of what15·

·the commissioners talked about, let's look into16·

·forecasting methods and information; let's summarize17·

·what we know of current and historical operations; and18·

·begin to enter the discussion of water operational19·

·issues; and make some recommendations to the20·

·Commission.21·

· · ·· Q.· ·Okay.··And is it fair to say that by this22·

·point in time, at the end of 2002, that everybody was23·

·well aware there was a drought going on?24·

· · ·· A.· ·I think that's a fair statement in 2002.··And25·



Page 5174

·my recollection around the state of Wyoming was one of·1·

·the worst years maybe ever.·2·

· · ·· Q.· ·And in your limited involvement in 2001 or in·3·

·2002, did any Montana water official ever request that·4·

·you turn off any Wyoming water rights for the benefit·5·

·of Montana?·6·

· · ·· A.· ·No, they did not.·7·

· · ·· Q.· ·Was Wyoming, in fact, as a result of the·8·

·drought, curtailing its water uses already?·9·

· · ·· A.· ·We were heavily into regulation that summer.10·

·And we're in regulation in basins virtually every11·

·summer.··So it's a matter of how early does it start as12·

·a result of the scarcity of water that summer.··So,13·

·yes, intrastate regulation was going on.14·

· · ·· Q.· ·I'm going to show you Exhibit J54.··And15·

·that's the 2004 annual report of the Compact16·

·Commission; right?17·

· · ·· A.· ·It is.18·

· · ·· Q.· ·And I want to, with regard -- or at least at19·

·this time -- discuss references to the April 15th,20·

·2004, Commission meeting.··Were you at that meeting?21·

· · ·· A.· ·I believe I was.22·

· · ·· Q.· ·And I want to draw your attention to page23·

·Roman Numeral III.··And I'm looking at the fourth24·

·paragraph from the bottom.··Are you there?25·



Page 5175

· · ·· A.· ·I think I am.·1·

· · ·· Q.· ·That paragraph starts, "Mr. Stults stated his·2·

·desire for the Commission to establish a process for·3·

·developing some type of plan for water management in·4·

·accordance with the Compact on an annual basis or as·5·

·needed.··Mr. Tyrrell recommended sharing all pertinent·6·

·administrative and technical information in defining·7·

·specific issues that would need to be addressed in a·8·

·plan.··Mr. Stults concurred."·9·

· · · · · · Just describe for us a little more fully10·

·what's meant by what's discussed there.11·

· · ·· A.· ·Well, clearly at that point we didn't even12·

·have a plan.··And that was the basis for the13·

·statements, I believe.··I think the key statement there14·

·is "in accordance with the Compact."··And Jack15·

·articulated that, we got to look at this Compact, see16·

·where its flexibility is, and what we can do as states17·

·to operate under it in the face of this drought.··But18·

·at that point we were still outlining what that plan19·

·might be.20·

· · ·· Q.· ·And this is in April of 2004; right?21·

· · ·· A.· ·Right.22·

· · ·· Q.· ·And Montana made its first call in May of23·

·2004; right?24·

· · ·· A.· ·Correct.25·



Page 5176

· · ·· Q.· ·Did, at this meeting, anybody from Montana·1·

·ask you to turn off any Wyoming water rights?·2·

· · ·· A.· ·They did not.·3·

· · ·· Q.· ·Did the ask you to take any sort of·4·

·regulatory action at all?·5·

· · ·· A.· ·They did not.·6·

· · ·· Q.· ·Let's take a look at Exhibit J64.··And that·7·

·is Montana's May 18th, 2004, call letter; right?·8·

· · ·· A.· ·It is.·9·

· · ·· Q.· ·And I want to focus, to begin with, on the10·

·first paragraph of Exhibit J64.··And that first11·

·sentence says -- and this is from Mr. Stults to you;12·

·right?13·

· · ·· A.· ·It is.14·

· · ·· Q.· ·It says, "This is the letter I mentioned15·

·would follow our telephone call regarding the current16·

·need for administration of the Compact."17·

· · · · · · When was that telephone call, and what was18·

·talked about?19·

· · ·· A.· ·I don't recall the exact date.··But it was20·

·within a week prior to receiving this letter.··I'm sure21·

·he indicated to me that a letter with his needs was22·

·coming.··I don't recall if he mentioned the word "call"23·

·on the phone.··He may or may not have.··I just don't24·

·recall that.25·



Page 5177

· · ·· Q.· ·At that time during your telephone call, did·1·

·he ask you to regulate anything in Wyoming, do you·2·

·recall?·3·

· · ·· A.· ·I don't recall if he had during the phone·4·

·call, but my feeling is that I would have waited for·5·

·the letter to show up anyway to see exactly the words·6·

·behind the request.·7·

· · ·· Q.· ·Okay.··The next sentence says, "Also, at the·8·

·Yellowstone River Compact mission meeting in April, I·9·

·agreed to send you a letter stating our concerns and10·

·needs."11·

· · · · · · What do you recall him stating at the12·

·April 15th meeting with regard to sending you a letter?13·

· · ·· A.· ·I don't recall the detail.··I do recall that14·

·we were probably going to get a communique of some sort15·

·from Jack about Montana's situation, their concerns.··I16·

·don't recall the gravity that may have been put behind17·

·the letter.··But it certainly was evident in the letter18·

·when we got it in May.19·

· · ·· Q.· ·And the next sentence says, "As you know from20·

·our recent discussions, Montana is receiving21·

·insufficient water to satisfy our developed and22·

·protected pre-1950 appropriative rights."23·

· · · · · · Do you know what discussions he's talking24·

·about there?25·



Page 5178

· · ·· A.· ·It may have been in reference to discussions·1·

·that were held at the April meetings when they were·2·

·describing their situation.·3·

· · ·· Q.· ·So when they were describing their situation·4·

·and there was discussion with regard to the drought and·5·

·need for planning in April of 2004, were they·6·

·discussing the previous years when they'd experienced·7·

·drought and shortages?·8·

· · ·· A.· ·I think probably.··I think we were both·9·

·commiserating over the fact that we had water rights10·

·that were pre-Compact in both states that were barely11·

·on in those years.··Heavy regulation in Wyoming12·

·certainly.··And I know Jack had a very similar13·

·situation.14·

· · ·· Q.· ·Let's turn to the second page of Exhibit J64.15·

·And I'm looking at the larger middle paragraph on the16·

·second page.··And I understand and do you understand17·

·that paragraph to be the main part of this letter,18·

·where Mr. Stults is indicating what he would like19·

·Wyoming to do?20·

· · ·· A.· ·I think that this is the paragraph that21·

·defines the nature of the call as he intended.22·

· · ·· Q.· ·What is it you thought Montana wanted you to23·

·do?24·

· · ·· A.· ·Well, as I read this paragraph, it says, "We25·



Page 5179

·are calling for all pre-1950 junior water in Wyoming to·1·

·satisfy our senior pre-1950 water on the Tongue and·2·

·Powder Rivers."··To me that's regulating off·3·

·pre-Compact per pre-Compact.··That's the interstate·4·

·priority schedule for the preexisting rights as of the·5·

·signing of the Compact that I did not see in the·6·

·Compact.·7·

· · ·· Q.· ·And what was your understanding with regard·8·

·to what Mr. Stults wanted Wyoming to do related to·9·

·storage water?10·

· · ·· A.· ·Well, the request was pretty clear.··He said11·

·Wyoming is currently storing 9369 acre-feet of12·

·post-1950 water in the Tongue and 214,722 acre-feet of13·

·post-1950 in the Powder.··And he requests that all14·

·these stored waters be immediately released.15·

· · ·· Q.· ·Did you have a concern with regard to that?16·

· · ·· A.· ·I had a couple of concerns:··Number one, I17·

·thought the 9369 acre-feet number was wrong.··In my18·

·response letter I tried to correct that.··I think we19·

·had not stored that much.··That was the capacity of20·

·post-'50 space.··It did not reflect how much water was21·

·in that capacity.22·

· · · · · · Secondly, I had a concern that all post-'5023·

·water, regardless of when it was stored, be immediately24·

·released.··The large number in the Powder reflected25·



Page 5180

·Lake DeSmet, for example.··A lot of that water has been·1·

·in that reservoir for many years.··And the request, as·2·

·I saw it, was really curious because apparently, water·3·

·that we weren't using or taking out of the system on an·4·

·annual basis was being called to be released to·5·

·Montana.··And I could not agree with that.·6·

· · ·· Q.· ·Did you have an understanding about whether·7·

·Montana had the ability to catch 200,000 acre-feet if·8·

·you sent it to them?·9·

· · ·· A.· ·They did not on the Powder.10·

· · ·· Q.· ·Did you have a belief that there was some11·

·disconnect between what Montana thought was going on in12·

·Wyoming and what actually was going on in Wyoming?13·

· · ·· A.· ·That was a primary concern of mine at that14·

·time was, I didn't know if our operations in Wyoming15·

·and where we were regulated, what our water uses were,16·

·how we operated our storage, I'm not sure that that was17·

·clear to Montana.··And I had this feeling that if I18·

·could just explain that and show them, that we could19·

·clear up that disconnect.··There was a feeling, I20·

·think, that somehow we had a lot of use going on that21·

·we were either trying to hide or was unknown to folks22·

·on the other side of the border.··And I really would23·

·have liked to explain all that and open up the Wyoming24·

·side the of border and show it.25·



Page 5181

· · ·· Q.· ·During this period of time, was there --·1·

·what's your thoughts with regard to the amount of·2·

·irrigation that was going on related to CBM produced·3·

·water?·4·

· · ·· A.· ·Oh, at this time, there was some irrigation·5·

·going on relative to CBM.··Primarily in -- not on the·6·

·drainages coming off the mountain, but as you got·7·

·further east, both in the Powder River and in the·8·

·eastern part of the Tongue River Basin, Prairie Dog a·9·

·little bit, for example.10·

· · ·· Q.· ·What did you do after you received Montana's11·

·letter?12·

· · ·· A.· ·Well, my very first action was probably to13·

·make sure my senior managers saw it.··That would have14·

·been Ms. Lowry, Mike Whitaker, my deputy, and the15·

·Attorney General's representative.16·

· · · · · · Following that, we began to gather17·

·information.··I communicated with Mike Whitaker and his18·

·staff about gathering storage data, streamflow data.··I19·

·think we even requested streamflow data from the USGS.20·

·I wanted to get a picture for what was going on on the21·

·ground.22·

· · ·· Q.· ·I'm going on show awe Exhibit J65.··And that23·

·is your response to Mr. Stults dated May 24th, 2004;24·

·right?25·



Page 5182

· · ·· A.· ·Yes.·1·

· · ·· Q.· ·Let me direct you, to first, the second·2·

·paragraph on the first page.··And just describe what·3·

·you were trying to clarify with that paragraph.·4·

· · ·· A.· ·That paragraph tried to clear up the·5·

·post-Compact storage number that I thought was in error·6·

·in Jack's letter.··Following gathering data and·7·

·information from my staff, I replied -- well, what I·8·

·did here, I think he was referring to the April·9·

·technical meeting.··So what we did was correct the fact10·

·that the number he presented was the capacity.··And I11·

·provided him the stored amount to correct that number.12·

· · ·· Q.· ·And if you'll turn to the second page and the13·

·second paragraph from the top or the first full14·

·paragraph on the second page.··In that first sentence15·

·of that paragraph, you describe your statement that16·

·"the Compact makes no provision for any state to make a17·

·call on a river."18·

· · · · · · Explain that more fully for us, please.19·

· · ·· A.· ·The easiest explanation of that is the20·

·Compact doesn't have a curtailment provision or a call21·

·provision like some of our other compacts do.··So it's22·

·a very straightforward statement.··The only way that I23·

·can see pre versus post being managed in the Compact is24·

·in V, B and C.··And I did not understand the Compact at25·



Page 5183

·all to include any interstate priority schedule for·1·

·pre-Compact rights.·2·

· · ·· Q.· ·Was it your understanding that Montana was·3·

·asking to have a pure interstate priority regulation·4·

·scheme?·5·

· · ·· A.· ·Well, they had asked me to regulate off my·6·

·junior pre-Compact rights for their senior pre-Compact·7·

·rights.··And that to me is an interstate priority·8·

·schedule.··I would presume that my senior pre-'50·9·

·rights would be able to continue to operate.··And that,10·

·to me, was the interstate priority schedule for11·

·pre-Compact rights that I did not believe was in the12·

·Compact.13·

· · ·· Q.· ·So if I understood your testimony correctly a14·

·moment ago, your focus was with regard to look on V, B15·

·and V, C; is that right?16·

· · ·· A.· ·It was; correct.17·

· · ·· Q.· ·And is that what your discussion is in the18·

·fourth paragraph on page II?19·

· · ·· A.· ·The paragraph that begins "Once I have a20·

·report back"?21·

· · ·· Q.· ·Yes, sir.22·

· · ·· A.· ·Yes.··That's my theory of how I could have23·

·responded at that time.··It struck me that our pre-'5024·

·Compact rights were protected by the Compact and were25·



Page 5184

·essentially self-regulating.··However, our post-'50·1·

·uses in both states are allowed a proportion under·2·

·Article V, B.··To the extent that any post-'50 use was·3·

·going on, Wyoming got some of that.·4·

· · · · · · And I did not see, though, in the Compact·5·

·that there was a -- the ability to call from pre to·6·

·post.··That the post numbers, the post uses were·7·

·managed under the Compact through V, B and C.··And if·8·

·you looked at the math in V, C, if there's any water·9·

·going out the mouth, which is part of the calculation,10·

·I get some fraction of that.··And whether or not we11·

·even had a small amount of post-'50 on, some of that12·

·water was due Wyoming.··At least that was my13·

·understanding at that time.14·

· · ·· Q.· ·And if you look in the middle of that15·

·paragraph on page II, there's a part it says -- excuse16·

·me -- part of a sentence that says, "Our work will be17·

·of little value unless Montana also provides an18·

·accounting of its storage over the same period."19·

· · · · · · Did you think it was important to learn what20·

·Montana was doing on its side of the line?21·

· · ·· A.· ·I absolutely did.22·

· · ·· Q.· ·Why?23·

· · ·· A.· ·Well, let me draw a comparison.··On the North24·

·Platte, even over Wyoming's objection and hence, the25·



Page 5185

·Compact or the decree point is the Wyoming/Nebraska·1·

·state line.··100 percent of that compliance is on·2·

·Wyoming.·3·

· · · · · · And we understand that.··This Compact is·4·

·written to where it invokes both states.··It goes clear·5·

·to the Compact point near the mouth at Miles City.·6·

· · · · · · If you look in V, B and C, especially C, you·7·

·will see that uses, diversions on both sides, storage·8·

·on both sides of the state line is included in how you·9·

·manage under the Compact.··Certainly under V, B and C.10·

· · · · · · So it was part and parcel of the construction11·

·of the Compact that uses in both states matter.··And I12·

·thought that meant that if I had questions before -- or13·

·in the face of a letter like this, that that geographic14·

·extent of the limits of the Compact allowed me to ask15·

·questions too.··And I thought that was fair.16·

· · ·· Q.· ·And at this point in time, did you have any17·

·reason to believe that Wyoming was using more than its18·

·40 percent of the allocated post-'50 use of the water?19·

· · ·· A.· ·I did not.20·

· · ·· Q.· ·Did you suggest to Montana in your letter21·

·setting up some meeting dates to discuss the issues?22·

· · ·· A.· ·We did.··I had suggested early June at the23·

·very end of the letter.24·

· · ·· Q.· ·Okay.··And after providing your response, did25·



Page 5186

·you or your staff continue to work on the issues?·1·

· · ·· A.· ·We did.·2·

· · ·· Q.· ·What did do you?·3·

· · ·· A.· ·Continued to gather information.··And we were·4·

·trying to set up a meeting with Montana so that we·5·

·could sit down and meet with them face-to-face.··This·6·

·was an important issue to me.·7·

· · ·· Q.· ·Let's take a look at Exhibit W75.··Do you·8·

·recognize that document?·9·

· · ·· A.· ·I do.10·

· · ·· Q.· ·What is it?11·

· · ·· A.· ·This is an e-mail from Bob Davis with the12·

·USGS, to me on May 25th of '04.13·

· · · · · · MR. BROWN:··I'd like to offer Exhibit W75.14·


· · · · · · SPECIAL MASTER:··Exhibit W75 is admitted.16·


·BY MR. BROWN:18·

· · ·· Q.· ·What was the purpose of this e-mail?19·

· · ·· A.· ·He was responding to my request for flow data20·

·at these three gauges.··This would have been Tongue21·

·River at state line, Tongue River at the dam, and22·

·Tongue River at Miles City for the water year up to23·

·whenever he had current data.··And that was what he24·

·provided me.25·



Page 5187

· · ·· Q.· ·Why was this information important?·1·

· · ·· A.· ·Again, I was looking on both sides of the·2·

·state line.··I had my guys evaluating where we were at·3·

·on our side, and I wanted to know who was going on in·4·

·the river in Montana faced with that letter.·5·

· · · · · · I did note that 50 or 60 percent of the flow·6·

·that had crossed the state line from October to that·7·

·point was represented inflow out the mouth.··And so I·8·

·guess what I'm trying to figure out is, if there's·9·

·water leaving the system in that quantity, that's -- I10·

·wanted to know that.··Because if I were even to11·

·consider regulating under the terms of the call letter,12·

·where was that water going to go?··Well, maybe 50 or13·

·60 percent is going to flow out the mouth.··I wanted to14·

·know what was going on in the river in Montana.15·

· · ·· Q.· ·Okay.··I'm going to show you Exhibit W76.16·

·And I believe this one is admitted.17·

· · · · · · THE CLERK:··Yes, it is.18·

·BY MR. BROWN:19·

· · ·· Q.· ·This is an e-mail exchange between you and20·

·Mr. Stults; is that right?21·

· · ·· A.· ·It is.22·

· · ·· Q.· ·What was the purpose of this e-mail23·

·exchanges?24·

· · ·· A.· ·This e-mail exchange occurred -- the top date25·



Page 5188

·is June 9th.··And it was in preparation for a meeting·1·

·that we had set up on the 10th.··And that meeting was·2·

·going to be in person.··And we were talking about -- I·3·

·think, Jack had requested that we bring our legal·4·

·counsel to the meeting.··And I was trying to -- at·5·

·least my first reaction was, let's don't.··Let's talk·6·

·about the technical issues that are in play here.··As·7·

·much as I like my attorneys, at that meeting, I wanted·8·

·the technical people there.··And see what we could --·9·

·see if there was something one of us was missing10·

·technically.11·

· · · · · · And so my reaction, the top where I say,12·

·"Well, whatever differences we have should not be13·

·anything we (as states) didn't discuss in the '80s,"14·

·what I was referring to there was the Ashenberg/Lou15·

·Allen stuff where we did have quite a few meetings and16·

·we were talking about probably very similar stuff:17·

·administration, water supply, how do we know what's18·

·going on on both sides?··And I thought we could do that19·

·technically.20·

· · ·· Q.· ·Okay.··I'm going to take a look at Exhibit21·

·W313.··And do you recognize that document?22·

· · ·· A.· ·I do.23·

· · ·· Q.· ·What is it?24·

· · ·· A.· ·This was an internal document that we25·



Page 5189

·prepared in preparation for the June 10th meeting so·1·

·that we would have certain questions prepared in·2·

·advance.·3·

· · ·· Q.· ·Was it draft by you or under your direction?·4·

· · ·· A.· ·It was.·5·


· · · · · · MR. DRAPER:··Your Honor, at the deposition·7·

·the witness could not identify this exhibit.··So I·8·

·think it would be appropriate to explain how he can·9·

·identify it now when he couldn't at the time of the10·

·deposition.11·

· · · · · · THE WITNESS:··I guess, it looks like the12·

·questions we put together and --13·

·BY MR. BROWN:14·

· · ·· Q.· ·Let me ask you.15·

· · ·· A.· ·Okay.16·

· · ·· Q.· ·Was there a meeting scheduled between these17·

·states for June 10th of 2004?18·

· · ·· A.· ·There was.19·

· · ·· Q.· ·And prior to that meeting, did you and your20·

·staff develop questions to ask of Montana at that21·

·meeting?22·

· · ·· A.· ·We did.23·

· · ·· Q.· ·Did you get together to describe your24·

·concerns or positions with regard to the call that25·



Page 5190

·happened on May 18th, 2004?·1·

· · ·· A.· ·Internally?·2·

· · ·· Q.· ·Yes.·3·

· · ·· A.· ·Yes, we did.·4·

· · ·· Q.· ·Did you put some of those together for the·5·

·purpose of presenting those to Montana at the·6·

·June 10th, 2004, meeting?·7·

· · ·· A.· ·We did.·8·

· · ·· Q.· ·Are those reflected accurately in Exhibit·9·

·W313?10·

· · ·· A.· ·I believe they are, Mr. Brown.11·


· · · · · · SPECIAL MASTER:··It will be admitted.13·


·BY MR. BROWN:15·

· · ·· Q.· ·Generally, what questions did you have for16·

·Montana for this first June 10th meeting?17·

· · ·· A.· ·There were some points of clarification we18·

·wanted to get from them.··Those are brought up early in19·

·this list.··We did have some questions about water20·

·administration in Montana.··We didn't know if there21·

·were uses or any effects of tributaries in Montana.22·

·It's largely a list of things that we were simply23·

·uncertain about in terms of operations in Montana.24·

· · · · · · On the second page we understood there was25·



Page 5191

·some type of instream flow or flow out of the dam.··We·1·

·didn't know how it was quantified.··We thought it ought·2·

·to -- if it wasn't in existence at the time of the·3·

·Compact it ought to be considered post-Compact.··And·4·

·questions like that.··I think we were also trying to·5·

·determine in our own mind, what areas do we feel·6·

·free -- that out to be talked about at the meeting that·7·

·was coming up.··Were there any areas for future·8·

·negotiation?·9·

· · ·· Q.· ·I want to draw your attention specifically to10·

·the next to last item on the second page of11·

·Exhibit 313, the discussion there.··And tell us what12·

·you meant by what's indicated in that short paragraph.13·

· · ·· A.· ·The next to last on the second page.··"If14·

·Montana and Wyoming"?15·

· · ·· Q.· ·Yes, sir.16·

· · ·· A.· ·"Agree to continue administration issues,17·

·should the USGS be involved?"··And are they18·

·state-to-state discussions or are these under the19·

·auspices of the Commission?··I think that question was20·

·there because the USGS would have been sort of the21·

·objective data source.··And they could be relied upon22·

·to give us good numbers on both sides.··And to23·

·determine whether or not these were truly24·

·state-to-state discussions or whether it fell under the25·



Page 5192

·auspices and abilities, authorities of the Commission.·1·

· · · · · · So that was probably a predecessor to should·2·

·we invoke at some point the dispute resolution·3·

·procedures that the Commission had adopted.·4·

· · ·· Q.· ·And to your recollection did Wyoming present·5·

·these questions and positions to Montana at that·6·

·June 10th meeting?·7·

· · ·· A.· ·I believe we would have likely spoken from·8·

·this document.·9·

· · ·· Q.· ·Take a look at exhibit --10·

· · · · · · MR. BROWN:··Your Honor, this is probably a11·

·decent place to take a second break, if you please.12·

· · · · · · SPECIAL MASTER:··Okay.··This sounds fine to13·

·me also.··So why don't we take a ten-minute break.··And14·

·then we'll come back at about the hour.15·

· · · · · · · · · · · (Recess taken 10:52 to 11:0616·

· · · · · · · · · · · a.m., November 26, 2013)17·

· · · · · · SPECIAL MASTER:··Okay.··Everyone can be18·

·seated.19·

· · · · · · And Mr. Brown, can you continue your direct20·

·examination.21·

· · · · · · MR. BROWN:··Thank you, Your Honor.22·

·BY MR. BROWN:23·

· · ·· Q.· ·And to identify our placeholder in time, we24·

·just got done discussing questions your office had25·



Page 5193

·prepared for the June 10th meeting with Montana.·1·

· · · · · · And I believe the Special Master asked·2·

·Ms. Lowry this question yesterday, but what was the·3·

·reason you were meeting?··What was the purpose of the·4·

·meeting on June 10th?·5·

· · ·· A.· ·At the end of my response letter to·6·

·Mr. Stults on May 24, I described why I thought we·7·

·ought to meet.··And the words are hoping we can come to·8·

·an understanding about the operation of the Compact·9·

·without elevating the issue unnecessarily.··And that10·

·"Due to the seriousness of the matters outlined in your11·

·letter, I believe that we as commissioners first need12·

·to address some basic Compact concepts before we ask13·

·the technical committee to become involved," which was14·

·one of Jack's requests.15·

· · · · · · And I think I was of a mind at that time that16·

·we had a basic disconnect.··We were addressing a letter17·

·that at the very beginning asked me to do a interstate18·

·priority administration for pre-Compact rights.··And I19·

·think we had a basic threshold question there of where20·

·is that in the compact?21·

· · · · · · So I thought, one of the reasons for the22·

·meeting, in addition to describing the situation in our23·

·states, and maybe why I responded the way I did, was to24·

·have that, you know, basic discussion of where are we25·



Page 5194

·even on what this Compact allows to happen?·1·

· · ·· Q.· ·Okay.··And, of course, you did meet on·2·

·June 10, 2004; is that right?·3·

· · ·· A.· ·We did, in Sheridan, I believe.·4·

· · ·· Q.· ·I'm going to show you Exhibit M170.··And do·5·

·you recognize that document?·6·

· · ·· A.· ·I do.·7·

· · ·· Q.· ·What is it?·8·

· · ·· A.· ·This is a briefing I prepared for my governor·9·

·on June 14th of 2004, regarding the June 10th meeting.10·

· · ·· Q.· ·Is this -- is it fair to say this is a11·

·general -- excuse me.12·

· · · · · · MR. BROWN:··I'd like to offer Exhibit M170.13·


· · · · · · SPECIAL MASTER:··Okay.··Thank you,15·

·Mr. Draper.16·

· · · · · · Then Exhibit M170 is admitted.17·


·BY MR. BROWN:19·

· · ·· Q.· ·Is it fair to say this is just a general20·

·summary of what took place at that June 10, 2004,21·

·meeting?22·

· · ·· A.· ·It's an update for him on how things were --23·

·how the meeting went following the call letter and my24·

·response to the call and then the meeting we held25·



Page 5195

·face-to-face.·1·

· · ·· Q.· ·Did you brief the governor prior to the·2·

·meeting as well?·3·

· · ·· A.· ·I believe I did.··Just to let him know what·4·

·we were dealing with on the Tongue.·5·

· · ·· Q.· ·Why did you feel it was necessary to brief·6·

·the governor on this issue?·7·

· · ·· A.· ·Because we had a call letter sovereign to·8·

·sovereign that rose quite high, in my mind, in·9·

·importance, that he ought to know about.··It involved a10·

·interstate Compact which was state and federal law.··I11·

·couldn't respond to it in the way Jack had asked.··And12·

·I wanted the governor to know why, as his water guy.13·

·So that he would be up to speed on something that was14·

·important to the state of Wyoming and certainly to that15·

·part of the state of Wyoming.16·

· · ·· Q.· ·Direct your attention to the opening17·

·sentence.··It says, "The meeting on June 10th was18·

·surprising.··Montana really does expect Wyoming to19·

·enter into an interstate priority schedule for20·

·pre-January 1, 1950, (pre-Compact) water rights,21·

·particularly on the Tongue and Powder Rivers."22·

· · · · · · So was Montana's position at the June 10th23·

·meeting the same as you had interpreted the24·

·May 18th letter to be?25·



Page 5196

· · ·· A.· ·It was.··And that was one of the points of·1·

·our discussion at the meeting was, obviously, when this·2·

·happened, we were doing internal work.··And I could·3·

·see -- I mean I made the comment here that under·4·

·Montana's arguments, bullet item No. 1, that the two·5·

·states did, in fact, agree at that time the Compact was·6·

·written on interstate apportion Compact rights, but it·7·

·didn't end up in the Compact.··What I found very·8·

·interesting was, I think it was Mr. Moy expressing·9·

·that, well, just because they talked about it doesn't10·

·mean it didn't end up in the Compact.··It's something11·

·that we can -- it's still on the table.··And I could12·

·not follow that reasoning.··I didn't see it in the13·

·Compact.··I did not think this was on the table.14·

· · ·· Q.· ·And at the June 10, 2004, meeting were15·

·Montana and Wyoming ever able to come to a resolution16·

·with regard to that issue?17·

· · ·· A.· ·I don't think we did at that meeting.··We18·

·agreed at the end to exchange a bunch of information.19·

· · ·· Q.· ·And what would be the purpose of exchanging20·

·the information.21·

· · ·· A.· ·Because of the disconnect that I thought was22·

·still evident between how we -- we're factually on the23·

·ground.··Separate from the Compact discussion we were24·

·having, I think the concern that Montana expressed25·



Page 5197

·about all those expanded uses in Wyoming were -- there·1·

·was that general sense that we felt we had some,·2·

·almost -- the feeling was almost as though we had a·3·

·coal fired power plant hiding with water cooled behind·4·

·Sheridan somewhere and weren't telling anybody about·5·

·it.·6·

· · · · · · So I think the idea was, let's continue to·7·

·share.··Ask us what you want.··What information that we·8·

·have can we give you?··And then certainly as the summer·9·

·went on the talk of a tour came up.··So we were trying10·

·to say, if there's a misunderstanding here of how we're11·

·using our water and how much we're using, come on up12·

·and look around for yourself.13·

· · ·· Q.· ·I'm going to show you Exhibit W79.··And do14·

·you recognize that document?15·

· · ·· A.· ·I do.16·

· · ·· Q.· ·What is it?17·

· · ·· A.· ·It's an e-mail from me to some of my staff18·

·and Hugh McFadden with the Attorney General's Office19·

·with some questions.··It's dated June 14th of 2004.20·




·Mr. Draper.24·

· · · · · · Exhibit W79 is admitted.25·



Page 5198



· · ·· Q.· ·What was the purpose of this e-mail?·3·

· · ·· A.· ·To articulate some items that I was going to·4·

·ask staff to develop for me.··The first bullet item was·5·

·additional or further review of the upper gauges on Big·6·

·Goose, Little Goose, and the Tongue River.··One thing·7·

·that Montana had expressed as a concern of theirs was·8·

·our moving to sprinklers.··And I thought there might be·9·

·some value of looking at those gauges over time to see10·

·if maybe some changes had occurred that could only be11·

·attributable to sprinklers, to see if there was any12·

·effect that could be seen.13·

· · · · · · The second one went to the interstate14·

·priority schedule question that we had heard twice now.15·

·Once in the letter, and once at the June 10th meeting.16·

·Re-dig back through the files and see if we could find17·

·anything else in there that described that issue.18·

· · ·· Q.· ·Tell us about the PS note in that e-mail.19·

· · ·· A.· ·Oh, periodically, I would have a cup of20·

·coffee with Floyd Bishop, former State Engineer, now my21·

·stepfather.··And very old and frail, but still around.22·

·But as a former State Engineer, I found it valuable to23·

·me personally to occasionally sit down with Floyd and24·

·sort of bounce off of him some of the problems of the25·



Page 5199

·day and see how he might advise me on that or if he·1·

·could recollect things.··And as we were working now·2·

·under a Compact that he worked under, and his father·3·

·was State Engineer when it was crafted, I just thought·4·

·maybe I could learn something from him.·5·

· · ·· Q.· ·Okay.··Let's take a look at Exhibit W80.··Do·6·

·you recognize that document the?·7·

· · ·· A.· ·I do.·8·

· · ·· Q.· ·What is it?·9·

· · ·· A.· ·This is a series of e-mails.··The top one is10·

·from Mike Whitaker of my staff to Sue on June 14th,11·

·2004.··And it's responding to the one we just talked12·

·about.13·



· · · · · · SPECIAL MASTER:··Okay.··Thank you.16·

· · · · · · W80 is admitted.17·


·BY MR. BROWN:19·

· · ·· Q.· ·Can you just briefly describe what20·

·Mr. Whitaker is relating with regard to your request?21·

· · ·· A.· ·I think his indication here is that the Big22·

·Goose gauge had been relocated, telling me that if23·

·we're going to look for trends in the gauge as a result24·

·of going to sprinklers, that that one may not be a good25·



Page 5200

·candidate because when you move it the record may·1·

·change a little bit and may mask any effect of the·2·

·irrigation change.·3·

· · ·· Q.· ·So describe what you were doing at this point·4·

·with regard to trying to figure out the effective·5·

·sprinklers?··Why were you doing that?·6·

· · ·· A.· ·That was one of Montana's concerns.··It may·7·

·have been in their May 18th letter that Wyoming had·8·

·changed irrigation methods in a number of our fields·9·

·going from the historic flood irrigation to the more10·

·current practice of center pivots and side rolls and11·

·sprinklers.12·

· · ·· Q.· ·Did Montana more fully explain that position13·

·at the June 10th meeting?14·

· · ·· A.· ·They may have.··I didn't have the notes of15·

·that meeting in front of me.··But certainly that was a16·

·concern of theirs.17·

· · ·· Q.· ·Okay.··Going to show you Exhibit W81.··Do you18·

·recognize that document?19·

· · ·· A.· ·This is another e-mail from Mike Whitaker of20·

·my staff to me, dated June 15th, 2004, on the Tongue21·

·River data.22·






Page 5201

· · · · · · W81 is admitted.·1·



· · ·· Q.· ·And was this e-mail in relation to just that·4·

·information gathering effort?·5·

· · ·· A.· ·It was.·6·

· · ·· Q.· ·I'm going to go through some of these·7·

·relatively quickly.··I want you to look at Exhibit W82.·8·

·And do you recognize that document?·9·

· · ·· A.· ·I do.10·

· · ·· Q.· ·What is it?11·

· · ·· A.· ·Another e-mail from Mike Whitaker to me dated12·

·June 16th 2004, regarding streamflows.13·




· · · · · · W82 is admitted.17·


·BY MR. BROWN:19·


· · ·· A.· ·Again, I think Mike was responding with me to21·

·additional data.··We'd been developing for a little bit22·

·of time information on flows in the creeks up around23·

·Sheridan.··And I think he was transmitting additional24·

·data and responding to my e-mail to him of earlier that25·



Page 5202

·day, it looks like, June 16th.·1·

· · ·· Q.· ·I'm going to direct your attention to what·2·

·appears to be the e-mail you drafted in the middle of·3·

·the page.··And the last sentence, it says, "I think·4·

·you're getting to the heart of the issue."··Do you see·5·

·that?·6·

· · ·· A.· ·I do.·7·

· · ·· Q.· ·What is it you meant by that?·8·

· · ·· A.· ·I was finally getting some data that was·9·

·beginning to form a picture of what was going on on the10·

·river.··We now were looking at and having in front of11·

·us data collected within a couple of weeks that12·

·described how much water Wyoming had to work with and13·

·how much water Montana had to work with because of14·

·their claim of being short.15·

· · · · · · And as that picture became more clear, that16·

·was the heart of the issue to me, is I could at least,17·

·as an engineer -- and understand I kind of like data18·

·and charts and pictures that help me understand an19·

·issue.··As those things were being developed, I could20·

·see the picture beginning to form.··And we didn't have21·

·that before.··So that was what I was finally beginning22·

·to understand.23·

· · ·· Q.· ·Okay.··Let's look at Exhibit W84.··And I24·

·believe this is admitted.25·



Page 5203

· · · · · · SPECIAL MASTER:··So, Peggy, has this been·1·

·admitted?·2·

· · · · · · THE CLERK:··Yes.·3·

· · · · · · SPECIAL MASTER:··Okay.··It has.·4·

· · · · · · MR. BROWN:··Okay.··Thank you.·5·


· · ·· Q.· ·And this is an e-mail exchange between you·7·

·and Mr. Stults; is that right?·8·

· · ·· A.· ·It is.··It's dated June 17th.·9·

· · ·· Q.· ·And what was the purpose of these e-mails?10·

· · ·· A.· ·This is an e-mail string where I think Jack11·

·and I were working to get some meeting set up between12·

·our governors.13·

· · ·· Q.· ·Okay.··And so by this time, there was some14·

·understanding that the governors would get together to15·

·talk about this issue?16·

· · ·· A.· ·I think that is correct, yes.17·

· · ·· Q.· ·Draw your attention to the last paragraph on18·

·that page, that first sentence says -- or on the first19·

·page, I guess -- sentence says, "I wanted to again make20·

·the point that I was quite disappointed to see Rich21·

·Moy's ultimatum in print on Monday."··What is that22·

·referring to?23·

· · ·· A.· ·When we met on June 10th, I thought we had an24·

·understanding that these types of difficult25·



Page 5204

·discussions, to be fruitful, were going to have to roll·1·

·up our sleeves and work on them without trying each·2·

·other in the court of public opinion.··And that·3·

·understanding was that we he would have these meetings.·4·

·And some my be fruitful and parts of them were going to·5·

·be difficult, but they were between us at that point,·6·

·representing our sovereigns.·7·

· · · · · · And immediately after the June 10th meeting,·8·

·I think on June 11th, the release that Sue talked about·9·

·yesterday was in the paper.10·

· · ·· Q.· ·Turn to the next page of Exhibit 84.··At the11·

·top there's a discussion of an iBAG Water Users'12·

·meeting.··What is that, and why were you you telling13·

·Mr. Stults?14·

· · ·· A.· ·The acronym stands for Interim Basin Advisory15·

·Group.··And those are the public groups that are set up16·

·in each basin in Wyoming where the Water Planning17·

·Program is active.··The "I" at the front infers18·

·meetings in between when the plans are actively being19·

·worked on and they are just keeping people at the20·

·table.21·

· · · · · · So what I was informing Jack was the public22·

·was aware of the call letter, my response.··I was23·

·getting questions on what does this mean to Wyoming.24·

·And I was letting him know ahead of time that some of25·



Page 5205

·the stuff we had talked about, at least in terms of·1·

·information and sort of what's going on in the basin, I·2·

·felt it important to make a presentation to those·3·

·groups.·4·

· · · · · · And so I was giving him a courtesy heads-up·5·

·that I would be doing that.·6·

· · ·· Q.· ·Let's take a look at Exhibit W92.··And do you·7·


· · ·· A.· ·I do.·9·

· · ·· Q.· ·What is it?10·

· · ·· A.· ·It's an e-mail from the governor's scheduler11·

·to me on June 23rd.12·

· · ·· Q.· ·Is that your handwriting on the document?13·

· · ·· A.· ·It is.14·

· · · · · · MR. BROWN:··I'd like to admit Exhibit W92.15·





·BY MR. BROWN:20·


· · ·· A.· ·The question that came to me was that the22·

·governor wanted me to contact Governor Martz to see23·

·where they might be able to meet.··So I was being asked24·

·to be somewhat of a liaison and help set up the25·



Page 5206

·governors' meeting.·1·

· · ·· Q.· ·Show you Exhibit W90.··Do you recognize that·2·

·document?·3·

· · ·· A.· ·I do.·4·

· · ·· Q.· ·What is it?·5·

· · ·· A.· ·It's an e-mail from me to Mike Whitaker on·6·

·June 23rd responding to one from him to me.·7·






·BY MR. BROWN:13·

· · ·· Q.· ·Was this just another e-mail with regard to14·

·the information gathering that you were doing?15·

· · ·· A.· ·It was.··He had developed storage amounts and16·

·wanted to know how I wanted to receive that17·

·information.18·

· · ·· Q.· ·Show you Exhibit W91.··Exhibit 91.··Do you19·


· · ·· A.· ·I do.21·

· · ·· Q.· ·What is it?22·

· · ·· A.· ·It's a series of e-mails, again between --23·

·the top one is from Jack to me.··And the one underneath24·

·is from me to Jack.··And, again, it's coordinating25·



Page 5207

·schedule for a governors' meeting.·1·



· · · · · · SPECIAL MASTER:··Okay.··Exhibit W91 is·4·

·admitted.·5·



· · ·· Q.· ·Going to show you Exhibit W97.··And do you·8·

·recognize this document?·9·

· · ·· A.· ·I do.10·

· · ·· Q.· ·What is it?11·

· · ·· A.· ·It's an e-mail from me to staff regarding a12·

·schedule change for the June 30th meeting.13·



· · · · · · SPECIAL MASTER:··Okay.··Exhibit W97 is16·

·admitted.17·


·BY MR. BROWN:19·


· · ·· A.· ·We had been talking about a meeting on21·

·June 30th.··And I think in the body of this, it -- I22·

·had indicated Jack probably had suggested we do a23·

·conference call rather than a meeting.··And I was24·

·agreeable to that, saved a lot of travel.··And25·



Page 5208

·hopefully we could still get through the information.·1·

·So I was letting the staff know of that.·2·

· · ·· Q.· ·Some discussion in here with regard to·3·

·dispute resolution.··Were the states or either state·4·

·considering engaging in a dispute resolution process·5·

·under the Compact?·6·

· · ·· A.· ·There was.··And I think between he and I we·7·

·were trying to figure out whether we do that before or·8·

·after the governors' meeting.·9·

· · ·· Q.· ·I'm going to show you Exhibit W96.10·

· · · · · · MR. BROWN:··Has this been admitted?11·

· · · · · · THE CLERK:··It has, yes.12·

·BY MR. BROWN:13·

· · ·· Q.· ·And I believe this e-mail is admitted.··And14·

·this is an e-mail from you to Ms. Lowry on June 28th;15·

·is that right?16·

· · ·· A.· ·It is.17·

· · ·· Q.· ·And what was the purpose of this e-mail?18·

· · ·· A.· ·As we had been pulling together our19·

·information on stream flows, storage, et cetera, I was20·

·going to ask Sue to put them in some sort of format21·

·that was understandable for a presentation type setup.22·

·And so I was asking her to start that.23·

· · ·· Q.· ·For your presentation at the iBAG meeting?24·




Page 5209

· · ·· Q.· ·Okay.··What did you mean by the use of the·1·

·word "strategy" in this e-mail?·2·

· · ·· A.· ·Well, I wanted to be careful.··Because we and·3·

·Montana were talking about some high-level, important,·4·

·sometimes controversial things.··Interpretation of the·5·

·Compact.··We had a call in front of us.··And I did not·6·

·want to prepare a presentation that got into the same·7·

·level of detail that I knew Jack and I or the staffs·8·

·were getting into in the meetings because we didn't·9·

·have a answer.10·

· · · · · · Yet I felt important to talk objectively to11·

·the public about why this thing sort of came to be.··We12·

·had the call, what does the Compact talk about?··And13·

·then put some data together to sort of physically14·

·describe this situation without getting into the more15·

·disagreeable parts that we had at that point in time.16·

·I didn't feel that appropriate for the public part of17·

·this presentation.18·

· · · · · · So strategy was, in my recollection here,19·

·we've got to prepare something that describes what's20·

·going on.··But it's not going to be like a negotiating21·

·meeting.··So keep that in mind.22·

· · ·· Q.· ·Sure.··I'm going to show you Exhibit W98.··Do23·


· · ·· A.· ·I do.25·



Page 5210

· · ·· Q.· ·What is it?·1·

· · ·· A.· ·It's an e-mail from me to Jack dated·2·

·June 29th, 2004.·3·


· · · · · · SPECIAL MASTER:··Any objection?·5·


· · · · · · SPECIAL MASTER:··Okay.··Thank you.·7·

· · · · · · Exhibit W98 is admitted.·8·


·BY MR. BROWN:10·


· · ·· A.· ·I was sharing with Jack, prior to the12·

·June 30th conference call, some of the data we had13·

·pulled together in our work up to that point.··And14·

·wanted him to have that in advance of the meeting so15·

·that he would at least have a day to look it over and16·

·develop questions.17·

· · ·· Q.· ·Okay.··Going to show you Exhibit W322.··And18·

·do you recognize this document?19·

· · ·· A.· ·I do.20·

· · ·· Q.· ·What is it?21·

· · ·· A.· ·It is another briefing for Governor22·

·Freudenthal just prior to the June 30th meeting and23·

·after the June 10th meeting.24·




Page 5211

· · · · · · SPECIAL MASTER:··Any objection?·1·

· · · · · · MR. DRAPER:··Was it testified to that he·2·

·created this document?·3·

· · · · · · MR. BROWN:··I don't believe so.··I could ask.·4·

· · · · · · SPECIAL MASTER:··If you could ask just a·5·

·little bit more about the actual derivation of the·6·

·document.·7·

· · · · · · MR. BROWN:··Sure.·8·


· · ·· Q.· ·Mr. Tyrrell, do you know if this document was10·

·created by you or under your direction?11·

· · ·· A.· ·It was.12·

· · ·· Q.· ·Do you know if it was created by you alone or13·

·somebody that worked on your staff?14·

· · ·· A.· ·It was probably a combination.··But I'm15·

·believing at this time I was likely a main author of16·

·it.17·

· · · · · · MR. BROWN:··Okay.··I'd like to reoffer18·

·Exhibit W322.19·

· · · · · · MR. DRAPER:··No objection.20·




·BY MR. BROWN:24·

· · ·· Q.· ·And so did you meet with the governor prior25·



Page 5212

·to the June 30th, 2004, meeting?·1·

· · ·· A.· ·I believe I did.··I know that this briefing·2·

·document was prepared.··Whether I gave it to him or·3·

·briefed him in person, my head, I can't remember.·4·

· · ·· Q.· ·And just generally describe what was laid out·5·

·in this briefing document.·6·

· · ·· A.· ·Well, once again, when you're briefing a·7·

·governor, you want him to know sort of the whole ball·8·

·of wax.··So I was trying to explain where I thought the·9·

·situation was or the issue was related to the Compact,10·

·perhaps factually and legally.··So I'm sure that I11·

·counseled with my AG staff on this.··But what I think12·

·the governor needs to know is the big picture, and13·

·certainly if there's risk to his state or the State's14·

·position.··And where we are at in something that is15·

·sovereign to sovereign.··It covers a number of those16·

·types of topics.17·

· · ·· Q.· ·Okay.··Let me show you Exhibit W99.··And do18·


· · ·· A.· ·I do.20·

· · ·· Q.· ·What is it?21·

· · ·· A.· ·It's an e-mail from Jack to a number of us on22·

·June 30th at 8:16 in the morning, transmitting an23·

·agenda for the conference call on June 30th.24·




Page 5213






· · ·· Q.· ·Let me show you Exhibit W104.··And do you·6·


· · ·· A.· ·I do.·8·

· · ·· Q.· ·What is it?·9·

· · ·· A.· ·It's an e-mail string.··The first one at the10·

·top is Mike Whitaker of my staff responding to me and11·

·Hugh and Sue Lowry regarding minutes of the meeting12·

·held that day.13·




·Mr. Draper.17·

· · · · · · W104 is admitted.18·


·BY MR. BROWN:20·

· · ·· Q.· ·Can you tell me what your understanding is21·

·with regard to the first sentence in Mr. Whitaker's22·

·e-mail back to you?23·

· · ·· A.· ·He was responding to what I had drafted as a24·

·first cut of what I thought we talked about at the25·



Page 5214

·meeting.··And I must have said something in there about·1·

·irrigation in January.··And he was, I think, telling me·2·

·back that he didn't hear it quite that way.·3·

· · ·· Q.· ·Okay.··Look at Exhibit W325.··And do you·4·


· · ·· A.· ·I do.·6·

· · ·· Q.· ·What is it?·7·

· · ·· A.· ·It's another briefing for my governor·8·

·following the June 30 call.·9·

· · ·· Q.· ·Was this prepared by you or under your10·

·direction?11·

· · ·· A.· ·I believe it was, yes.12·




· · · · · · Then Exhibit W325 is admitted.16·


·BY MR. BROWN:18·

· · ·· Q.· ·So this was the briefing that occurred after19·

·the July 30th meeting; is that right?20·


· · · · · · SPECIAL MASTER:··Excuse me, you mean the --22·

·which meeting?23·

· · · · · · THE WITNESS:··June 30.24·

· · · · · · MR. BROWN:··June 30.25·



Page 5215

· · · · · · SPECIAL MASTER:··Okay.··June 30.··You said·1·

·July 30.·2·

· · · · · · MR. BROWN:··Did I?··I apologize.·3·

· · · · · · SPECIAL MASTER:··It's okay.·4·


· · ·· Q.· ·Mr. Tyrrell, is this document related to the·6·

·meeting that happened on June 30th, 2004?·7·

· · ·· A.· ·I think it updates the governor after that·8·

·meeting and essentially still talks about the issue·9·

·between Montana and us.··We've talked about what we've10·

·offered each other in terms of information.··And just11·

·some general observations of mine about the situation12·

·at that time.··And then what we had planned in the13·

·future to stay on top of this.14·

· · ·· Q.· ·Okay.··Let me draw your attention to the15·

·first identified bullet under the title Montana's16·

·Positions as Stated During this Conference Call on the17·

·first page.··Describe what you mean by that.18·

· · ·· A.· ·Well, what I heard during that call was19·

·Montana said they are not alleging any violations under20·

·the Compact.··So I put that in my notes.21·

· · ·· Q.· ·Okay.··And let's take a look at No. 6;22·

·describe what you mean under that one.23·

· · ·· A.· ·My words there say, "Montana has a problem24·

·storing water in Tongue River Reservoir in the winter."25·



Page 5216

·I had -- let's see, "The same people who use stored·1·

·water in the summer also want to irrigate in February·2·

·to April with water that otherwise could be stored, and·3·

·there isn't enough water to do both."·4·

· · · · · · Again, I thought that I had heard that in·5·

·that conference call.··And even following e-mail from·6·

·Mike.··I must have counseled with others and left that·7·

·particular observation into this briefing document.·8·

· · ·· Q.· ·Okay.··And so there were others.··Who all was·9·

·involved in the June 30th, 2004, conference call?10·

· · ·· A.· ·It would have -- I don't know if we have a11·

·list of attendees.··But clearly it was Mike and Sue, I12·

·believe, and perhaps Hugh McFadden.··I don't know if we13·

·have a document with the list of attendees.14·

· · ·· Q.· ·I think if you look at the first paragraph on15·

·Exhibit 325 it identifies those folks.16·

· · ·· A.· ·Oh, got you.··Myself, my deputy Harry17·

·LaBonde, Sue, Mike Whitaker, and Hugh McFadden, and18·

·Britt Long from the AG's office.19·

· · ·· Q.· ·And I skipped over one that I wanted to talk20·

·about.··If you look at No. 3 under Montana's Position21·

·as Stated During the Conference Call, describe what22·

·you've indicated there in No. 3.23·

· · ·· A.· ·Bullet No. 3 says "Rich Moy of Montana24·

·admitted that their work to this point has been on a25·



Page 5217

·'hunch'" -- and I put that in quotes -- "and not on·1·

·actual fact, that water could be better managed for·2·

·their benefit."··And that he had wanted to correct the·3·

·problem if there is a problem.··And I put those in·4·

·quotes because I remembered those distinctly from the·5·

·call.·6·

· · · · · · So the importance of that to me was we had·7·

·done a lot of work and expended a lot of energy on·8·

·something that was now characterized as a hunch.··And·9·

·this also made it pretty clear to me that the most10·

·important thing we could do is educate and help Montana11·

·understand exactly the uses of water that we had, the12·

·extent of our pre-Compact rights, et cetera.··Because I13·

·had felt like if I had done a better job of educating14·

·and they were more available to see what we were doing,15·

·we wouldn't be maybe not even in this situation.16·

· · ·· Q.· ·Let's take a look at the final paragraph on17·

·page 2 of this document under Mutual Offerings.··What18·

·is it you mean by No. 1 under Mutual Offerings?19·

· · ·· A.· ·"Wyoming and Montana agreed to assign the20·

·development of a work plan to a technical committee,21·

·made up of representatives on both sides, to look into22·

·irrigation practices in both states."··Again, I think23·

·to get to the sprinkler versus flood issue and the24·

·extent of those changes.··It would involve a tour of25·



Page 5218

·our respective parts of the basins and a review of·1·

·other aerial photography or remote sensing data that·2·

·might be available.·3·

· · · · · · We had a lot of unknowns about use --·4·

·clearly, about uses of water on both sides.·5·

· · ·· Q.· ·Okay.··And in the upcoming events section on·6·

·the third page of this, did the states agree to how·7·

·things would move forward?·8·

· · ·· A.· ·I think we talked about that at the end of·9·

·our phone call.··I know that we had assigned a work10·

·plan to our technical folks and had asked them to set11·

·up a tour for each State's part the of basin, hopefully12·

·within the next month.··That we would, again, get13·

·together as principals in early August.··And then we14·

·were continuing to work on getting our governors15·

·together.16·

· · ·· Q.· ·Okay.··I'm going to show you Exhibit W109.17·

·And do you recognize this document?18·

· · ·· A.· ·I do.19·

· · ·· Q.· ·What is it?20·

· · ·· A.· ·This is an e-mail from me to Jack on21·

·July 5th of 2004.22·






Page 5219

·admitted.·1·




· · ·· A.· ·Well, much like the spreadsheet e-mail I had·5·

·sent him a little bit earlier, I was again letting him·6·

·know that I would be having those meetings in·7·

·Thermopolis and Sheridan.··These are the iBAG meetings·8·

·we talked about previously.··I wanted him to be aware·9·

·of that.··That I would be talking about some of the10·

·data that he had in hand.··And this was my time to talk11·

·to our public about it.··And I just wanted to him to12·

·know that I was doing it and that it was intended to13·

·describe the factual situation and nothing more.14·

· · ·· Q.· ·So it appears from this e-mail that you were15·

·using some of the -- same information in your16·

·presentation at the meeting that you had already17·

·provided to Montana?18·

· · ·· A.· ·I think that's correct, yes.19·

· · ·· Q.· ·Let's look at Exhibit W326.··Do you recognize20·

·that document?21·

· · ·· A.· ·I do.22·

· · ·· Q.· ·What is it?23·

· · ·· A.· ·This is a copy of the presentation that I24·

·made at those two basin advisory group meetings.25·



Page 5220




· · · · · · Then Exhibit W326 is admitted.·4·



· · ·· Q.· ·I'd just like to ask a couple of questions·7·

·with regard to this.··Mostly with regard to the charts·8·

·so that we can be sure it's clear in the record, what·9·

·they represent.··And if you'll turn to the bar chart10·

·located on page marked with a WY037567, and it's11·

·entitled Comparison of Seasonal Acre-feet - Tongue12·

·River in Wyoming and Montana - State Line.··Are you13·

·there?14·

· · ·· A.· ·I am.15·

· · ·· Q.· ·What does this chart depict?16·

· · ·· A.· ·This is a comparison of seasonal flows at17·

·the -- on the Tongue River in Wyoming and Montana.··The18·

·seasonal acre-feet at the state line was compared to19·

·seasonal acre-feet in the canyons.··So the state line20·

·is the state line gauge.··And the canyons are Big21·

·Goose, Little Goose, Tongue River, and the canyon up22·

·above.23·

· · · · · · And I may have -- I worked up that data24·

·through Mr. Whitaker and Mr. Knapp and may have25·



Page 5221

·included some corrections for other tiny tribs, and·1·

·stuff.··In any case, this was designed to present how·2·

·much water is available in acre-feet for those summer·3·

·seasons in the years listed at the state line versus·4·

·what was available coming down the major tributaries·5·

·and the Tongue River.·6·

· · ·· Q.· ·Okay.·7·

· · ·· A.· ·I would say it's a little odd in that the·8·

·time scale on it is from right to left.·9·

· · ·· Q.· ·I was just going to skip right over that10·

·without mentioning anything.11·

· · · · · · SPECIAL MASTER:··Can I also ask, what do you12·

·mean by "seasonal acre-feet"?13·

· · · · · · THE WITNESS:··The canyon gauges don't operate14·

·in the winter because of freezing.··And so the15·

·seasonals would be spring to fall.16·


·BY MR. BROWN:18·

· · ·· Q.· ·Let's turn to the next page.··And it's19·

·identified with Bates No. WY037568; do you see that20·

·one?21·

· · ·· A.· ·I do.22·

· · ·· Q.· ·What's depicted in this chart?23·

· · ·· A.· ·One of my curiosities when we were dealing24·

·with how much water was available to both states was a25·



Page 5222

·general sense -- and that's all this is -- of how much·1·

·storage do we have available to our use -- or for our·2·

·users relative to, for example, our pre-'50 acres.·3·

·Acres embodied in pre-Compact water rights.··So this is·4·

·not any kind of an attempt to assign storage out of a·5·

·project of the wrong acres or anything.··It was a just·6·

·a general water management snapshot.·7·

· · · · · · And my intent there was the numbers on the·8·

·right-hand side came from documents around -- that·9·

·would have described our pre-'50 storage amounts or10·

·end -- our acreage, our irrigated acreage in place as11·

·of 1950.··It's provided probably to the nearest12·

·acre-foot and nearest acre.··But, in general, what it's13·

·intended to show is even if you round those numbers,14·

·the amount of storage available represented by Tongue15·

·River Reservoir to the pre-Compact acres in Montana is16·

·quite a bit larger than our storage in Wyoming compared17·

·to our pre-Compact acres.18·

· · · · · · And the only intent of this is to give a feel19·

·for how much storage does either state have relative to20·

·the amount of pre-Compact acres.··It's a way to look at21·

·how much management ability of water do you even have?22·

·And that was my intent here.23·

· · ·· Q.· ·Okay.··Was this the final study that Wyoming24·

·did on the topic?25·



Page 5223

· · ·· A.· ·Pardon me?·1·

· · ·· Q.· ·Was this the final study that Wyoming did on·2·

·the topic, or did you look deeper after this?·3·

· · ·· A.· ·There was some continued analysis after this.·4·

·But this is what could be done by the time of this·5·

·presentation.··It was done fairly quickly.·6·

· · ·· Q.· ·Let's look at the next page and just briefly·7·

·describe what's depicted on the chart on page WY037569.·8·

· · ·· A.· ·This, I believe, would have been·9·

·converting -- I'd have to confirm here.··But it's the10·

·acre-feet as expressed, I believe, by the streamflows11·

·in the first chart.··If you divide that by pre-Compact12·

·acre, it's, again, another snapshot that -- in general.13·

·It's not water right specific.··But in general, how14·

·much water is available for your pre-Compact acres to15·

·each state?··Canyon flows versus state line flows.16·

· · ·· Q.· ·Okay.··Let's look at the graph on the next17·

·page.··It's got No. WY037570.··And please tell us what18·

·that chart is meant to portray.19·

· · ·· A.· ·This is simply a graph of, I think, mean20·

·monthly flows at several different gauge sites.··We21·

·have the canyon flows, which are the compilation of22·

·several others; state line gauge in several years going23·

·back from 2001, 2002, 2003, which was a little better24·

·year, and then where we were at in 2004.··Just a set of25·



Page 5224

·hydrographs basically.·1·

· · ·· Q.· ·Okay.··If the Special Master doesn't have any·2·

·more questions with regard to those graphs, we'll move·3·

·on.·4·

· · · · · · SPECIAL MASTER:··At this point, I don't.·5·

· · · · · · MR. BROWN:··Okay.·6·

· · · · · · SPECIAL MASTER:··I might later.·7·


· · ·· Q.· ·Let's take a look at Exhibit J66.··That's a·9·

·letter dated July 6, 2004, from you to Mr. Stults; is10·

·that right?11·


· · ·· Q.· ·And is this the information request that the13·

·states previously agreed to exchange?14·

· · ·· A.· ·It is.15·

· · ·· Q.· ·So what was it that you were seeking to16·

·accomplish by the information that you sought for17·

·Montana in this letter?18·

· · ·· A.· ·Well, once again, we were still in this mode19·

·of understanding how we operate.··We were still within20·

·two months of having received the call letter.··So we21·

·were finally distilling down some additional data that22·

·would help us understand if there was anything we could23·

·do under the Compact, understand the situation in each24·

·other's states, understand our water rights systems a25·



Page 5225

·little better.··And so this was part of -- this was our·1·

·request to Montana, some things of which we had already·2·

·received at the beginning there.··And we at some point·3·

·had a similar request from them.·4·

· · ·· Q.· ·And if you recall during Ms. Lowry's·5·

·testimony, I think Mr. Wechsler had asked her why there·6·

·wasn't a request pertaining to the Montana water·7·

·commissioners; do you remember that?·8·

· · ·· A.· ·I do.·9·

· · ·· Q.· ·Can you tell us if you sought information or10·

·asked Montana to describe better their water11·

·commissioners prior to this point in time during the12·

·meeting that you had?13·

· · ·· A.· ·Prior to this point, I think we understood14·

·that they had the ability to appoint water15·

·commissioners and that could be done.··I do know that16·

·bullet No. 5 on the second page talks about the17·

·measuring device statute, I believe, that Montana had18·

·following the Compact.··And so we were trying to get19·

·some feeling there for whether that had -- whether they20·

·had been put in and what had been done with that21·

·concept.22·

· · ·· Q.· ·I'm going to show you Exhibit W113.··Do you23·


· · ·· A.· ·I do.25·



Page 5226

· · ·· Q.· ·What is it?·1·

· · ·· A.· ·It's an e-mail from Jack to me dated·2·

·July 7th -- excuse me, July 9th of 2004, regarding our·3·

·continued work to set up a meeting amongst the·4·

·governors.·5·


· · · · · · THE CLERK:··It's already been admitted.·7·

· · · · · · MR. BROWN:··Oh, well then I don't need to·8·

·offer that exhibit.·9·

·BY MR. BROWN:10·

· · ·· Q.· ·Can you tell me what is meant by the terms of11·

·reference type document that's referred to in this12·

·e-mail?13·

· · ·· A.· ·It was a document that came about in some14·

·point of our earlier discussions about setting side15·

·boards on future work and terms that we could agree to,16·

·terms of reference for a -- negotiations on how we're17·

·going to operate or the future of our operation under18·

·the Compact.··And it was largely going to be put19·

·together by our legal representatives, Mr. McFadden on20·

·my side and Candace Cook, I think -- I'm sorry, West, I21·

·believe, on the Montana side.22·

· · · · · · And so that's what that describes.··I think23·

·Jack was saying that hopefully we might have that by24·

·the end of July.··It never got finished.25·



Page 5227

· · ·· Q.· ·Okay.··Let me show you Exhibit W115.··Do you·1·

·recognize this document?·2·

· · ·· A.· ·I do.·3·

· · ·· Q.· ·What is it?·4·

· · ·· A.· ·This is an e-mail from me to Mr. Boswell, who·5·

·was the governor's chief of staff, and his scheduler.·6·

· · ·· Q.· ·Is this another e-mail in relation to --·7·

· · · · · · MR. BROWN:··Excuse me.··Did I offer this one·8·

·yet?··I'd like to offer Exhibit W115.·9·



·admitted.12·


·BY MR. BROWN:14·

· · ·· Q.· ·This is just another e-mail with regard to15·

·trying to schedule a meeting between the two governors?16·

· · ·· A.· ·It is.··And what I noted in here, especially17·

·from Mr. Boswell, I was apparently at that time feeling18·

·like I wasn't able to get a response or a lot of19·

·urgency on the other side of the issue to get the20·

·Montana governor scheduled.··But I was continuing to21·

·try to do that.22·

· · · · · · I note in here frustrated me a little bit23·

·because this was so important in May, and now getting24·

·the further engagement as we went through the summer25·



Page 5228

·got to be tougher.·1·

· · ·· Q.· ·Okay.··I'm going to show you Exhibit W116.·2·

·And do you recognize that document?·3·

· · ·· A.· ·I do.·4·

· · ·· Q.· ·What is it?·5·

· · ·· A.· ·It's another e-mail from me to my governor's·6·

·chief of staff and Mr. Masterson at that time was his·7·

·counsel.··They had asked -- or the governor asked me to·8·

·draft a meeting -- a letter to Governor Martz.··And I·9·

·had provided that draft letter and acknowledging that10·

·we're still trying to get some activity.11·

· · · · · · MR. BROWN:··I'd like to offer Exhibit W1612·

·[sic].13·

· · · · · · MR. DRAPER:··No -- that's W116?14·

· · · · · · MR. BROWN:··Yes.15·



· · · · · · Then Exhibit W116 is admitted.18·


·BY MR. BROWN:20·

· · ·· Q.· ·Do you know if that letter ever got sent?21·

· · ·· A.· ·I don't know.··I don't think it did.22·

· · ·· Q.· ·Let's look at Exhibit W118.··Do you recognize23·

·this document?24·

· · ·· A.· ·I do.25·



Page 5229

· · ·· Q.· ·What is it?·1·

· · ·· A.· ·It is an e-mail from me to my field staff in·2·

·Water Divisions II and III describing an upcoming·3·

·Compact Commission meeting and the need to, perhaps,·4·

·get a stenographer or court reporter there.·5·



· · · · · · SPECIAL MASTER:··Okay.··Then Exhibit W118 is·8·

·admitted into evidence.·9·


· · · · · · SPECIAL MASTER:··But is there a reason why11·

·you discussed hiring a local stenographer but not a12·

·court reporter?13·

· · · · · · THE WITNESS:··I misspoke, Your Honor.··I14·

·think we were trying to keep costs down, simply.··But15·

·we were looking for an official note-taking method for16·

·accuracy.17·

· · · · · · SPECIAL MASTER:··I just wanted to defend the18·

·honor of all court reporters.19·

·BY MR. BROWN:20·

· · ·· Q.· ·Do you have any idea why there was an21·

·interest to have a more accurate recording of the22·

·minutes?23·

· · ·· A.· ·I think we were in a mode at that point that24·

·people wanted to maintain the accuracy of any future25·



Page 5230

·meetings in terms of every word that was said.··My·1·

·recollection is the idea came out of Montana.·2·

·Although, I would say that we agreed to it.·3·

· · ·· Q.· ·Did you have some belief that the previous·4·

·meeting minutes were not complete?·5·

· · ·· A.· ·No.··I believe that up to that point we'd·6·

·been doing audio recordings and transcribing.··The USGS·7·

·secretary would do that.··But, you know, in the·8·

·interest of completeness and Montana felt it was·9·

·important, I was asking my guys, who could we use?10·

· · ·· Q.· ·Okay.··Let's look at Exhibit J67.··And that's11·

·actually Montana's information request back to the12·

·State of Wyoming dated July 19th, 2004; right?13·

· · ·· A.· ·It is.14·

· · ·· Q.· ·What did do you in response to Montana's15·

·request for information?16·

· · ·· A.· ·I would have shared this request with my17·

·staff.··To the extent some of these were pretty easy to18·

·pull together, I would imagine we started responding19·

·with some of them.··I don't know that everything in20·

·here was fully responded to.··Some of it would have21·

·taken time.22·

· · ·· Q.· ·Let's take a look at Exhibit W125.··And do23·


· · ·· A.· ·I do.25·



Page 5231

· · ·· Q.· ·What is it?·1·

· · ·· A.· ·It's an e-mail from me to Sue Lowry, Hugh·2·

·McFadden and the AG's Office, and Mike Whitaker on the·3·

·letter we just looked at.·4·



· · · · · · SPECIAL MASTER:··Exhibit W125 is admitted.·7·



· · ·· Q.· ·Look at Exhibit W124.··And do you recognize10·


· · ·· A.· ·I do.12·

· · ·· Q.· ·What is it?13·

· · ·· A.· ·This is an e-mail from Jack to me regarding14·

·my phone call to him.··The date is July 26th of '04.15·




·admitted.19·


·BY MR. BROWN:21·


· · ·· A.· ·It looks to me like we were having trouble23·

·feeling as though enough had been accomplished by24·

·August 2nd to maintain that date as a date of the25·



Page 5232

·commissioners -- or meeting of the principals.··And·1·

·Jack was certainly informing me here that his work has·2·

·been intense.··He'd got an international issue and a·3·

·bankruptcy that he was dealing with that was taking his·4·

·time.·5·

· · ·· Q.· ·Okay.··Let's look at Exhibit W123.··And do·6·

·you recognize this document.·7·

· · ·· A.· ·I do.·8·

· · ·· Q.· ·What is it?·9·

· · ·· A.· ·My informing my staff by e-mail on July 26 of10·

·'04 about our decision to postpone the August 2nd11·

·meeting because not enough work had been done.12·

· · ·· Q.· ·Okay.13·


· · · · · · SPECIAL MASTER:··Any objection?15·

· · · · · · MR. DRAPER:··No, Your Honor.16·

· · · · · · SPECIAL MASTER:··Thank you.17·

· · · · · · So Exhibit W123 is admitted.18·


·BY MR. BROWN:20·

· · ·· Q.· ·Can you explain a little more fully about21·

·your comment in this e-mail that "we hadn't done22·

·squat"?23·

· · ·· A.· ·I always love seeing words like that in a24·

·trial exhibit.··I think what we we're talking about25·



Page 5233

·there is certainly we had been quite busy.··Jack·1·

·admitted to having been quite busy with other things·2·

·unrelated to the Tongue River or the Yellowstone·3·

·Compact.·4·

· · · · · · I think if you look back at our information·5·

·requests of each other, they were detailed, they were·6·

·lengthy, they were quite -- well, some of the things in·7·

·those lists were going to be able to pulled together·8·

·and essentially mailed to each other.··Some of them·9·

·also required quite a bit of work.··And that work, in10·

·the matter of a month, just simply wasn't getting done11·

·because of our schedules and our staff schedules.12·

· · ·· Q.· ·Okay.13·

· · ·· A.· ·Our day jobs, as it were.14·

· · ·· Q.· ·Show you Exhibit W128.··Do you recognize that15·

·document?16·

· · ·· A.· ·I do.17·

· · ·· Q.· ·What is it?18·

· · ·· A.· ·It's an e-mail from Jack to his staff19·

·primarily, copying me and others on a discussion that20·

·we had about the -- doesn't specifically talk about the21·

·August 2nd meeting in here.··But it talks about where22·

·the issue should go at this point.23·

· · · · · · We had both begun to feel, I think, partly24·

·through things like the terms of reference and the25·



Page 5234

·lengthy information requests, that we were getting·1·

·bogged down.··And I think he puts it articulately in·2·

·here where he says it was beginning to feel like·3·

·discovery in litigation.··And we needed to take a step·4·

·back and rethink what was the most critical things for·5·

·us to be doing.··And that is the reason for the request·6·

·in the next to last paragraph that we prioritize those·7·

·requests.·8·

· · · · · · MR. BROWN:··Is Exhibit 128 admitted?·9·

· · · · · · SPECIAL MASTER:··Yes.10·

· · · · · · MR. BROWN:··And I'm missing another exhibit11·

·that is kind of a canon to that one.··So maybe it is a12·

·good time to break.13·

· · · · · · SPECIAL MASTER:··Okay.··So you want to break14·

·now for lunch?··And I'm curious for Mr. Draper's15·

·preparation, do you have any sense as to how much more?16·

· · · · · · MR. BROWN:··I'm guessing 45 minutes.17·

· · · · · · SPECIAL MASTER:··Okay.··Sounds good.··So why18·

·don't we then take a break right now.··And then we can19·

·come back at little after 1:00.20·

· · · · · · · · · · · (Recess taken 12:03 to 1:0921·

· · · · · · · · · · · p.m., November 26, 2013)22·

· · · · · · SPECIAL MASTER:··Okay.··Let's go back on the23·

·record.24·

· · · · · · So, Mr. Brown, you had just finished with25·



Page 5235

·Exhibit W128.·1·

· · · · · · MR. BROWN:··Yes, Your Honor.··And thank you.·2·

·I will back up one exhibit to the one that I had·3·

·misplaced.··And we're actually going to take a look at·4·

·M172, which is identical to W127, if you have that in·5·

·your stack.·6·

· · · · · · SPECIAL MASTER:··I'm totally confused now.·7·

·Which am I supposed to have in my stack, the M172 or·8·

·W127?·9·

· · · · · · MR. BROWN:··The Wyoming exhibit.10·

· · · · · · SPECIAL MASTER:··Okay.11·

· · · · · · MR. BROWN:··I apologize, Your Honor, for the12·

·confusion.13·

· · · · · · SPECIAL MASTER:··Okay.··So we should refer to14·

·it as one exhibit.··Which would you prefer to use.15·

· · · · · · MR. BROWN:··The Montana exhibit.16·

· · · · · · SPECIAL MASTER:··So M172.17·

·BY MR. BROWN:18·

· · ·· Q.· ·M172, and I believe this document is already19·

·admitted.··And, Mr. Tyrrell, this is an e-mail form you20·

·to different folks on your staff; is that right?21·

· · ·· A.· ·It is.22·

· · ·· Q.· ·Describe what the purpose of this e-mail was.23·

· · ·· A.· ·This was sent July 29th of '04.··It is24·

·essentially the mirror version of the notice that Jack25·



Page 5236

·sent to his staff that was in W128 that we just looked·1·

·at from the -- this one was from the Wyoming side.··I·2·

·think it's important here to know that we both copied·3·

·each other so we knew what we were telling our own·4·

·staffs and not to get to crosswise on the message.·5·

· · · · · · One of the things that I think was important·6·

·about my note -- at least as I look back on it -- was·7·

·the very last sentence of the last paragraph, "Jack and·8·

·I both agree that if educating the parties on how we·9·

·both manage water solves the problem, that would be a10·

·very good result."11·

· · ·· Q.· ·And so is this something that you were trying12·

·to work towards at that time?13·

· · ·· A.· ·That's what I had been working toward in one14·

·vain or another, probably since May 18th.15·

· · ·· Q.· ·Okay.16·

· · ·· A.· ·Understanding what's going on here.17·

· · ·· Q.· ·I direct your attention to the paragraph18·

·immediately above that.··So it's next to last19·

·paragraph.··And that last sentence says, "I want to20·

·ferret out exactly where the rub is."··What did you21·

·mean by that?22·

· · ·· A.· ·The request for information that flew between23·

·both parties were prodigious.··Long, lengthy, had a lot24·

·of different tentacles to them, and they were going to25·



Page 5237

·be difficult to all pull together.··And what struck me·1·

·was we were probably getting way into the weeds.··And·2·

·we needed prioritize what we were going to do because·3·

·my concern was we were missing the point.·4·

· · · · · · We didn't know exactly the crux questions to·5·

·answer.··And my comment here where it says go over the·6·

·States' respective letters of request and prioritize·7·

·what can be developed.··This may include holding the·8·

·tour we agreed to do earlier.··"I want to ferret out·9·

·exactly where the rub is so we don't need to do things10·

·that don't directly go to solving any misconceptions11·

·between the parties."··We were having trouble enough12·

·finding time to devote to this.13·

· · · · · · Jack certainly had his other pressures.··I14·

·had three other divisions to be working in as well.··So15·

·why waste time on things that didn't matter.··That was16·

·what I was trying to get to.17·

· · ·· Q.· ·Okay.··Let's take a look at Exhibit W135.18·

·And do you recognize that document?19·

· · ·· A.· ·I do.20·

· · ·· Q.· ·What is it?21·

· · ·· A.· ·This is my more traditional update for the22·

·governor dated August 25th of 2004.23·

· · ·· Q.· ·And is that your signature on the first page?24·

· · ·· A.· ·It is.25·



Page 5238

· · ·· Q.· ·I'd like to offer Exhibit W135.·1·



·Mr. Draper.·4·




· · ·· Q.· ·Just generally describe the nature of that·8·

·document.·9·

· · ·· A.· ·Every so often I would provide a -- an update10·

·of what I've been doing, things of importance to the11·

·governor.··I didn't always meet on -- with him on12·

·everything that was in these.··But it was sort of,13·

·here's what I've been doing lately.··And to the extent14·

·that I had high-level things that I thought he may have15·

·heard about or read about or had questions about, and16·

·I'd let him know.17·

· · · · · · And there was generally should be in here, if18·

·it isn't understood, that anything on here that you19·

·wish to be briefed on further, I'm happy to do that.20·

·So this was kind of an activity report.21·

· · ·· Q.· ·So prior to Montana's call in May of 2004, is22·

·it fair to say that this is the only way that you23·

·communicated Yellowstone River Compact issues to the24·

·governor?25·



Page 5239

· · ·· A.· ·Generally speaking, that's correct.··This·1·

·would have been the type of venue that I provide normal·2·

·updates to unless some other issue -- if the issues·3·

·really grew, whether it was coalbed methane or this or·4·

·something in the Colorado, then I might brief him·5·

·independently on just that topic.··This was more the·6·

·weekly activity report or monthly.·7·

· · ·· Q.· ·Let's take a look at the second page, and·8·

·it's No. 4 on the second page.··And just describe for·9·

·us a little more fully about what's described in that10·

·No. 4.11·

· · ·· A.· ·On July 14th, basically all it says is I did12·

·have a discussion with Jack.··We had really -- well, we13·

·had tried to schedule a tour on June 30th, and that14·

·hasn't happened.··In my feeling at that time was that15·

·Montana's time was being usurped by other things.16·

· · · · · · And then I indicated that that was my first17·

·indication that their earlier allegations were no18·

·longer urgent.··I thought they were very willing to19·

·come early on.··And we just never could get it20·

·scheduled.21·

· · ·· Q.· ·I think that's all the documents I have for22·

·2004.··Do you think it's fair to say, with the23·

·documents that we've talked about here today with you24·

·and the documents that Ms. Lowry talked about yesterday25·



Page 5240

·in the year 2004, does that paint a fairly accurate·1·

·picture with regard to what at least what Wyoming's·2·

·activities were with regard to the call in 2004?·3·

· · ·· A.· ·It does.··There was a high level of activity.·4·

· · ·· Q.· ·Describe that level of activity in your·5·

·involvement with the Yellowstone River Compact as·6·

·compared to previous years.·7·

· · ·· A.· ·We didn't generate this near amount of paper·8·

·in the previous years.··We had a lot going on as a·9·

·result of that May 18th letter.··Significantly in10·

·excess of other years.11·

· · ·· Q.· ·All right.··Let's look at Exhibit M161.··And12·

·I believe this document is admitted.··But generally13·

·describe for us what this is.14·


· · · · · · THE WITNESS:··This is an e-mail from Jack,16·

·primarily to Bob Davis with the USGS, copying me and17·

·Bill Horak and others, transmitting Montana's edits to18·

·the draft minutes of the December '04 meeting.19·

·BY MR. BROWN:20·

· · ·· Q.· ·Was it consistent with your understanding21·

·that the states could submit their suggested edits to22·

·the USGS for inclusion in the minutes?23·

· · ·· A.· ·It is.24·

· · ·· Q.· ·Would Wyoming have had a chance to respond to25·



Page 5241

·these edits suggested by Montana?·1·

· · ·· A.· ·We would have.·2·

· · ·· Q.· ·Let's look at Exhibit W140.··Do you recognize·3·

·this document?·4·

· · ·· A.· ·I do.·5·

· · ·· Q.· ·What is it?·6·

· · ·· A.· ·It is an e-mail from Bill Horak who was·7·

·chairman of the Commission at that time, USGS employee,·8·

·dated April 14th of 2005.·9·

· · ·· Q.· ·Is that your handwriting on this document?10·

· · ·· A.· ·It is.11·



· · · · · · SPECIAL MASTER:··Exhibit M140 is admitted.14·

· · · · · · MR. BROWN:··W140, Your Honor.15·

· · · · · · SPECIAL MASTER:··Sorry, W140.··Long week,16·

·even though it's only two days.17·


·BY MR. BROWN:19·

· · ·· Q.· ·Could you just describe the purpose of this20·

·e-mail?21·

· · ·· A.· ·This was a request from Bill Horak to both22·

·Jack and I, to each of us to provide him a time -- I23·

·think he suggested maybe an hour -- to educate him on24·

·how the two of us each saw the Compact inter murals25·



Page 5242

·that we had been having and what our positions were and·1·

·why.··And I think that was in an effort for him to know·2·

·more about the differences, such as they were.·3·

· · ·· Q.· ·Okay.··And do you recall having the·4·

·opportunity to speak with Mr. Horak independently?·5·

· · ·· A.· ·I did.·6·

· · ·· Q.· ·Go ahead.·7·

· · ·· A.· ·I thought it was a fairly good, thorough·8·

·conversation.··I explained my thinking on the topics,·9·

·and I'm sure Jack did as well, from his point of view.10·

·So yes, I did have that talk.11·

· · · · · · SPECIAL MASTER:··We can go off the record.12·

· · · · · · · · · · · (Discussion held off the13·

· · · · · · · · · · · record.)14·

·BY MR. BROWN:15·

· · ·· Q.· ·Mr. Tyrrell, I'm going to show you what's16·

·been marked as Exhibit W340.··And this exhibit has been17·

·admitted.··But can you tell us generally what that is?18·

· · ·· A.· ·This is a summary of the Technical Committee19·

·discussions that were held in Sheridan on April 25th,20·

·2005.21·

· · ·· Q.· ·And were you and Mr. Stults both at that22·

·meeting?23·

· · ·· A.· ·I believe we were.··I don't -- yes.24·

· · ·· Q.· ·Is this the first time, to your recollection,25·



Page 5243

·that both the commissioners had decided to attend the·1·

·Technical Committee meeting in the spring?·2·

· · ·· A.· ·Likely was, yes.·3·

· · ·· Q.· ·I want to look at the first paragraph under·4·

·the "other items" section which is the third page of·5·

·Exhibit W340.··Do you see that, No. 8, other items?·6·

· · ·· A.· ·I do.·7·

· · ·· Q.· ·And what's your recollection with regard to·8·

·what Mr. Stults' comment pertained to in that·9·

·paragraph?10·

· · ·· A.· ·Well, I can't speak for Jack's intent.··But11·

·the words here say he commented that we have not gone12·

·the extra step of attaching the water supply13·

·information relating that to what was the actual demand14·

·and use information, getting it on certain water15·

·righted acres, and figuring out who might be regulated16·

·when either of us got low.17·

· · · · · · He acknowledged we'd been seeing record low18·

·flows.··And he had a question whether the water was19·

·being distributed equitably.20·

· · ·· Q.· ·Okay.··So was it your understanding that time21·

·as well we didn't have enough information to develop22·

·how that would be worked out?23·

· · ·· A.· ·We were still gathering information at this24·

·point, that's right.25·



Page 5244

· · ·· Q.· ·Okay.··Show you Exhibit W196.··Do you·1·


· · ·· A.· ·I do.·3·

· · ·· Q.· ·What is it?·4·

· · ·· A.· ·This is a list of bullet points that we were,·5·

·as I recall, working on for the governor in the event·6·

·that a call would be arranged or could be arranged with·7·

·new Governor Schweitzer in Montana.·8·

· · ·· Q.· ·Was this document created under your·9·

·direction?10·

· · ·· A.· ·I believe it was.11·




·Mr. Draper.15·

· · · · · · W196 is admitted.16·


·BY MR. BROWN:18·

· · ·· Q.· ·And I think you've said already a little bit,19·

·but what was the purpose of this document?20·

· · ·· A.· ·Well, Montana had a new governor at this21·

·point.··Governor Martz was no longer in office.··And22·

·Governor Schweitzer, I believe, was elected late 2004.23·

·So to the extent that my governor needed to communicate24·

·with Governor Schweitzer from a state-to-state level on25·



Page 5245

·this particular issue, I wanted him to have a sort of·1·

·updated statement of the situation.·2·

· · ·· Q.· ·Okay.··Take a look at the second dark bullet·3·

·point there that starts "we continue to analyze the·4·

·Compact"; do you see that?·5·

· · ·· A.· ·I do.·6·

· · ·· Q.· ·What did you mean by that statement?·7·

· · ·· A.· ·Well, I'll read it, "We continue to analyze·8·

·the Compact, but are convinced that any type of call·9·

·from Montana for water under the Compact is without10·

·merit."··What I was referring to there was we'd had a11·

·call the prior year.··It sought to divide water amongst12·

·pre-Compact rights.··I hadn't seen the ability in the13·

·Compact to respond to a call in any fashion,14·

·particularly only among pre-'50 rights.15·

· · · · · · And that was just a point I was reiterating16·

·with the governor.··It probably wasn't the first time17·

·I'd told him that.18·

· · ·· Q.· ·Let's take a look at Exhibit W144.··Do you19·


· · ·· A.· ·I do.21·

· · ·· Q.· ·What is it?22·

· · ·· A.· ·It is an e-mail from me to Sue preparing for23·

·a briefing with the governor.··It was dated24·

·July 28th of '05.25·



Page 5246

· · ·· Q.· ·Do you recognize the attachment to that·1·

·e-mail?·2·

· · ·· A.· ·I do.·3·

· · ·· Q.· ·Do you believe that's the reference that's in·4·

·the attachments to the e-mail?·5·

· · ·· A.· ·I believe it was.·6·


· · · · · · MR. DRAPER:··No objection.·8·

· · · · · · SPECIAL MASTER:··Okay.··Exhibit W144 is·9·

·admitted.10·


·BY MR. BROWN:12·

· · ·· Q.· ·And I want to take a look at the attachment13·

·to the e-mail entitled Briefing with Governor14·

·Freudenthal, July 28th, 2005.··And I want to look at15·

·Item No. 5 there where it says, "I have broached the16·

·possibility of engaging Montana in a study of the17·

·availability of post-Compact water."18·

· · · · · · Can you you describe more fully what that was19·

·about?20·

· · ·· A.· ·Because of the work that we'd done to that21·

·point and probably with the list of items we'd22·

·collected from each other, was going to take some work,23·

·that we attempted to have staff prioritize.··There was24·

·a lot of work to be done related to post-Compact water25·



Page 5247

·uses in both states.··Perhaps the V, B and C work that·1·

·I've probably talked about ad nauseam.··But I was·2·

·informing the governor that I'd probably be seeking a·3·

·budget item to do that.·4·

· · · · · · I was still hopeful that if we could evaluate·5·

·and come to an agreement on how to manage under V, B·6·

·and C, and it's going to take some study to do that,·7·

·that we could avert any further action like the call·8·

·letter we got in '04 in Montana.··But it was going to·9·

·take money and time.10·

· · ·· Q.· ·Okay.··Let me show you Exhibit W145.··And do11·


· · ·· A.· ·I do.13·

· · ·· Q.· ·What is it?14·

· · ·· A.· ·This is an e-mail from me to Jack copying15·

·some of my staff, and dated September 9th of '05.16·

· · ·· Q.· ·Do you recognize the attachment to the17·

·e-mail?18·

· · ·· A.· ·I do.19·

· · ·· Q.· ·And is that attachment referenced in the20·

·e-mail itself?21·

· · ·· A.· ·It is.22·


· · · · · · THE CLERK:··It's been admitted.24·

· · · · · · MR. BROWN:··W145 has been admitted.··Okay.25·



Page 5248


· · ·· Q.· ·Tell me what the purpose of this e-mail was.·2·

· · ·· A.· ·Well, first of all, I want to call attention·3·

·under the CC list on the front page.··There's a name·4·

·you may not have seen yet, Ryan Lance, he was at that·5·

·time our governor's deputy chief of staff.·6·

· · · · · · So my governor's office knew I was·7·

·transmitting this budget information to Montana.··And·8·

·the attachment is the budget narrative that was in my·9·

·2006 budget request that described, in some detail, but10·

·on one page, basically how we go to where we are11·

·beginning with the 2004 call letter.··And then what I12·

·had hoped we could do with it.13·

· · ·· Q.· ·What was it you hoped to do with the funding?14·

· · ·· A.· ·Well, it's all here.··We were going to split15·

·our 200,000, which is what I was asking for, into two16·

·portions.··One, to cooperate with Montana, assuming17·

·they could match that.··So that the two of us could18·

·develop a scope of work that we both agreed upon and19·

·attack whatever questions we continued to have on water20·

·use and availability in both states.··To get rid of --21·

·to attack the educational problem I saw earlier.22·

· · · · · · The other hundred thousand I was going to23·

·keep for Wyoming's use to the extent we needed to, on24·

·our own desire, to go out and gather some additional25·



Page 5249

·data or build a gauge -- I don't know if we were going·1·

·to build anything or not.··But to gather additional·2·

·information for our use.·3·

· · · · · · But there were certainly the intent that a·4·

·thousand -- a hundred thousand of this was to sit down·5·

·with Montana, come to an agreement on the scope, and do·6·

·the study.··And the reason being, when we got done with·7·

·that we were both invested in it, and wouldn't be·8·

·compelled to take shots at the results.·9·

· · ·· Q.· ·Sure.··What -- was this funding request10·

·granted by the legislature?11·

· · ·· A.· ·It was.12·

· · ·· Q.· ·Let's take a look at Exhibit W146.13·

· · · · · · THE CLERK:··It's admitted.14·

·BY MR. BROWN:15·

· · ·· Q.· ·And I believe that this exhibit has already16·

·been admitted.··But can you just generally describe17·

·your understanding of what Mr. Stults was asking for18·

·here?19·

· · ·· A.· ·We had -- I do.··We had a presentation at the20·

·'05 Commission meeting from John Wagner's -- from a21·

·Mr. John Wagner, who was with our DEQ Water Quality22·

·Division regarding coalbed methane development in23·

·Wyoming and the DEQ side of things, discharges, that24·

·sort of topic.25·



Page 5250

· · · · · · And Jack had some questions on that·1·

·presentation.··And this memo was raising those·2·

·questions and seeking some answers.·3·

· · ·· Q.· ·Okay.··I'm going to show you Exhibit W147.·4·

·I'm not sure if that's been admitted.·5·

· · · · · · THE CLERK:··It's been admitted.·6·


· · ·· Q.· ·And do you recognize Exhibit 147?·8·

· · ·· A.· ·I do.·9·

· · ·· Q.· ·It's W147.··And generally, what is it?10·

· · ·· A.· ·This is our response back to Jack prepared11·

·from Sue Lowry on April 24th of '06 back to Jack and12·

·others with Mr. Wagner's responses to those questions.13·

· · ·· Q.· ·And I didn't have any other questions about14·

·those.··I guess I thought that it hadn't been admitted.15·

· · · · · · Let's take a look at Exhibit W169.··Do you16·

·recognize this document?17·

· · ·· A.· ·I do.18·

· · ·· Q.· ·What is it?19·

· · ·· A.· ·It is an e-mail string, the last one of which20·

·is between -- from me to Sue dated May 24th of '06.21·


· · · · · · SPECIAL MASTER:··Any objection.23·





Page 5251

·Mr. Draper.·1·





· · ·· A.· ·We were preparing to set up a meeting.··It·6·

·looks like it was June 2nd of '06.··And originally, I·7·

·think the topic was going to be the study Wyoming was·8·

·doing on a pipeline that might take coalbed water from·9·

·the coal fields around Gillette to the North Platte.10·

·As that meeting got closer and closer, Jack was adding11·

·additional topics to it.··And I was trying to keep it12·

·focused.··So I think that's the genesis of my comment13·

·Jack and I are clashing swords.··I was trying to keep14·

·the agenda confined.··And he wanted to add to it.15·

· · · · · · We ended up setting up the agenda and holding16·

·the meeting, I think, with the larger agenda.··That17·

·certainly was larger than just that one topic.18·

· · ·· Q.· ·I want to draw your attention to your -- the19·

·e-mail on the middle of the page on the first page.··It20·

·was sent at 9:27 p.m.21·

· · · · · · Do you see that?22·

· · ·· A.· ·I do.23·

· · ·· Q.· ·And the next to last paragraph in that24·

·e-mail, it says -- this was from you to Mr. Stults; is25·



Page 5252

·that right?·1·

· · ·· A.· ·Correct.·2·

· · ·· Q.· ·It says, "Also, a deeper explanation of how a·3·

·tribal reserved water right (or compact) date was·4·

·assigned to the recent enlargement of the Tongue River·5·

·Reservoir, since that water had not seen storage use·6·

·prior to 1950."·7·

· · · · · · What is it you were trying to get at there?·8·

· · ·· A.· ·We had met in April for the spring Commission·9·

·meeting.··And apparently, that was the first time we'd10·

·heard about a pre-Compact priority date being11·

·established for that storage, at least certainly it was12·

·fresh in our minds at that point.··So I was asking him13·

·how they -- and why they had planned to do that.14·

· · · · · · So the question was let's have an additional15·

·discussion about the tribal right and its priority16·

·date.17·

· · ·· Q.· ·Okay.··Let me show you Exhibit W363.··Do you18·


· · ·· A.· ·I do.20·

· · ·· Q.· ·What is it?21·

· · ·· A.· ·This is a summary of the meeting that was22·

·held on June 2nd, 2006 in Sheridan.23·

· · ·· Q.· ·This is in reference to the meeting that was24·

·discussed in the previous e-mail?25·



Page 5253

· · ·· A.· ·It is.·1·

· · ·· Q.· ·Is this prepared by you or under your·2·

·direction?·3·

· · ·· A.· ·I believe it was.··I didn't see Sue's name on·4·

·it.··But it would have been -- yes, prepared by·5·

·somebody in the office there.·6·

· · ·· Q.· ·Okay.·7·




·admitted.11·


·BY MR. BROWN:13·

· · ·· Q.· ·So this is a new topic with regard to the14·

·North Platte pipeline.··Can you please generally15·

·describe what that was about?16·

· · ·· A.· ·The legislature and the governor of Wyoming,17·

·because we had a lot of water generated as a result of18·

·coalbed methane development and the discussions about19·

·what to do with that water, one of the ideas that20·

·sprang up around this period of time was, well, we've21·

·got the North Platte.··It's under a decree.··It's22·

·always short.··And to the extent we couldn't use some23·

·of this water around Gillette, is there any feasibility24·

·in piping it, putting it in the Platte, using you it25·



Page 5254

·for, perhaps, replacement water under that decree or·1·

·for municipal supply.··And being groundwater, deeper·2·

·groundwater from the coal, that, at least initially,·3·

·thought -- it was thought that it would be worth·4·

·studying the feasibility of that.·5·

· · · · · · It wasn't surface water under the Compact,·6·

·per se.··So Wyoming decided to appropriate some money·7·

·not to build anything like this but to study it.··And·8·

·the concept had some flaws from the beginning.··But·9·

·they had to look at it.10·

· · · · · · And one of the biggest concerns of a project11·

·of this type is with the play moving so much, the upper12·

·end of the pipeline would be moving all over the place.13·

·And then it ultimately was determined and no pipeline14·

·of this nature was ever built.15·

· · ·· Q.· ·Okay.··So what was the reason of the meeting16·

·between Montana and Wyoming with regard to it?17·

· · ·· A.· ·Montana had heard about the proposal.··And,18·

·of course, it got their attention.··They wanted -- it19·

·was water coming from geographically within the Powder20·

·River drainage and the greater Yellowstone Basin moving21·

·to the Platte.··And they, probably fair to say, that22·

·they weren't enamored by that idea.23·

· · · · · · There was a question as to whether we needed24·

·their approval to move groundwater of this nature out25·



Page 5255

·of the basin.··We certainly do in -- under the Compact·1·

·have to get the consent of the commissioners to move·2·

·surface water out of basins.··So that was the question,·3·

·would this qualify under the Compact for that kind of a·4·

·decision?·5·

· · ·· Q.· ·Okay.··I'm going to draw your attention to·6·

·the third page of Exhibit W363.··And I see under what·7·

·appear to be Items No. 5, 6, and 7, topics that are·8·

·unrelated to the pipeline; is that fair?·9·


· · ·· Q.· ·And are these some of the topics that either11·

·you or Mr. Stults had added to the pipeline topic12·

·agenda?13·

· · ·· A.· ·These were items that were added to the14·

·agenda.15·

· · ·· Q.· ·And I'll draw your attention to the first16·

·paragraph under Section 5.··And about the middle of17·

·that paragraph, indicates, "Mike has sent out18·

·registered letters ordering in measuring devices on the19·

·main stem of the Tongue and has given the water users20·

·until next year to get them installed."21·

· · · · · · What is your understanding of why -- is that22·

·Mike Whitaker referenced there?23·

· · ·· A.· ·That is Mike Whitaker.24·

· · ·· Q.· ·What's your understanding of why Mr. Whitaker25·



Page 5256

·was ordering those measuring devices?·1·

· · ·· A.· ·I believe that Mike could see the writing on·2·

·the wall.··After 2004, down the road, we had to have a·3·

·better understanding of our own diversions and use on·4·

·the Tongue River, the main stem.··We didn't have those·5·

·measuring devices in up to that point.··I supported him·6·

·doing it.··He sent letters out to the irrigators that·7·

·had these ditches and other pumps or whatever they·8·

·were.··And as is -- our superintendents, we have the·9·

·authority to order in measuring devices under statute.10·

·And so he went for it.11·

· · ·· Q.· ·Okay.··Look under the second paragraph under12·

·Section 5 there, it talks about Tongue River Reservoir13·

·enlargement.··What was it that Montana related at this14·

·meeting with regard to the Tongue River Reservoir15·

·right?16·

· · ·· A.· ·Well, it appeared to us that the priority17·

·that was going to be assigned to the enlargement was18·

·still somewhat up in the air.··And what we had heard19·

·now is that the record here indicates that Mr. Whiteman20·

·stated that the -- and I believe he was with the21·

·Northern Cheyenne of -- yes, Northern Cheyenne Tribe --22·

·that they were developing a position paper that would23·

·be an 1881 right.··So we heard that and made a note of24·

·it.25·



Page 5257

· · ·· Q.· ·Okay.·1·

· · ·· A.· ·I think later in that paragraph I note that·2·

·that was the first time we'd heard that date being·3·

·talked about for the enlargement.·4·

· · ·· Q.· ·Okay.··Look under the -- under Section 7·5·

·under "other items."··And it says, "Mr. Tyrrell raised·6·

·Wyoming's concern with the language in Montana DNRC·7·

·goals for next year which states the DNRC is preparing·8·

·for litigation with Wyoming."·9·

· · · · · · Describe a little more fully what it is that10·

·Wyoming's concern was there, and what it is Wyoming had11·

·seen.12·

· · ·· A.· ·Montana had posted their DNRC goals on their13·

·website.··And somebody, either my -- might have been14·

·David Williams had located that.··We were still doing15·

·research after '04 and trying to figure out where we16·

·were at.··And it basically said that DNRC was preparing17·

·for litigation.··And so I brought that up.··And I said,18·

·Jack, if that's the direction you're going to go, I19·

·understand.··But that puts me in a very awkward20·

·position having just requested money to cooperate with21·

·the state of Montana.22·

· · · · · · This was June of '06.··So I already had the23·

·money in my budget.··And now I was beginning to feel24·

·somewhat nervous about the going forward with that.25·



Page 5258

·Certainly I'd be in a box if I was helping fund a·1·

·cooperative study with Montana only to fund their·2·

·discovery to sue me.··So I told him that.··And I had·3·

·indicated that these meetings would either change or·4·

·cease if they continued.·5·

· · ·· Q.· ·Okay.··Let's take a look at W364.··Do you·6·


· · ·· A.· ·I do.·8·

· · ·· Q.· ·What is it?·9·

· · ·· A.· ·This is a very similar document to the one we10·

·just looked at.··But it was prepared with the idea of,11·

·again, updating the governor's office on our continued12·

·discussions with Montana.··In particular, as related to13·

·the North Platte pipeline and the other things that14·

·came up at that meeting.15·

· · ·· Q.· ·Was this document drafted by you or under16·

·your direction?17·

· · ·· A.· ·It was.18·






·BY MR. BROWN:24·

· · ·· Q.· ·Why did you feel it was necessary to brief25·



Page 5259

·the governor at this point in time?·1·

· · ·· A.· ·We still had 2004 fresh in our minds.··We'd·2·

·been working party closely with Montana.··We had just·3·

·received a -- an appropriation to cooperate with them·4·

·on the study.··They -- the governor was aware of the·5·

·North Platte Pipeline project that had been funded and·6·

·the fact that Montana had some concerns about it.··So,·7·

·again, I felt it appropriate to update him on the·8·

·meeting.·9·

· · ·· Q.· ·Okay.··Let's take a look at Exhibit J68.··And10·

·that's the July 28, 2006, call letter from Montana;11·

·right?12·

· · ·· A.· ·It is.13·

· · ·· Q.· ·Did you understand this particular call14·

·letter to be different from the call letter that15·

·Montana sent in 2004?16·

· · ·· A.· ·I'd say it was quite different.17·

· · ·· Q.· ·And how is that?18·

· · ·· A.· ·First of all -- in a number of ways.··It came19·

·very late in the summer, first off.··So three days from20·

·the beginning of August.··So we were we will past any21·

·spring runoff.22·

· · · · · · Secondly, the request was different.··Under23·

·the Tongue River, it requested me to regulate post-'5024·

·uses this time on the Tongue until Montana's pre-'5025·



Page 5260

·uses were satisfied.··So it was a different take on the·1·

·call for regulation than we saw in 2004.·2·

· · · · · · And I believe they also had asked for water·3·

·stored in post-'50 space in our headwater reservoirs.·4·

·They asked that that be released.·5·

· · ·· Q.· ·What did you do after you received the 2006·6·

·call letter?·7·

· · ·· A.· ·Well, it was almost a repeat of 2004.··We·8·

·contacted staff.··We began to gather information on·9·

·streamflow and uses that we had in place.··I certainly10·

·made my attorney general staff aware again and decided11·

·that we needed to sit down again and prepare a12·

·response.13·

· · · · · · I would note that by this time, Mr. Hugh14·

·McFadden had left the state of Wyoming and my attorney15·

·at this point was Mr. Michael.16·

· · ·· Q.· ·Okay.··Look at Exhibit W157.17·

· · · · · · MR. BROWN:··Is it admitted?18·

· · · · · · THE CLERK:··No.19·

· · · · · · MR. BROWN:··Okay.20·

·BY MR. BROWN:21·

· · ·· Q.· ·Do you recognize this document?22·

· · ·· A.· ·I do.23·

· · ·· Q.· ·What is it?24·

· · ·· A.· ·This is a response -- or an e-mail from Mike25·



Page 5261

·Whitaker on my staff back to me, my deputy, and Sue·1·

·regarding the letter and beginning to send me·2·

·information on the river.·3·

· · ·· Q.· ·Do you recognize the attachments to this·4·

·e-mail?·5·

· · ·· A.· ·The attachment is I was starting a draft of·6·

·my response to Mr. Stults, and I had shared a draft of·7·

·that with Mike.··So I'm presuming this attachment or --·8·

·would have presented some of his edits or thoughts.·9·

· · ·· Q.· ·Were there other attachments to the e-mail?10·

·Do you see the last two pages?11·

· · ·· A.· ·There is a Tongue River Basin Reservoir12·

·capacity table and a Powder River Basin capacity table.13·

· · ·· Q.· ·Were those referenced in the e-mail?14·

· · ·· A.· ·They were.··They were attached as our15·

·carryover storage.16·




·Mr. Draper.20·

· · · · · · So Exhibit W157 is admitted.21·


·BY MR. BROWN:23·


· · ·· A.· ·He was responding, I'm certain, to my request25·



Page 5262

·to go back and start looking at how much we had stored,·1·

·what we had in storage, where we were regulated.··I·2·

·don't know that I've got his streamflow regulation data·3·

·here yet.··But he was starting to return to me with·4·

·some information of the on the ground situation at the·5·

·time of the call.·6·

· · ·· Q.· ·Let's take a look at the attachments that·7·

·relate the reservoir contents.··The first one being on·8·

·page that's marked with the Bates No. WY028554.·9·

· · · · · · Do you see that one?10·

· · ·· A.· ·I do.11·

· · ·· Q.· ·Can you just describe generally what12·

·information is conveyed by this chart?13·

· · ·· A.· ·This table would have presented, for example,14·

·you look across the top at Big Horn Reservoir.··It15·

·lists what it's a permitted capacities are for both16·

·pre- and post-1950.··It's total usable capacity in this17·

·case it's 4625 acre-feet.··And then it provides its18·

·carryover contents as of September 30 or the end of the19·

·prior water year.20·

· · · · · · So this one had 1300 acre-feet of water in it21·

·out of a total capacity of 4600 in rough numbers.22·

· · ·· Q.· ·Does it also -- does this table also contain23·

·the carryover from year 2004?24·

· · ·· A.· ·It does.··It shows in the next to the25·



Page 5263

·furthest right column, the carryover from the year·1·

·before that.·2·

· · ·· Q.· ·Okay.··And then the following page is the·3·

·same type of table except for the Powder River Basin;·4·

·is that right?·5·

· · ·· A.· ·It is.·6·

· · ·· Q.· ·So is this part of a -- just an information·7·

·gathering that you were doing in response to Montana's·8·

·2006 call?·9·

· · ·· A.· ·It is.10·

· · ·· Q.· ·Take a look at Exhibit J69.··Do you recognize11·


· · ·· A.· ·I do.13·

· · ·· Q.· ·Actually, this is a joint exhibit.··This is14·

·the response you gave to Mr. Stults for his 200615·

·letter; is that right?16·

· · ·· A.· ·Well, it is, although, I addressed to17·

·Mr. Moy.18·

· · ·· Q.· ·Why did you do that?19·

· · ·· A.· ·Mr. Stults had resigned by the time this20·

·letter went.··Or was -- his retirement was pending.··He21·

·was leaving his position.22·

· · ·· Q.· ·Okay.··Let's take a look at the second page23·

·of that exhibit.··And if you'll look at the third24·

·paragraph from the top, and it's the paragraph that25·



Page 5264

·starts out, "As the Compact makes no provision for the·1·

·'call' your letter suggests, it appears in our mutual·2·

·interest to devise an administration system, much like·3·

·our states worked on in the 1980s."·4·

· · · · · · Can you explain more fully what it is you're·5·

·trying to communicate with that paragraph?·6·

· · ·· A.· ·Some of this was very similar to my reaction·7·

·to the '04 letter, at least in this regard, where I·8·

·still didn't see the provision for the call.··And it·9·

·seemed to me that, where we tried to go in '04 and10·

·resurrect the work done on V, B and C was still11·

·something that needed to be done.··And reminded him12·

·that we tried to get engaged in that process and did,13·

·to some extent, in 2004.··But we didn't make a lot of14·

·progress.··The tour never happened, et cetera.··So had15·

·we succeeded, I mentioned here at the end, that work16·

·would have been valuable given what we now find17·

·ourselves in.18·

· · ·· Q.· ·And then the following paragraph you begin19·

·that sentence, "I find your claimed inability to fill20·

·Tongue River Reservoir confusing."21·

· · · · · · Can you describe more fully what you meant by22·

·that?23·

· · ·· A.· ·Well, yeah.··The records that we got, I think24·

·through the Division II office of the status of Tongue25·



Page 5265

·River Reservoir was that somewhere around the 9th of·1·

·July it was within shouting distance of being full.··It·2·

·was somewhere around -- I don't know, we said·3·

·97 percent here, 96 percent, that's what the website·4·

·showed us at that time.·5·

· · · · · · The inability to fill that reservoir when it·6·

·was only 2000 acre-feet from being full, I found·7·

·somewhat confusing.··Because this was a year in which·8·

·we, again, if you look if the inflow and the out of in·9·

·the Montana section of the river, I think that from10·

·October 1st of this water year to the calling date,11·

·something like 120,000 acre-feet or little more had12·

·gone into Montana.··The flow at Miles City was a13·

·hundred thousand.··Or thereabouts.14·

· · · · · · So what I'm struggling with is where was the15·

·water to fill the 2000 plus or minus acre-feet to fill16·

·Tongue River Reservoir when I'm essentially regulated17·

·off in Wyoming.18·

· · · · · · And so, again, I was questioning at this19·

·point the management of Tongue River Reservoir.··I20·

·can't manage that water once it leaves Wyoming.21·

· · ·· Q.· ·Sure.··Did you do anything to authorize22·

·Mr. Whitaker or his commissioners to regulate in23·

·response to this call?24·

· · ·· A.· ·No, not response specifically to this call.25·



Page 5266

·They were regulating intrastate, however, heavily.·1·

· · ·· Q.· ·Let's take a look at Exhibit J70.··And that's·2·

·a letter dated October 3rd, 2006, from Ms. Mary Sexton·3·

·to you; right?·4·

· · ·· A.· ·Correct.·5·

· · ·· Q.· ·And I'm not sure what you call it, a reply to·6·

·your response to your letter you'd sent to Mr. Moy; is·7·

·that right?·8·

· · ·· A.· ·It is.·9·

· · ·· Q.· ·And what was your general understanding of10·

·Ms. Sexton's position?11·

· · ·· A.· ·She was taking issue with my response letter.12·

·Understandably, you can see that we still disagreed on13·

·certain interpretational issues.··Go ahead.14·

· · ·· Q.· ·I'm sorry.··I was going to draw your15·

·attention to the second page, second paragraph from the16·

·top.··And the last sentence says, "In any event, you17·

·need not concern yourself with Montana's administration18·

·of water to which it is entitled under the Yellowstone19·

·River Compact."20·

· · · · · · Did you agree with her position there?21·

· · ·· A.· ·No, I disagree with that.··I think the22·

·Compact allows for both states to look at the other23·

·one.··I don't think it is Montana can criticize Wyoming24·

·only.··When -- it goes back to my earlier comments25·



Page 5267

·about the Compact points.·1·

· · · · · · When you look at the Compact, especially V, A·2·

·refers to appropriative rights in both sites.··B and C·3·

·refer it rights in both states.··The Compact -- or the·4·

·V, C calculation includes flow at the mouth.··To me·5·

·it's pretty clear that both of our uses need to be·6·

·transparent, understood.··And I thought that I had a·7·

·fair question on being able to ask about if 120,000·8·

·came to Montana and you manage the reservoir in the way·9·

·you chose -- I wasn't trying to manage the reservoir10·

·for them.··But I was saying if hundred thousand of that11·

·goes out the mouth, where does that become a liability12·

·of mine?13·

· · · · · · And so I did question the operation of Tongue14·

·River Reservoir simply in that regard.··And I don't15·

·think that questioning was appreciated.16·

· · ·· Q.· ·All right.··Let's take a look at Exhibit17·

·W164, and I believe it is admitted.18·


·BY MR. BROWN:20·

· · ·· Q.· ·And do you recognize that document?21·

· · ·· A.· ·I do.22·

· · ·· Q.· ·And that had to do with a resolution that23·

·Ms. Sexton had presented at the November -- or prepared24·

·for the December 6th, 2006, Compact Commission meeting;25·



Page 5268

·is that right?·1·

· · ·· A.· ·It is.·2·

· · ·· Q.· ·And this resolution wasn't adopted by the·3·

·Commission, was it?·4·

· · ·· A.· ·No.·5·

· · ·· Q.· ·Why not?·6·

· · ·· A.· ·I did not second the motion that it would·7·

·have taken?·8·

· · ·· Q.· ·Why didn't you second the motion?·9·

· · ·· A.· ·Well, couple reasons:··Number one, I had only10·

·seen this resolution a week earlier.··It was entirely11·

·crafted by the State of Montana.··Never had a chance to12·

·comment on it.··And I disagreed with some of the13·

·components of the resolution.14·

· · ·· Q.· ·Can you identify a couple of the components15·

·that you disagreed with?16·

· · ·· A.· ·Well, easily at the beginning, the -- I17·

·wasn't sure what was intended under Item No. 1 or why18·

·they wanted to say that.··And I'm on page 2, by the19·

·way.20·

· · ·· Q.· ·Okay.21·

· · ·· A.· ·Item 2 was some sort of resuscitation.22·

· · · · · · Item 3 required me to curtail consumption of23·

·the water from the Yellowstone River system in excess24·

·of my pre-January 1, 1950, consumption.··I did not see25·



Page 5269

·that in the Compact.·1·

· · · · · · Item 4, relating to Article V, was asking me·2·

·to agree to tie groundwater to the Compact.·3·

· · · · · · And Article 10 inserted the word·4·

·"groundwater" into -- or excuse me.··Bullet No. 5 on·5·

·the top of page 3, referencing Article X, was inserting·6·

·groundwater into the interpretation of Article X of the·7·

·Compact, which could be construed to be amending the·8·

·Compact.·9·

· · · · · · And so I was very uncomfortable entertaining10·

·this resolution and being asked to approve it all in11·

·the same meeting.12·

· · ·· Q.· ·Okay.··Well, Mr. Tyrrell, I think we're done13·

·with the documents, at least for me.··Mr. Draper might14·

·have some more for you.15·

· · · · · · And I want to, and I think you already said16·

·this clearly in your testimony.··But I want to go17·

·through it again so that it's clear.18·

· · · · · · At any time since you've been involved in the19·

·Yellowstone River Compact, did any Montana official20·

·make a call or demand on Wyoming that Wyoming curtail21·

·its uses for the benefit of Montana prior to 2004?22·

· · ·· A.· ·No.23·

· · ·· Q.· ·Did Mr. Stults make any such call or demand?24·

· · ·· A.· ·No.25·



Page 5270

· · ·· Q.· ·Did Mr. Moy?·1·

· · ·· A.· ·No.·2·

· · ·· Q.· ·Did Mr. Kerbel?·3·

· · ·· A.· ·No.·4·

· · ·· Q.· ·Did Mr. Dalby?·5·

· · ·· A.· ·No.·6·

· · ·· Q.· ·If you'd received a verbal call from any one·7·

·of those individuals, what would you have done?·8·

· · ·· A.· ·I would have asked them to take their·9·

·thoughts and put them in writing and send it to me in10·

·that fashion.··I wanted a record of that event.11·

· · ·· Q.· ·Has Montana made a call under the Compact12·

·since 2006?13·

· · ·· A.· ·They have not.14·

· · ·· Q.· ·So Wyoming hasn't had an opportunity to15·

·respond to a call since 2006; is that right?16·


· · ·· Q.· ·After the Special Master issued his first18·

·interim report in this case, what is your general19·

·understanding of Wyoming's obligation as related to20·

·Montana's pre-1950 rights?21·

· · ·· A.· ·In the first interim report, the Special22·

·Master wrote that he believed Wyoming does have an23·

·obligation to curtail post-1950 uses for a valid24·

·pre-1950 need in Montana.··Wyoming did not take25·



Page 5271

·exception to that finding.··And I believe now, that if·1·

·I get a valid call to curtail post-'50 uses in Wyoming·2·

·for the benefit of pre-'50 needs and uses in Montana,·3·

·that I would be required to honor that under the·4·

·doctrine of appropriation.·5·

· · ·· Q.· ·Okay.··In your view, what is the Compact·6·

·Commission's role with regard to that obligation?·7·

· · ·· A.· ·I think it could be an important role.··As I·8·

·look at the other interstate instruments that I have,·9·

·the North Platte comes to mind, that Commission and the10·

·technical staff that support the commissioners could be11·

·a very good venue for developing the protocols, the12·

·information sharing, the documentation we're going to13·

·need too respond to a call in that fashion.14·

· · · · · · I don't know that that process would be an15·

·easy one.··So I think it's going to take some work to16·

·ferret out that what process is so -- because it does17·

·involve both states.··And I think that the Commission18·

·could go a good venue for that work.19·

· · ·· Q.· ·Has the Commission, to your knowledge, done20·

·any work towards that end?21·

· · ·· A.· ·Not since the Special Master's interim report22·

·came out.23·

· · ·· Q.· ·Why not?24·

· · ·· A.· ·We're still under litigation.25·



Page 5272

· · ·· Q.· ·Okay.··If Montana makes a call in the future·1·

·years, do you know what your response is going to be?·2·

· · ·· A.· ·Well, it will be fact-specific based on the·3·

·information at that moment in time.··But the response·4·

·is going to be that I would be asking first of all, for·5·

·some information before honoring the call.··And that·6·

·information might be let's take -- we have a direct·7·

·flow situation, we have the storage situation.··Let's·8·

·take them -- direct flow first.·9·

· · · · · · Understanding that I need to respond and10·

·honor that call, I think that I would still need to11·

·validate it.··And in order to do that before12·

·responding, much like I have to validate the call on13·

·the North Platte, first of all, see the call in writing14·

·from probably my -- the Commissioner counterpart in15·

·Montana or their boss.··And I would expect that call to16·

·identify the calling right.··Where it is.··Is it short?17·

·How much is it short?··Verify that it is pre-Compact.18·

· · · · · · I would expect a representation that19·

·commissioners have been appointed on the Tongue River,20·

·that they have regulated the post-'50 uses in Montana21·

·off first.··I would expect some mechanism to verify and22·

·correct any regulation that may occur.··Things of that23·

·nature.24·

· · · · · · Then I would have to determine how to25·



Page 5273

·respond.··There are a number of things here.··Is it·1·

·futile, for example?··I don't know.··It would depend on·2·

·the call.··Those are all the fact-specific type things·3·

·that we would have to ask for.··Things of that nature.·4·

· · ·· Q.· ·Okay.··What about the -- with regard to a·5·

·storage right call?·6·

· · ·· A.· ·I think the biggest question on storage --·7·

·responding to a call for storage -- and that would be a·8·

·call to fill Tongue River Reservoir -- is as we sit·9·

·here today, I don't know the extent of the Tongue River10·

·right, the Tongue River Reservoir right.··So that needs11·

·to be settled.··If it's the right as it existed in12·

·1950, it's going to be 32,000 acre-feet.··That was the13·

·level of use at that time.14·

· · · · · · I've heard testimony that it could be way15·

·higher than that.··And so I really don't know.··We have16·

·no idea, as we sit here today, what is meant by a full17·

·Tongue River Reservoir.··So is it the one fill?··Is it18·

·the physical capacity?··Is it what Mr. Smith talked19·

·earlier about in testimony about the one and a half to20·

·two times the capacity of the reservoir?··I don't know21·

·what the target is.··I'd like to believe it was the22·

·32,000 that was in use at the time of the Compact.23·

·That's the pre-Compact gate right there.24·

· · · · · · We'd need to have some idea what the bona25·



Page 5274

·fide bypass from that reservoir is.··Is it -- we've·1·

·heard numbers again from as low as 50 CFS to reduce·2·

·icing problems on the river.··There was testimony one·3·

·year that they went down to 70 to try to conserve·4·

·water, a few years ago.··I've heard numbers of, I don't·5·

·know, two or 300 CFS.··Again, we've seen numbers all·6·

·over the board on what a bona fide bypass is for Tongue·7·

·River Reservoir.·8·

· · · · · · And I don't think that Wyoming ought to be·9·

·asked for paying for the bypass for anything other than10·

·bona fide water right instrument releases that were11·

·required by the reservoir.··Not operational decisions12·

·that I have no control over, but what is required out13·

·of that reservoir.14·

· · · · · · I think we need to know what the carryover is15·

·and what does that play in terms of what makes a full16·

·reservoir.··Those are, again, the types of things that17·

·could be addressed through some pretty good work of the18·

·Commission and its staff.··But I think those are fair19·

·questions.20·

· · · · · · It's -- as in the parallel with the Nebraska21·

·situation is that we all agreed on how the reservoirs22·

·were going to be operated and that the gates would23·

·close.··And the water that flowed in would then be24·

·booked into storage.··The difference here -- and so the25·



Page 5275

·Bureau, for example, couldn't operate those reservoirs·1·

·however they wished, and just send me a letter saying,·2·

·oh, by the way this year I'm short.·3·

· · · · · · So I think if we can get to a situation like·4·

·that here, where I understand and can defend the·5·

·operation of the reservoir and would agree then, if·6·

·they are short they truly are short, then I think the·7·

·regulation flows much more easily.··That's sort of the·8·

·struggle that I've had at this point is we now know·9·

·that we need to honor the post-'50 curtailment for10·

·benefit of pre-'50 in Montana.··I just am very nervous11·

·because I don't know what the pre-'50 level is that I12·

·owe for that reservoir.13·

· · ·· Q.· ·Okay.14·

· · ·· A.· ·And that concerns me.15·

· · ·· Q.· ·Sure.··And we've heard testimony in this case16·

·with regard to Montana water officials informing17·

·Wyoming that they had related the fact that there were18·

·times that Montana water rights weren't being19·

·fulfilled.20·

· · · · · · Do you recall that?21·

· · ·· A.· ·I do.22·

· · ·· Q.· ·And so I guess just a hypothetical question23·

·for you, the Yellowstone River Compact Commission24·

·meeting is next week.··And let's assume that at the25·



Page 5276

·meeting Mr. Davis tells Ms. Lowry that this last·1·

·summer, some pre-1950 rights in Montana were not·2·

·satisfied.·3·

· · · · · · 2013 was a pretty dry year; right?·4·

· · ·· A.· ·It was.·5·

· · ·· Q.· ·So having that information, are you going to·6·

·go forward and regulate off Wyoming post-'50 rights·7·

·next summer?·8·

· · ·· A.· ·Not with a notice in December.··I think the·9·

·call notice needs to be contemporaneous.··I cannot -- I10·

·don't believe in a case like this, regulate11·

·prospectively.··I don't know what the winter is going12·

·to bring.13·

· · ·· Q.· ·Well, is it true that sometimes just because14·

·a water right goes unsatisfied in one year, does that15·

·mean it's going to be unsatisfied the following year?16·

· · ·· A.· ·It does not.17·

· · ·· Q.· ·Do folks, in your experience, do people with18·

·water rights, do they use the same amount of water from19·

·year to year?20·

· · ·· A.· ·No, they use what their operation of water21·

·supply bring to them whenever they are needing it.22·

· · ·· Q.· ·Even if it's probable, under the23·

·circumstances and the facts that we know that a24·

·particular water right's going to be unsatisfied at25·



Page 5277

·some point in a given irrigation season, do you know·1·

·when that's going to happen?·2·

· · ·· A.· ·I don't.·3·

· · ·· Q.· ·In your experience, is it important in a·4·

·priority regulation the timing of that regulation?·5·

· · ·· A.· ·It is.··We don't regulate until the shortage·6·

·actually occurs.·7·

· · ·· Q.· ·You also know, and I think you know -- well,·8·

·let me ask you.··Did you know prior to Montana making a·9·

·call that the T & Y Irrigation District right was 187.510·

·CFS?11·

· · ·· A.· ·I do.12·

· · ·· Q.· ·Okay.··Can you tell, by looking at the state13·

·line flow, whether or not that right is being14·

·satisfied?15·

· · ·· A.· ·I cannot.16·

· · ·· Q.· ·Why not?17·

· · ·· A.· ·'Cause first of all -- two things.··I need to18·

·know what's at their headgate, not at the state line.19·

·Also, I don't know what the flow is below the dam.··I20·

·don't know how much return flow may be coming back or21·

·tributary flow may be coming to the river after a rain22·

·event or after other irrigation activities to increase23·

·the natural flow below the dam.··So I can't tell by24·

·looking at the state line how much natural flow is at25·



Page 5278

·anybody's headgate in Montana until they tell me·1·

·exactly that.·2·

· · ·· Q.· ·Would you regulate off junior water rights in·3·

·Wyoming for the benefit of a senior right if you knew·4·

·that right was going to be short a week from today?·5·

· · ·· A.· ·I would regulate when they were short and·6·

·when they placed a call and told me so.·7·

· · ·· Q.· ·Why couldn't you do it if you knew they were·8·

·going to be short?·9·

· · ·· A.· ·They aren't short yet.10·

· · ·· Q.· ·Do things happen in a week's time?11·

· · ·· A.· ·You could get a rainfall event.··You could12·

·get somebody in between the two parties may turn off13·

·and make more water available to the lower calling14·

·right.··It's much more contemporaneous.15·

· · ·· Q.· ·Does the Compact identify a flow rate at the16·

·state line that you could make your decisions on?17·

· · ·· A.· ·It does not.18·

· · ·· Q.· ·In your experience -- well, I think we've got19·

·enough with regard to that.20·

· · · · · · But I want to go back.··And I don't want to21·

·end with the idea that you wouldn't be responsive to a22·

·Montana call.··And so if Montana does make a call, and23·

·it's a bona fide call that you can judge as a valid24·

·call, what would be your response?25·



Page 5279

· · ·· A.· ·With your statement that I judge it as a·1·

·valid call, we would go out and regulate and curtail·2·

·the post-'50 uses in Wyoming at that time.·3·

· · ·· Q.· ·And so --·4·

· · ·· A.· ·Under the doctrine of appropriation.·5·

· · ·· Q.· ·So under those circumstances, you would·6·

·authorize your water commissioners the same kind of·7·

·authority you have in other places in the state?·8·

· · ·· A.· ·I think that would be the case where I would·9·

·do that, yes.10·

· · ·· Q.· ·All right.··Thank you.11·

· · · · · · MR. BROWN:··That's all I have.12·

· · · · · · SPECIAL MASTER:··Okay.··It's quarter after13·

·right now.··So this might be a good time for the first14·

·of the afternoon breaks.··And then we'll come back for15·

·cross-examination immediately after that.16·

· · · · · · · · · · · (Recess taken 2:14 to 2:2717·

· · · · · · · · · · · p.m., November 26, 2013)18·

· · · · · · SPECIAL MASTER:··Okay.··Everyone can be19·

·seated.20·

· · · · · · Mr. Draper.21·

· · · · · · MR. DRAPER:··Good afternoon, Your Honor.22·

· · · · · · SPECIAL MASTER:··Good afternoon.23·

·24·

·25·


PATRICK TYRRELL - November 26, 2013Cross-Examination by Draper

Page 5280

· · · · · · · · · ·· CROSS-EXAMINATION·1·

·BY MR. DRAPER:·2·

· · ·· Q.· ·Good afternoon, Mr. Tyrrell.·3·

· · ·· A.· ·Good afternoon.·4·

· · ·· Q.· ·You concluded your testimony referring to·5·

·matters that would come up in the case of a call.··And·6·

·I'd like to address some of those issues by going back·7·

·to the first call letter in the joint exhibits, which·8·

·is Joint 64.·9·

· · · · · · Do you have a copy of that there?··That's the10·

·May 18th, 2004, letter.11·

· · ·· A.· ·I believe I do.12·

· · ·· Q.· ·You looked at this letter several times13·

·during your direct testimony.··And you noted that in14·

·the opening of the first paragraph of that letter in15·

·the second sentence, it says, "Also at the Yellowstone16·

·River Compact Commission meeting in April, I," and that17·

·would be Mr. Stults -- "agreed to send you a letter18·

·stating our concerns and needs."19·

· · · · · · And that was Mr. Stults addressing you in the20·

·letter of May 18th, 2004.··And as I understand your21·

·testimony, you did have such discussions at the April22·

·meeting that he's referring to; correct?23·

· · ·· A.· ·I believe we talked about the general24·

·water-short situation we were in, yes.25·



Page 5281

· · ·· Q.· ·And if you hadn't known before, you knew at·1·

·that point that the senior water users were short -- or·2·

·likely to be short in Montana; correct?·3·

· · ·· A.· ·To the extent that Mr. Stults said that his·4·

·water right -- or water users were going to be short,·5·

·very likely my response was, I know.··So are mine.··So·6·

·yes.·7·

· · ·· Q.· ·You agreed that it was a water-short·8·

·situation in both states?·9·

· · ·· A.· ·Very likely, yes.10·

· · ·· Q.· ·So at that point, if you needed any notice,11·

·you were on notice that the water rights in Montana12·

·were either being shorted or on the verge of being13·

·shorted?14·

· · ·· A.· ·I had been informed that Montana was going to15·

·be short on water generally for sure.··And as I said,16·

·I'm sure I was in the same boat.17·

· · ·· Q.· ·And, in fact, you stated that in your18·

·responsive letter of May 24th that year, Joint19·

·Exhibit 65; correct?20·

· · ·· A.· ·Are you going to -- are you referring to21·

·anything specific in that letter?22·

· · ·· Q.· ·I will be, yes.23·

· · ·· A.· ·Okay.24·

· · ·· Q.· ·And in this letter of May 24th, you state25·



Page 5282

·there in the first paragraph that, "We, too, are·1·

·regulating our water rights back to the 1880s in the·2·

·Tongue and Powder Basins"; correct?·3·

· · ·· A.· ·Correct.·4·

· · ·· Q.· ·But at that time you weren't regulating all·5·

·water rights back to the 1880s in the Tongue and Powder·6·

·Basins, were you?·7·

· · ·· A.· ·We were regulating those above intrastate·8·

·calls.··If they weren't above an intrastate call, we·9·

·didn't know what they might be doing.10·

· · ·· Q.· ·So there were water rights that were not11·

·being regulated at the time you wrote this letter?12·

· · ·· A.· ·Yeah.··And I think that there had been some13·

·history of not regulating on the main stem Tongue.··And14·

·that probably continued in '04.15·

· · ·· Q.· ·In fact, up to that time, water rights had16·

·never been regulated in the main stem; isn't that17·

·right?18·

· · ·· A.· ·To my knowledge, I don't know that we had,19·

·correct.20·

· · ·· Q.· ·And up until the time that regulation goes on21·

·in Wyoming, any of the reservoirs are able to store;22·

·isn't that right?23·

· · ·· A.· ·Generally speaking, you're correct.··Until24·

·regulation goes on, storage and direct flow use is not25·



Page 5283

·regulated.·1·

· · ·· Q.· ·And so up until that time, you can store in·2·

·reservoirs in Wyoming even with post-Compact·3·

·priorities; isn't that right?·4·

· · ·· A.· ·I believe that's correct.·5·

· · ·· Q.· ·In the second paragraph of that same letter,·6·

·you refer to Park Reservoir, don't you?·7·

· · ·· A.· ·I'm waiting for it to come up here.··There it·8·

·is.··Yes, I see it there.·9·

· · ·· Q.· ·Now, Park Reservoir is a reservoir that has10·

·both pre-Compact and post-Compact storage rights;11·

·correct?12·

· · ·· A.· ·Correct.13·

· · ·· Q.· ·And you were pointing out in this paragraph14·

·what you saw as a misunderstanding in Mr. Stults'15·

·letter; correct?16·

· · ·· A.· ·Yeah.··I had read his letter to state that we17·

·were storing the 9300 when, in fact, that was simply18·

·the capacity for post-Compact capacity of all those19·

·reservoirs.20·

· · ·· Q.· ·And he was referring, and so were you, I21·

·think, to the table that was attached to his letter22·

·entitled Wyoming Reservoirs Capacity Report?23·

· · ·· A.· ·I believe we were referring to the capacity24·

·report that we provided at the April '04 Technical25·



Page 5284

·Committee meeting.·1·

· · · · · · MR. BROWN:··I have a request, Your Honor.··I·2·

·notice that Mr. Tyrrell keeps looking at the letter to·3·

·try to find some context with regard to what is in it.·4·

·If he could please be given some time to find a full·5·

·exhibit instead of looking up what Montana has chosen·6·

·to blow up on the screen, I would appreciate that.·7·

· · · · · · SPECIAL MASTER:··I certainly think it's fair·8·

·that he should be able to have the letter in front of·9·

·him.··And I'm sorry.··I assumed he had it in front of10·

·him but was just looking over at the screen to11·

·reference the specific provisions.··So we'll wait until12·

·he has that copy.13·

· · · · · · MR. DRAPER:··I certainly thought he had it14·

·there.··I had referred to it during his direct15·

·testimony.··But I agree with Mr. Brown, that we need to16·

·make sure that he's able to find that.17·

· · · · · · THE WITNESS:··If I may ask, the Wyoming18·

·reservoirs table I see now on the screen is attached to19·

·which exhibit?20·

·BY MR. DRAPER:21·

· · ·· Q.· ·That's J64.22·

· · ·· A.· ·Okay.23·

· · ·· Q.· ·And this was a table that you had provided to24·

·Mr. Stults at the April meeting?25·



Page 5285


· · ·· Q.· ·And for the example you were giving, we see·2·

·Park Reservoir was the one you had mentioned showing a·3·

·pre-1950 storage capacity of 7347 acre-feet; correct?·4·

· · ·· A.· ·I see that number here.·5·

· · ·· Q.· ·And a corresponding post-1950 capacity of·6·

·3015 acre-feet; correct?·7·

· · ·· A.· ·Correct.·8·

· · ·· Q.· ·And then there's a figure, 3380 acre-feet,·9·

·which is under the column headed Carryover 2004.··You10·

·see that?11·

· · ·· A.· ·I do.12·

·13·

·14·

·15·

·16·

·17·

·18·

·19·

·20·

·21·

·22·

·23·

·24·

·25·



Page 5286

· · ·· Q.· ·In your responsive letter you were referring·1·

·to this table, I think, in your Park Reservoir example.·2·

·After siting those capacity numbers you said, "On·3·

·October 1, 2003, it held only 3888 [sic] acre-feet,·4·

·clearly within its pre-1950 priority capacity."··You·5·

·see that?·6·

· · ·· A.· ·I do.·7·

· · ·· Q.· ·But the 3388 acre-feet was the carryover·8·

·amount, wasn't it?·9·

· · ·· A.· ·It was.10·

· · ·· Q.· ·It was not necessarily the pre-1950 stored11·

·water that was carried over?12·

· · ·· A.· ·It was the amount in carryover at the end of13·

·2004.··So it was the amount in storage at the end of14·

·2004.15·

· · ·· Q.· ·And isn't the portion of the carryover that16·

·can be assigned to the earliest -- or to the latest17·

·priority in the reservoir?18·

· · ·· A.· ·I don't know that that's always the case.··To19·

·me, we would oftentimes carryover.··And then when it20·

·came time to store again we'd be storing under the21·

·senior priority until it was full or until that22·

·priority was filled.23·

· · ·· Q.· ·Because you had accounted the releases during24·

·the previous season to the earliest priority, thus25·



Page 5287

·freeing up the earliest priority space in the reservoir·1·

·for refilling the next season; correct?·2·

· · ·· A.· ·I don't know that we counted the releases,·3·

·and I'm thinking back here against any particular·4·

·priority would depend on the ownership of the·5·

·reservoir.··If two owners had the different priorities,·6·

·we'd charge them against the owners.··If it was the·7·

·same owner, it was very likely carried over so that we·8·

·could store the senior priority the next year, give·9·

·them the best shot at filling in the upcoming season.10·

· · ·· Q.· ·And if the ownership is in a single11·

·ownership, it's just a different priority of water12·

·rights, then a number like the 3388 would be assigned13·

·to the later priority to the extent possible and the14·

·carryover would be assigned to the earlier priority, in15·

·this case the pre-Compact priority, only as necessary16·

·after the post-Compact had been counted for fully;17·


· · ·· A.· ·I don't think that's what I just said.··But19·

·my accounting of the reservoirs would be informed by20·

·talking to my staff and saying, how do you account the21·

·seniors and juniors in these reservoirs?··And my22·

·recollection was they would allow the filling of the23·

·pre-Compact space by assigning the -- or assuming that24·

·the carryover was probably the junior space so that the25·



Page 5288

·senior, again, had first shot at the water coming into·1·

·the new water year.·2·

· · ·· Q.· ·So the 3388 would be assigned to that junior·3·

·priority to the extent possible, wouldn't it?·4·

· · ·· A.· ·In the case that you're pointing at, 3015 of·5·

·that number would be, in terms of filling the next·6·

·year, looked at as under the post.··And the remaining·7·

·73 acre-feet would have already been in the pre-'50·8·

·space is my presumption.·9·

· · ·· Q.· ·Or 373 acre-feet that would be left over?10·

· · ·· A.· ·300.··There you go.··Yep.··You're better at11·

·math.12·

· · ·· Q.· ·Just got lucky.··So the amount at that time13·

·that was likely counted in the pre-Compact space was14·

·only 373; correct?15·

· · ·· A.· ·Yes.16·

· · ·· Q.· ·Now, if we go to the next paragraph, we get17·

·to the statement that I think you discussed with18·

·Mr. Brown.··You refer to the first sentence at the19·

·bottom paragraph o page 1.··And we're in your20·

·responsive letter, J65.··You start out that sentence by21·

·saying, "Our states have discussed in the past that the22·

·Yellowstone River Compact does not provide an explicit23·

·mechanism for administration as compared to some other24·

·compacts."25·



Page 5289

· · · · · · Do you see that?·1·

· · ·· A.· ·I do.·2·

· · ·· Q.· ·And then turning to the next page, first full·3·

·paragraph, I think you're referring back to that first·4·

·reference.··"As I stated earlier, Compact makes no·5·

·provision for any state to make a call on a river."·6·

· · · · · · Did I read that correctly?·7·


· · ·· Q.· ·So your position was very clear at that time·9·

·that there was no provision under the Compact for a10·

·call; isn't that right?11·

· · ·· A.· ·At that time, I felt that way pretty12·

·strongly, yes.··To put that in context, I know what a13·

·call looks like on the North Platte.··I know what a14·

·call looks like on the Bear.··I know what curtailment15·

·means on the Colorado.16·

· · · · · · I didn't see that language in this Compact.17·

·And it was troublesome.··I didn't know how to respond.18·

·I do not see that ability to respond to a call in this19·

·particular Compact.··To the extent they talked about20·

·post-'50 rights, it was with a mathematical formula.21·

·It would have almost been easier if they had left V, C22·

·out, but they didn't.··That was my guidance on23·

·post-'50.24·

· · ·· Q.· ·And in your defense, I would say the Supreme25·



Page 5290

·Court hadn't ordered it -- up to that point the Supreme·1·

·Court hadn't ordered a call where there hadn't been a·2·

·specific provision specifying that; is that right?·3·

· · ·· A.· ·Well, if you're asking me about the Supreme·4·

·Court, I'm going to decline to answer.··I don't know.·5·

· · ·· Q.· ·To the extent you refer to those principles·6·

·in your daily administration.··Which may not be a daily·7·

·occurrence, I understand.·8·

· · ·· A.· ·Restate your question, please.·9·

· · ·· Q.· ·No, let me go on.··Don't need to pursue that10·

·further.11·

· · ·· A.· ·Thank you.12·

· · ·· Q.· ·Now, you proceeded to suggest that further13·

·information exchange would be beneficial; correct?14·

· · ·· A.· ·I did.15·

· · ·· Q.· ·And much of the correspondence that we've16·

·seen that followed that initial exchange had to do with17·

·exchanging information; isn't that right?18·

· · ·· A.· ·Yes, it did.··And we did exchange as much as19·

·we could get our hands on in short time.20·

· · ·· Q.· ·And you expressed some frustration, we saw,21·

·in your direct testimony, that more information wasn't22·

·being exchanged; isn't that right?23·

· · ·· A.· ·Yeah.··I was frustrated.··I imagine Jack was24·

·too.··Although, I hesitate to speak for him.··I think25·



Page 5291

·we both wished we could have moved faster, but we were·1·

·asking a lot of each other.··It was a big deal.··And it·2·

·didn't come together probably as cleanly as either one·3·

·of us had hoped because of the amount of information·4·

·that we didn't know about each other.·5·

· · ·· Q.· ·Now, you understood that the call was on·6·

·during those weeks and months following the initial·7·

·letter; isn't that right?·8·

· · ·· A.· ·Well, I never got a letter rescinding·9·

·Mr. Stults' desire, so -- but -- or asking me to10·

·reconsider my May 24th response either.11·

· · ·· Q.· ·We looked at Exhibit J66, for instance,12·

·that's the July 6th letter that you wrote to13·

·Mr. Stults.··July 6, 2004.14·

· · ·· A.· ·If you'll allow me a moment, I'm digging.15·

· · ·· Q.· ·You bet.16·

· · ·· A.· ·Was that an exhibit that you gave me, Chris,17·

·the July 6th?18·

· · · · · · SPECIAL MASTER:··Yes.··I can even loan you my19·

·copy.20·

· · · · · · THE WITNESS:··Oh, it's here.··It's just as21·

·I've been digging through.··I've got them a little bit22·

·out of order.23·

· · · · · · SPECIAL MASTER:··It looks like this.··The24·

·information question.25·



Page 5292


· · ·· Q.· ·I have an extra copy.··Let me give that to·2·

·you.·3·

· · ·· A.· ·That's all I need is more paper up here.·4·

·Yeah, give me one.··Thank you.··I appreciate that.·5·

· · ·· Q.· ·So is it fair to say that this letter·6·

·documents a good deal of requests for information and·7·

·the status of responses to that?·8·

· · ·· A.· ·It does.·9·

· · ·· Q.· ·There was information requested in your10·

·earlier meetings and telephone calls that you11·

·documented had been received in part, document that12·

·there was other information that had not been received,13·

·had been an e-mail from Ms. Lowry requesting further14·

·information, including the appendix maps for the15·

·reconnaissance study that's been mentioned before in16·

·this proceeding.··For the record, that's Exhibit M434.17·

· · · · · · And then you add -- on the second page, you18·

·add a new list of 11 additional items; correct?19·

· · ·· A.· ·Yes.20·

· · ·· Q.· ·And you considered all this information21·

·necessary in order to evaluate the Montana call; isn't22·

·that right?23·

· · ·· A.· ·It certainly was -- yes.··In addition to just24·

·understanding.··Again, I felt I had the -- deserved a25·



Page 5293

·response on how water was managed on Montana side·1·

·because of the geographic extent of the Compact.·2·

· · · · · · And so, yeah, these were things that we felt·3·

·would help us in that direction.·4·

· · ·· Q.· ·And, in fact, you never did provide any water·5·

·in response to Mr. Stults' May letter, did you?·6·

· · ·· A.· ·I did no regulation in response to it, that's·7·

·correct.·8·

· · ·· Q.· ·You did not take any actions to allow more·9·

·water to reach Montana?10·

· · ·· A.· ·No, I did not.11·

· · ·· Q.· ·Okay.··So 2004 ended without Wyoming12·

·providing any water at all to Montana in response to13·

·that letter?14·

· · ·· A.· ·No additional water went to Montana that year15·

·as a result of the letter, that's correct.16·

· · ·· Q.· ·I'd like to turn our attention to the annual17·

·report for that year, which is Joint Exhibit 54.18·

· · ·· A.· ·Found that one.19·

· · ·· Q.· ·Oh, I was about to offer you one.··But you're20·

·in good shape.··Good.21·

· · · · · · Now, if we look at the first page behind the22·

·cover of the report, that's designated with a Roman23·

·Numeral II at the bottom right, we see that there are24·

·two meetings that occur during 2004; correct?25·



Page 5294

· · ·· A.· ·Correct.·1·

· · ·· Q.· ·That meeting took place in Sheridan?·2·

· · · · · · SPECIAL MASTER:··Which meeting?··The first or·3·

·second?·4·

· · · · · · MR. DRAPER:··I'm sorry.··The first meeting.·5·

· · · · · · SPECIAL MASTER:··The April 14th meeting?·6·

· · · · · · MR. DRAPER:··Actually --·7·

· · · · · · SPECIAL MASTER:··Yes.·8·


· · ·· Q.· ·It's cited as being the April 15th meeting in10·

·the second line of the second paragraph, and occurring11·

·in Sheridan.··There was a meeting the day before that12·

·is referred to in the bottom paragraph on that page, of13·

·the Technical Committee.14·

· · ·· A.· ·Yes, I see that.15·

· · ·· Q.· ·And, in fact, it is stated at the bottom of16·

·that page that Ms. Lowry provided a summary and that17·

·the minutes are appended.··The minutes actually didn't18·

·get appended, did they?··At least I couldn't find those19·

·attached.20·

· · ·· Q.· ·I think we were admitted separately in this21·

·proceeding as Exhibit M207.22·

· · · · · · MR. DRAPER:··If we could have M207 up on the23·

·screen.24·

·25·



Page 5295


· · ·· Q.· ·And I don't think you have M207 there.·2·

· · · · · · SPECIAL MASTER:··You going to be asking the·3·

·witness any questions about it?·4·

· · · · · · MR. DRAPER:··I do want to go to one statement·5·

·there and ask the witness.·6·

· · · · · · SPECIAL MASTER:··Then we should probably get·7·

·the witness a copy of M207, if we can.·8·

· · · · · · MR. DRAPER:··Okay.·9·

· · · · · · SPECIAL MASTER:··I seem to have multiple10·

·copies of M207.··I'm going to actually volunteer my11·

·copy.12·

· · · · · · MR. DRAPER:··Very good.13·

· · · · · · SPECIAL MASTER:··It's been a popular exhibit.14·


· · ·· Q.· ·I believe you've seen these minutes before;16·

·is that right?17·

· · ·· A.· ·I believe I have, yes.18·

· · ·· Q.· ·I'd like to turn your attention to the fourth19·

·page, which has a Bates number, Wyoming Bates number,20·

·of 018730.··And you can see under paragraph 6 that21·

·under the second dashed line, it says "bleak outlook22·

·for 2004 runoff -- looking very similar to 2002."··And23·

·then it says, "Total runoff into Tongue River Reservoir24·

·may be sufficient to fill the original water right in25·



Page 5296

·the reservoir, but may not fully fill the enlargement."·1·

· · · · · · What do you understand that statement to·2·

·mean?·3·

· · ·· A.· ·Well, pretty much what it says.··It may be·4·

·sufficient to fill the original volume of the reservoir·5·

·water right in Montana's understanding and not fully·6·

·fill the enlargement which would have been the 1999·7·

·enlargement.··So if you're looking at roughly 69,000 as·8·

·the original reservoir or that ballpark, given that we·9·

·often see the total is about 79, then I just think they10·

·were saying maybe you'd get enough for that part but11·

·not the extra.··The next sentence also says that it12·

·would probably would be difficult for Wyoming to fill13·

·its mountain reservoirs.14·

· · ·· Q.· ·So this statement assumes that there might be15·

·a difference in status of the pre-enlargement and the16·

·post-enlargement space, doesn't it?17·

· · ·· A.· ·I think in this particular sentence, I don't18·

·infer a lot about status.··It simply says there may be19·

·enough water for the original right but not for the20·

·enlargement, the physical enlargement.21·

· · ·· Q.· ·Now, the -- if you assume, which, of course,22·

·as you probably know we don't assume there's any23·

·difference in the different parts of the reservoir24·

·resulting from the enlargement.25·



Page 5297

· · · · · · But if you'd look at the two spaces in there·1·

·separately, the -- and assume that the enlarged space·2·

·has some secondary priority, that's the kind of space·3·

·that gets filled when runoff is good; right?·4·

· · ·· A.· ·Well, yeah, if you consider your enlargement·5·

·is on top of the reservoir, then it would -- taking·6·

·your assumption -- go ahead.·7·

· · ·· Q.· ·Well, the first time it fills after the·8·

·reservoir gets enlarged in 1999, which was the next·9·

·year, 2000, it filled all the way, didn't it?10·

· · ·· A.· ·I don't recall.··It may have.11·

· · ·· Q.· ·Okay.··That first time that it filled, that12·

·filled the enlargement space, didn't it?13·

· · ·· A.· ·If it fill the enlarged reservoir entirely, I14·

·would agree with you.15·

· · ·· Q.· ·Okay.··And it did, so, I'll ask you to assume16·

·that for my question.··So that extra water that was17·

·filled in 2000, after that, that essentially resides at18·

·the bottom of the reservoir, doesn't it?··And when you19·

·release water, just as we talked about with Park20·

·Reservoir, you're freeing up your earlier priority, at21·

·least in the case of Park Reservoir as a priority.22·

·You're freeing up that space so that it can be the23·

·first to be filled the next season; isn't that right?24·

· · ·· A.· ·If that's how Montana manages those spaces.25·



Page 5298

·I'm not presuming to tell Montana which priority they·1·

·assume in their space.·2·

· · ·· Q.· ·Right.··But as an engineering and water·3·

·rights matter, it makes sense to account for reservoirs·4·

·with more than one priority as we have with Park·5·

·Reservoir, to be releasing its early priority water·6·

·first, and then thereby free up the space for·7·

·refilling, is that right, at the best priority?·8·

· · ·· A.· ·To me, it would seem that if you have space·9·

·permitted under different priorities, different uses,10·

·and on, for example, the permitting documents they11·

·define elevations for the different priorities,12·

·maybe -- I think it may vary in the reservoirs, I guess13·

·is where I'm going.··But it depends on how that14·

·particular reservoir is managed.··And I guess I don't15·

·know exactly where the -- exactly what the parallel is16·

·between Park and this one other than an engineering17·

·judgment doesn't make sense.··I think it's different18·

·than that.··Depends on how well defined the water right19·

·is and if it's attached to certain lands or certain20·

·uses.21·

· · · · · · MR. DRAPER:··Your Honor, may I use the22·

·butcher paper for a second?23·

· · · · · · SPECIAL MASTER:··Yes, you may.24·

· · · · · · MR. DRAPER:··Thank you.25·



Page 5299


· · ·· Q.· ·If we have a reservoir that gets enlarged by·2·

·a certain amount, the first time it fills it's·3·

·appropriate to consider it filling that enlarged space;·4·

·correct?·5·

· · ·· A.· ·If it totally fills, I would agree with that.·6·

·The whole thing is filled.·7·

· · ·· Q.· ·But when you then draft the reservoir for·8·

·beneficial uses, you're using your pre-enlargement·9·

·water.··And this enlarged, that extra capacity10·

·essentially ends up residing at the bottom.··That's11·

·like a savings account, isn't it?··That when you've got12·

·enough water to fill the reservoir, you can put water13·

·in your savings account.··But you operate out of your14·

·checking account, which is the, in this example, the15·

·earlier storage space?16·

· · ·· A.· ·I guess -- I understand the point that's17·

·being made.··And to me, I guess the distinction I was18·

·making is if you have two different users, one is using19·

·the large space and paid for it and if it filled, then20·

·I think you get both accounts when the two different21·

·users are taking it.··Depends upon how well you have to22·

·manage the distinct accounts or different users.23·

· · · · · · That's an example probably in the North24·

·Platte Reservoir is where you have a collection of25·



Page 5300

·Pathfinder project, the Kendrick project, Glendo·1·

·project, contractors in different reservoirs.··They can·2·

·still withdraw from their accounts in those reservoirs.·3·

·And it doesn't just reside on the bottom.··But those·4·

·accounts are tracked separately so that depending on·5·

·what the enlargement was for, if some water went to·6·

·that use, that enlargement account would actually be·7·

·debited.··So it depends on how the reservoir is·8·

·operated.·9·

· · ·· Q.· ·Right.··And my assumption here, and probably10·

·I should have stated it more clearly is that there's11·

·common ownership?12·

· · ·· A.· ·I would tend to agree with you in that case.13·

· · ·· Q.· ·Thank you.··So to come back to the language14·

·we were looking at in the notes from the Technical15·

·Committee meeting, wouldn't you agree that that16·

·language that we quoted doesn't fully recognize the17·

·principle we're talking about here?18·

· · ·· A.· ·You'll have to refresh me on the language19·

·again.20·

· · ·· Q.· ·That was the one on the fourth page, Bates21·

·No. WY018730, where it was said, "Total runoff into22·

·Tongue River Reservoir may be sufficient to fill the23·

·original water right on the reservoir, but may not24·

·fully fill the enlargement."25·



Page 5301

· · · · · · To the extent that there is common ownership·1·

·in Tongue River Reservoir, that wouldn't fully·2·

·recognize the principle we just agreed upon; correct?·3·

· · ·· A.· ·Well, I don't know who penned these words.··I·4·

·think what they were getting at was that physically·5·

·there was enough water for the reservoir before it was·6·

·enlarged; there may not physically be enough for it as·7·

·enlarged.··I think that's the context of that sentence.·8·

· · ·· Q.· ·And unless --·9·

· · ·· A.· ·We might be saying the same thing.··I don't10·

·know.11·

· · ·· Q.· ·I think we are.··But to the extent that the12·

·reservoir is not drawn down completely, it's only drawn13·

·down partly, and we're relying on the pre-enlargement14·

·water first, then the amount of refill is the same15·

·whether you had an enlarged reservoir or not?16·

· · ·· A.· ·Well --17·

· · ·· Q.· ·Isn't that right?18·

· · ·· A.· ·The amount of refill would be whatever the19·

·carryover is back up to the full reservoir.··So I think20·

·it's up to the accounting reservoir manager to book it21·

·how it's appropriate for that reservoir.22·

· · ·· Q.· ·Now, turning back to the pages -- or joint23·

·exhibit that we were referring to earlier, Joint 54,24·

·the 2004 report.··Do you have a copy of that still25·



Page 5302

·handy?·1·

· · ·· A.· ·I do.·2·

· · ·· Q.· ·Looking over on page Roman VIII, this is the·3·

·page on which the language gets closest to referencing·4·

·the existence of the call letter that was issued·5·

·earlier that year; isn't that right?·6·

· · ·· A.· ·Which part of that page?··I have page Roman·7·

·Numeral VIII here.··Which part of that page?·8·

· · ·· Q.· ·The middle paragraph that starts "Mr. Stults·9·

·stated that 2004 flows in Tongue River in Montana were10·

·deficient," that paragraph.11·

· · ·· A.· ·I see that.12·

· · ·· Q.· ·As far as I can tell, the closest we get to a13·

·specific reference to the letter is the third line from14·

·the bottom where it's stated, "Montana specifically15·

·requested that Wyoming release post-1950 stored water16·

·so that pre-1950 users in Montana could satisfy their17·

·rights."18·

· · · · · · Do you think that's referring to the call19·

·letter?20·

· · ·· A.· ·I do.··This particular sentence is referring21·

·to the storage component of that letter specifically.22·

· · ·· Q.· ·And as far as I can tell from reviewing this23·

·report, this is as close as it gets to referring to24·

·either the storage or the direct flow aspect of that25·



Page 5303

·letter.·1·

· · ·· A.· ·It -- without having at this moment read the·2·

·rest of the report here, the next sentence does refer·3·

·to the call.··It says Wyoming indicated that the call·4·

·would not be heeded was the words that ended up here.·5·

·So, yeah, it referred to the, quote, call.·6·

· · ·· Q.· ·And it's stated there that it would not be·7·

·heeded as Wyoming believes there is no legal basis for·8·

·making such deliveries; correct?·9·

· · ·· A.· ·Yeah.··That harkens back, I think, to my10·

·letter that the pre versus pre direct flow call that11·

·was made in the original letter, I found -- I really12·

·struggled with that.··So I'm sure that's what that was13·

·referring to.14·

· · ·· Q.· ·The aspect of that that is picked up in this15·

·report is the specific request that Wyoming release16·

·post-1950 stored water so that pre-1950 users in17·

·Montana could satisfy their rights.··And that was part18·

·of what you disagreed with; correct?19·

· · ·· A.· ·Well, they -- generically or generally, I had20·

·the, as I've stated a couple times today the conceptual21·

·problem with the call, not seeing it in the Compact.22·

·The other part of the storage call that we got in our23·

·May 18th letter was that it was a universal, global24·

·call for stored post-1950 water.··So it didn't matter25·



Page 5304

·even whether it was carried over or stored in 1990.·1·

·They just wanted me to release any water in post-1950·2·

·space.··And any water that had been stored, certainly·3·

·prior to 2004, I was confident that that, in any·4·

·context, was not the subject of a call.·5·

· · ·· Q.· ·And did you make any effort to determine what·6·

·part might be validly subject to a call?·7·

· · ·· A.· ·We looked at -- well, understand I had, early·8·

·on, the threshold issue with the call for the reasons·9·

·already stated.··We did look at how much we had in10·

·storage to see what our storage activity had been.··And11·

·that was among the work that we did.··So I probably12·

·didn't answer your question, but ask it again.··I'm13·

·sorry.14·

· · ·· Q.· ·Well, you said some storage such as the15·

·storage in Lake DeSmet in the Powder Basin, that your16·

·understanding was it had been in storage for some17·

·years.··But there was other water that was stored that18·

·very season of 2004, wasn't there, in Tongue River19·

·Reservoirs in Wyoming?20·

· · ·· A.· ·Yeah, I believe we had stored some.··We had21·

·not filled them all, I don't believe, by that time.22·

·But I'm certain we had done some storage as Tongue23·

·River Reservoir had done some storage, so...24·

· · ·· Q.· ·And I think we agreed that the reference in25·



Page 5305

·the 2004 report, when it was referring to your·1·

·response, you'd used the word "call" there was no·2·

·reference, however, to the fact that there had been a·3·

·separate letter.··It could have been simply a·4·

·discussion at that meeting; correct?·5·

· · ·· A.· ·The -- I think it was referring to the·6·

·earlier part of that sentence, where it said Montana·7·

·specifically requested, which, in my view, was the·8·

·letter.·9·

· · ·· Q.· ·Without actually mentioning the May 18th,10·

·2004, call letter; correct?11·

· · ·· A.· ·Well, the minutes are a little bit cryptic in12·

·that fashion.13·

· · ·· Q.· ·And, in fact, that statement itself was only14·

·in there because Montana had specifically requested15·

·that it be put in there; isn't that right?16·

· · ·· A.· ·I don't know that they made that specific17·

·request.··However it got in there, we certainly didn't18·

·take it out.··But how it got inserted, I just don't19·

·recall.··It was under Mr. Stults' discussion, so I20·

·imagine it was in there as a result of what he relayed21·

·at the meeting.22·

· · ·· Q.· ·So it's pretty hard to ferret out exactly23·

·what happened but because we have our other exhibits we24·

·can be sure.··But just from the record of the Compact25·



Page 5306

·meeting it's not terribly clear, is it?·1·

· · ·· A.· ·Well, it says Wyoming indicated that this·2·

·call, so we do call it a call.··There's no bold heading·3·

·to this paragraph, I would agree.··But it's in there.·4·

· · ·· Q.· ·This exhibit under different designations,·5·

·but I believe there's been testimony -- I can't recall·6·

·if you testified to it -- but to M161.·7·

· · · · · · MR. DRAPER:··If I may approach the witness·8·

·and give him a copy, Your Honor.·9·

· · · · · · SPECIAL MASTER:··You may.10·

· · · · · · MR. DRAPER:··And we'll put it up on the11·

·screen as well.12·

· · · · · · SPECIAL MASTER:··And I do not believe the13·

·witness has seen this particular exhibit, at least on14·

·the stand.15·

· · · · · · MR. BROWN:··I believe he has, Your Honor.16·

· · · · · · SPECIAL MASTER:··Hum?17·

· · · · · · MR. BROWN:··I believe he testified to that18·

·document on direct.19·

· · · · · · SPECIAL MASTER:··This morning?20·

· · · · · · MR. BROWN:··(Nods head.)21·

· · · · · · SPECIAL MASTER:··Was it two pages this22·

·morning?23·

· · · · · · MR. BROWN:··It was.24·

· · · · · · SPECIAL MASTER:··Okay.··I just have a25·



Page 5307

·different version of it.··Okay.·1·


· · ·· Q.· ·Looking at Exhibit M161, do you see,·3·

·Mr. Tyrrell, that this is an e-mail with an attachment,·4·

·e-mail was from Mr. Stults and went to various people,·5·

·including you.··And attached, what has a Wyoming Bates·6·

·number of WY028558, which are Montana's comments on·7·

·draft minutes from the December 6th, 2004, Yellowstone·8·

·River Compact Commission meeting.··Do you see that?·9·

· · ·· A.· ·I do.10·

· · ·· Q.· ·And the first change asks that this following11·

·language be added:··"Montana specifically requested12·

·that Wyoming release post-1950 stored water so that13·

·pre-1950 users in Montana could satisfy their water14·

·rights.··Wyoming indicated that this call could not be15·

·heeded."16·

· · · · · · That's what it says here in the document,17·

·doesn't it?18·

· · ·· A.· ·Yes.··You've refreshed me.··Thank you.··I do19·

·see where this was added in by Mr. Stults.··Thank you.20·

· · ·· Q.· ·So without this language, even the reference21·

·to the call would not have appeared in the minutes;22·


· · ·· A.· ·That -- you're asking me to speculate.24·

·Certainly it did get in as a result of this.··But25·



Page 5308

·whether it would have never made it in absent this, I·1·

·don't know what would have happened in that absence.·2·

·But certainly it got in this way.·3·

· · ·· Q.· ·And looking still at the report itself, the·4·

·2004 report, that's Exhibit J54, we can see in the·5·

·second to last paragraph that Mr. Whitaker confirmed·6·

·that there was no regulation on the main stem of the·7·

·Tongue River; correct?·8·

· · ·· A.· ·Which page are you on again?·9·

· · ·· Q.· ·This is page Roman VIII.10·

· · ·· A.· ·Roman.11·

· · ·· Q.· ·Roman VIII in the lower right-hand corner.12·

·It's got a Bates No. Wyoming 016207.··It's the same13·

·page we were looking at earlier.14·

· · ·· A.· ·I do see that in the next to the last15·

·paragraph.16·

· · ·· Q.· ·Where it says in the middle of that17·

·paragraph, "However, Wyoming did not receive a valid18·

·call for regulation from a Wyoming appropriator on the19·

·main stem Tongue River, and, therefore, no one has been20·

·administering the Tongue River."··Right?21·

· · ·· A.· ·I see that, yes.22·

· · ·· Q.· ·And that's still the case, isn't it?··That23·

·there's essentially no regulation on the main stem24·

·Tongue River, at least of the lower main stem?25·



Page 5309

· · ·· A.· ·I don't know.··I do know that in 2006 there·1·

·was, without a call, we did some regulation on the main·2·

·stem of the Tongue above Ranchester.··I haven't -- and·3·

·the measuring devices have since gone in.··I don't·4·

·know, absent talking to Mr. LoGuidice, what happened in·5·

·'07, '8, '9, '10 for example.··But I would agree it·6·

·says here, and was probably correct, that we did not·7·

·regulate the main stem of the Tongue in '04.·8·

· · ·· Q.· ·There was another call in 2006, which we find·9·

·in Joint Exhibit 68; correct?10·

· · · · · · And if you need a copy of that, I'm sure I've11·

·got one somewhere up here.12·

· · ·· A.· ·You know, I know I have it.··It's just a13·

·matter of finding it.14·

· · ·· Q.· ·Let's see who can find it first here.15·

· · ·· A.· ·I believe I have it.··July 28th of '06?16·

·Joint 68?17·

· · ·· Q.· ·Yes.18·

· · ·· A.· ·I have it.19·

· · ·· Q.· ·And like the last letter it has a subject20·

·clause call for water under Yellowstone River Compact?21·

· · ·· A.· ·I'm not comparing it to the earlier one, so22·

·I'll take your word for that.23·

· · · · · · SPECIAL MASTER:··Are you looking at the right24·

·exhibit?25·



Page 5310

· · · · · · THE WITNESS:··J68?·1·

· · · · · · SPECIAL MASTER:··Yeah, that's right.·2·

· · · · · · THE WITNESS:··But I see that line at the top·3·

·of the letter.·4·


· · ·· Q.· ·And turning to page 2 of that letter, the·6·

·first full paragraph starts with the sentence, "Wyoming·7·

·is required by the Compact to regulate its post-1950·8·

·uses on the Tongue, including uses on the main stem,·9·

·until Montana's pre-1950 uses are satisfied."10·

· · ·· A.· ·I see that.11·

· · ·· Q.· ·Did you agree with that statement at the12·

·time?13·

· · ·· A.· ·I did not.··That was a statement made by14·

·Montana.··And, again, it harkens back to my original15·

·view of the call under this Compact as since correct.16·

· · ·· Q.· ·And your original view of the Compact with17·

·respect to the lack of protection to pre-1950 rights in18·

·Montana, that was not a position that you had invented.19·

·That was -- you had adopted the standing Wyoming20·

·interpretation, when you became State Engineer;21·

·correct?22·

· · ·· A.· ·I think that certainly something similar23·

·had -- I'd seen in earlier documents.··It was this24·

·notion that the pre-'50 rights were not regulated25·



Page 5311

·amongst and that the post-'50s were dealt with under V,·1·

·B and C.··I saw no other way to treat the post-'50s in·2·

·the document, in the Compact.·3·

· · ·· Q.· ·At the bottom of that page, you can see at·4·

·the beginning of the first paragraph a statement by·5·

·Mr. Stults that starts out "Although this letter is not·6·

·required by the Compact."·7·

· · · · · · Did you agree with that notion at that time?·8·

· · ·· A.· ·I think that was a statement put in the·9·

·letter, I'm certain, by the author of the letter that10·

·was stating a position.··That they believed the letter11·

·was not required.··To me, in this context, sovereign to12·

·sovereign dealing with regulation that had never been13·

·done on an interstate stream of this nature, I felt a14·

·letter was required.··So I did disagree with that15·

·supposition that came in that first line.16·

· · ·· Q.· ·But if we turn to your responsive letter,17·

·which is Joint 69 -- is that one that you have handy?18·

· · ·· A.· ·I do have it.19·

· · ·· Q.· ·This is the -- your letter of August 9th,20·

·2006, in response.··On page 2 of that letter, in the21·

·middle, you start a paragraph with a similar statement.22·

·"As the Compact makes no provision for the 'call' your23·

·letter suggests," and then you continue.24·

· · · · · · But it was your position at that time that a25·



Page 5312

·call was not authorized or allowed by the Compact;·1·

·isn't that right?·2·

· · ·· A.· ·I think that's fair for the reasons I've·3·

·stated.·4·

· · ·· Q.· ·And since the filing of this litigation, you·5·

·have now taken the position that not only is it·6·

·allowed, it's required; is that right?·7·

· · ·· A.· ·What is allowed or required?·8·

· · ·· Q.· ·A call.·9·

· · ·· A.· ·I believe that we now have the interim10·

·report.··And I'll say it again, that we took no11·

·exception to, that I have an obligation now under the12·

·doctrine of appropriation to regulate post-'50 uses in13·

·Wyoming for valid pre-'50 shortages in Montana.14·

· · · · · · I believe that that ought to come to me in15·

·the form of a written call.16·

· · ·· Q.· ·Now, calls in Wyoming, I think you heard17·

·testimony as well that those are not required to be in18·

·writing, are they?19·

· · ·· A.· ·We've had instances where the guys in20·

·Division II have regulated without a written call.21·

· · ·· Q.· ·And they routinely do so, don't they?22·

· · ·· A.· ·They are quite familiar with their streams.23·

·And they have done that in the past, that's right.24·

·They may still do it.25·



Page 5313

· · ·· Q.· ·But I think it's also your position that if·1·

·you're talking about a call, not between individuals·2·

·but between sovereigns, that that may be a different·3·

·item.·4·

· · ·· A.· ·I think it's a different animal entirely.·5·

·But let me offer this:··I think, as we talked earlier·6·

·about what's the value of the Commission?··And one of·7·

·the things we talked about was developing procedures.·8·

·Absent those procedures, I think a written call is·9·

·required.··If we negotiate, as parties, and come up10·

·with processes that are a surrogate for the written11·

·call that we can both agree to, then that might cure12·

·that issue.··But until we do, I think it's a written13·

·call.14·

· · ·· Q.· ·Now, the Compact makes no provision for a15·

·written call, does it?16·

· · ·· A.· ·It does not.··The law of the case has talked17·

·about the obligation to curtail for a pre-'50 need in18·

·bona fide in Montana for post-'50 uses in Wyoming.··And19·

·I think that, to make that operative, I would need a20·

·written call.21·

· · ·· Q.· ·But you do agree that there is no express22·

·guidance in the Compact when you're going to take a23·

·procedure that we're familiar with between individuals24·

·under the prior appropriation system?25·



Page 5314

· · ·· A.· ·I'm confused at that -- ask that again,·1·

·please.·2·

· · ·· Q.· ·You do agree, don't you, that there is no·3·

·guidance in the Compact, express guidance, as to how to·4·

·transfer this notion of a call which has always been·5·

·the context of individual water rights to a sovereign·6·

·to sovereign communication; isn't that right?·7·

· · ·· A.· ·I think that's correct.··Although, I also·8·

·don't know that the action we're in right now may not·9·

·provide that guidance.10·

· · ·· Q.· ·And, in fact, just because water rights are11·

·quantified pursuant to the prior appropriation12·

·doctrine, doesn't even necessarily mean that the prior13·

·appropriation doctrine itself would then be applied to14·

·sovereigns to make them subject to the rules, the15·

·specific rules that are applicable to individuals under16·

·that doctrine?17·

· · · · · · MR. BROWN:··I'm going to object to that18·

·question.··Calling for a legal conclusion mostly.19·

· · · · · · SPECIAL MASTER:··I think at this particular20·

·point, we've probably gotten into a set of questions21·

·that specifically concerns the interpretation of the22·

·Compact itself and probably goes beyond this particular23·

·witness's expertise.24·

· · · · · · I'm also thinking this might be a good time25·



Page 5315

·for the second of the afternoon breaks.·1·

· · · · · · Mr. Draper, do you have any idea how much·2·

·longer your cross is likely to go?·3·

· · · · · · MR. DRAPER:··I'm hoping to be done before the·4·

·end of the afternoon.·5·

· · · · · · SPECIAL MASTER:··Okay.··That would be great.·6·

· · · · · · I'm wondering, just to speed things up.·7·

·Number one, to the degree you know you're going to be·8·

·giving the witness some exhibits, maybe during the·9·

·break we could take a little bit of time to make sure10·

·the witness has those so we don't have to sort of11·

·search back and forth.··So I'd love it if we could use12·

·this break to make sure the cross went a little bit13·

·faster than it's gone so far.14·

· · · · · · MR. BROWN:··Your Honor, I would like to15·

·mention, Mr. Tyrrell has a pretty hard meeting next16·

·Monday.··So if we could get him wrapped up, that would17·

·be wonderful.18·

· · · · · · SPECIAL MASTER:··I have some questions, too.19·

·That's why I'm worried.··That's why I'm hoping we could20·

·speed things up a bit.21·

· · · · · · MR. DRAPER:··Very good, Your Honor.22·

· · · · · · SPECIAL MASTER:··Okay.··Great.23·

· · · · · · · · · · · (Recess taken 3:33 to 3:4624·

· · · · · · · · · · · p.m., November 26, 2013)25·



Page 5316

· · · · · · SPECIAL MASTER:··Okay.··Then let's go back on·1·

·the record at this stage.·2·

· · · · · · And, Mr. Draper, you can continue your cross.·3·

· · · · · · MR. DRAPER:··Thank you, Your Honor.·4·


· · ·· Q.· ·Mr. Tyrrell, in the instance of the second·6·

·call letter year which was 2006, and we've seen various·7·

·exhibits on that, at that time, Wyoming continued to·8·

·leave the main stem of the Tongue River, at least that·9·

·section below Ranchester, unregulated; isn't that10·

·right?11·

· · ·· A.· ·I believe that's correct.12·

· · ·· Q.· ·And there's -- there are post-1950 rights in13·

·that reach of the river, aren't there?14·

· · ·· A.· ·I understand that there are.15·

· · ·· Q.· ·And they're allowed to divert freely, aren't16·

·they?17·

· · ·· A.· ·To the extent that water is at their headgate18·

·or their pump point, whatever they have.··If they had19·

·not been regulated off, they could divert to their20·

·capacity if the water is there.21·

· · ·· Q.· ·And up to the time when there is regulation22·

·on other parts the Tongue system, rights, including23·

·post-1950 rights, are free to divert, aren't they?24·

· · ·· A.· ·They are.25·



Page 5317

· · ·· Q.· ·And that's even if pre-1950 rights are short·1·

·downstream in Montana?·2·

· · ·· A.· ·That would be the case.··If there was no call·3·

·in Wyoming, we would not be regulating in Wyoming.·4·

· · ·· Q.· ·So they would be able to divert not just 1·5·

·CFS per 70 but two CFS per 70; isn't that right?·6·

· · ·· A.· ·You're talking any rights, pre and post?··The·7·

·pre-1945 rights, to the extent they're irrigation·8·

·rights, can divert a double appropriation.··At times of·9·

·high runoff, they can divert more than that.10·

· · ·· Q.· ·And in that early period in the spring, when11·

·there is more water available, those rights and even12·

·rights after 1945 can divert the 2 CFS per 70; isn't13·

·that right?14·

· · ·· A.· ·They could.··They can divert such amounts of15·

·water as they can put to beneficial use.··They are not16·

·limited to 1 or 2 CFS per 70.··They can't waste the17·

·water, however.18·

· · ·· Q.· ·Now, you've said that a call is required;19·

·that it needs to be in writing.··Are there specific20·

·words that you require in order to honor a call?21·

· · ·· A.· ·I don't know about specific words as much as22·

·specific concepts.··I think we talked a little bit23·

·about that in my direct with Mr. Brown.··Things to24·

·establish the need of the calling right, identify it as25·



Page 5318

·pre-Compact, how short it is, and that it would take·1·

·the water if it got there, and that Montana had·2·

·regulated its post-'50 rights and had commissioners out·3·

·doing that.··I think it would also be important in that·4·

·process to protect us both probably that we had a·5·

·mechanism by which we could verify and review that that·6·

·use was being made.··And conversely, that I was doing·7·

·my job.·8·

· · ·· Q.· ·Do you require, as part of your willingness·9·

·to honor a call, that it be demonstrated that there is10·

·a contemporaneous actual need at the time of the call?11·

· · ·· A.· ·I think that's an important attribute, yes.12·

· · ·· Q.· ·And how often does that need to be verified?13·

·Is that an hourly thing or a daily thing?··How often14·

·are you saying that needs to be met?15·

· · ·· A.· ·I think that it is, once established, I don't16·

·think it is -- you know, you could make it as17·

·complicated as you want.··But if there is a need, for18·

·example, T & Y is truly short and they remain short19·

·even after I've regulated, I don't know that that has20·

·to be refreshed minutely or hourly.··But it would21·

·certainly be something we would review periodically.22·

· · · · · · When I talk about the ability to verify and23·

·correct, it might be for reasons such as, what if the24·

·flow at the T & Y Diversion Dam or the Miles City gauge25·



Page 5319

·all of a sudden went way up?··When I'm still regulating·1·

·people off, when, for example, there is now sufficient·2·

·water or more sufficient water at the lower end of the·3·

·river, I think that I would also get the opportunity to·4·

·turn people back on if there is a storm or some change·5·

·in operations that is now made -- the initial reason·6·

·for the call moot.·7·

· · ·· Q.· ·So if there is a, say, a rainstorm·8·

·downstream, you would say, well, if there's a rainstorm·9·

·down near the T & Y headgate, that that should modify10·

·your obligation?11·

· · ·· A.· ·I think it very well could.··Let me give an12·

·example.··We do this kind of correction on the North13·

·Platte.··For example, if we get a rain spike in the14·

·lower river and it results in more water in the river15·

·than we had anticipated in our daily management, that16·

·we can correct for diversions made or not made under17·

·that scenario a day later.18·

· · · · · · So it's a solvable type of problem.··It's19·

·just a different river basin we'd have to figure out20·

·the solution for.21·

· · ·· Q.· ·Now, in this day and age, there is freely22·

·available flow information, USGS gauge measurements,23·

·isn't it reasonable for you or your irrigators to24·

·apprise themselves of any flow information they may be25·



Page 5320

·interested in and use that to verify any call that·1·

·might be made?·2·

· · ·· A.· ·I'm sure we would use that data as much as it·3·

·was available.··I think the question is, are we·4·

·verifying that the water that's going down is being·5·

·diverted into the calling party's headgate, for·6·

·example.··And if Montana -- I think it's best that·7·

·Montana or the operators, some information come out of·8·

·Montana on that, rather than me sending my guys into·9·

·Montana, simply from maintaining just the clean10·

·relationship standpoint.11·

· · · · · · But, again, it's really just the making sure12·

·that if we're -- the bottom line is, if I have13·

·regulated folks off, that that is truly going to be a14·

·benefit to the calling party in Montana.··And we have15·

·to ferret out a way to just get that information16·

·exchanged.··It's a doable thing.17·

· · ·· Q.· ·Now, that's a much tighter rein that you're18·

·proposing than you do in terms of your current19·

·regulation of the Tongue River Basin; isn't that right?20·

· · ·· A.· ·Current, I think you may be correct.21·

·Understand that if under the law of the case that we22·

·would be, as the commitment I made earlier, we'd be23·

·regulating off our post-'50s for a valid pre-'50 call24·

·in Montana.··And I would have to be willing to share25·



Page 5321

·the fact that those are off with Montana if they asked.·1·

· · · · · · SPECIAL MASTER:··Can we pause here for a·2·

·second?·3·

· · · · · · MR. DRAPER:··Yes.·4·

· · · · · · SPECIAL MASTER:··Okay.··Let's go off the·5·

·record.·6·

· · · · · · · · · · · (Discussion held off the·7·

· · · · · · · · · · · record.)·8·

· · · · · · MR. DRAPER:··You ready?·9·

· · · · · · SPECIAL MASTER:··Yes, let's go back on the10·

·record.11·

· · · · · · MR. DRAPER:··Very good.12·


· · ·· Q.· ·Now, with -- thinking about contemporaneous14·

·demand and so on, are you making that a requirement of15·

·your cooperation with respect to the Tongue River16·

·Reservoir, if it's not full that something needs to be17·

·shown in terms of contemporaneous demand for it?18·

· · ·· A.· ·I think the Tongue River Reservoir is a19·

·little bit different animal because, again, as I20·

·expressed to Mr. Brown, I don't know what being full21·

·means for the Tongue River Reservoir, given the range22·

·of numbers we've seen.··And I think that's an important23·

·thing to answer in this process.24·

· · · · · · So -- and the only analogy that I can provide25·



Page 5322

·is the North Platte which is if the state of Wyoming,·1·

·Nebraska, and the Bureau hadn't agreed on the closed·2·

·gates and what a true shortage means, in other words,·3·

·on what constitutes the call, then there may not have·4·

·been a call provided for in those documents.·5·

· · · · · · And I think that if Montana would like·6·

·Wyoming to respond to a call for Tongue River·7·

·Reservoir, then I think it's incumbent that we address·8·

·what the criteria are when saying you're short·9·

·collectively.··So that we have an agreement on short10·

·compared to what?··Compared to what demand?··What are11·

·legitimate bypasses and what are operational?12·

· · · · · · And one of those are arrived at -- and I want13·

·to differentiate between, say, water right instrument14·

·related bypasses versus discretionary operational or15·

·bypasses that are a matter of choice and may vary from16·

·month to month or week to week.··I think it's only fair17·

·to say going into a winter, that given this amount, if18·

·you're going to bypass some water, up to this point is19·

·acceptable and anything above that is counted as though20·

·it could have been stored.21·

· · · · · · Otherwise, our meeting a full Tongue River22·

·Reservoir is constantly a moving target.··And that's23·

·one thing that they got rid of in the North Platte was24·

·there is no moving target.··We know exactly what a full25·



Page 5323

·North Platte account is, what a full Pathfinder·1·

·Reservoir is, what full Inland Lake is.··So that's the·2·

·kind of uncertainty I'd like to get rid of in the call·3·

·flows.··But without that certainty, it leaves us·4·

·blowing in the wind.·5·

· · ·· Q.· ·Now, a call isn't always required in Wyoming;·6·

·isn't that right?·7·

· · ·· A.· ·Meaning?·8·

· · ·· Q.· ·Well, I'm thinking of the Wind River system·9·

·where there's rarely, if ever, a call.··And yet water10·

·rights are administered in priority?11·

· · ·· A.· ·I'm sorry.··Say that -- was this from some12·

·other testimony I was not here for?··I'm trying to13·

·figure out what exactly you are referring to.14·

· · ·· Q.· ·Well, if you know, the -- on the Wind River15·

·there's rarely a call, if ever; isn't that right?16·

· · ·· A.· ·It's been infrequent, yes, or rare, yes.17·

· · ·· Q.· ·And yet the Bureau of Reclamation reservoirs18·

·are required by your division to pass certain waters to19·

·senior water rights even without a call; isn't that20·

·right?21·

· · ·· A.· ·Yeah, they pass that water through below22·

·Boysen, for example, to senior rights in the Worland23·

·area.24·

· · ·· Q.· ·And just to finish off our discussion on the25·



Page 5324

·regulation of post-1950 rights, you, I think, referred·1·

·in your direct testimony to the rapid decline inflows·2·

·that occurs typically in the spring and certainly·3·

·occurs on the Tongue River; isn't that right?·4·

· · ·· A.· ·I think I was mentioning that in the context·5·

·of we rarely see regulation at 2 CFS per 70, the use of·6·

·the surplus water law because that window so rare·7·

·through there.··You go from free river basically to 1·8·

·and you just wave at 2 per 70 on the way by.··We don't·9·

·have enough water in the system consistently to fully10·

·give everybody their 2 per 70 consistently.11·

· · ·· Q.· ·And that's basically what we have here on the12·

·Tongue River, that we have enough water for everybody13·

·early in the spring.··But then it falls off very14·

·rapidly, and only the most senior rights in Montana are15·

·even to have a partial supply; isn't that right?16·

· · ·· A.· ·Well, I would just add to that that only the17·

·most senior rights in Wyoming at that point would have18·

·a partial supply as well.··It's dropping off pretty19·

·fast.20·

· · ·· Q.· ·Okay.··Except under current conditions,21·

·post-'50 rights that aren't regulated, they get their22·

·water under those conditions right now?23·

· · ·· A.· ·Only those few that might be below a calling24·

·party.··And as you mentioned to the extent that may25·



Page 5325

·exist, it's on maybe the lower Tongue.··But tributaries·1·

·are regulated.··Big Goose, Little Goose, Little Tongue,·2·

·Wolf Creek, Soldier Creek.··I can't envision where any·3·

·post-'50s are on in those.·4·

· · ·· Q.· ·And certainly the post-'50s are able to take·5·

·water before regulation goes in on the tributaries of·6·

·the Tongue River; isn't that right?·7·

· · ·· A.· ·That would be correct.·8·

· · ·· Q.· ·Even if pre-1950 rights in Montana are at·9·

·that time short?10·

· · ·· A.· ·Understand that under the revised law of the11·

·river, if you want to call it the law of this case,12·

·that moving forward, post-'50s in Wyoming under the13·

·provisions I talked about earlier should be curtailed14·

·if there's a valid pre-'50 shortage in Montana.··So to15·

·say it's going to continue the way it did operate, I16·

·don't think is correct.17·

· · ·· Q.· ·Now, you mentioned the concept of futile18·

·call.··That a call by Montana against Wyoming might be19·

·ignored because it's considered to be a futile call.20·

·What do you mean by that?21·

· · ·· A.· ·It's the concept in western water law where22·

·if I turn off a junior and none of that activity23·

·benefits the senior at all, then I am robbing him of24·

·his right, and I shouldn't turn him off.··So is there a25·



Page 5326

·test for futility in this process?··I think there·1·

·should be.··Because while we have accepted the decision·2·

·that I will be regulating post-'50s our pre-'50s in·3·

·Montana, under the doctrine of appropriation, that·4·

·doctrine seems to me if there's a test that turning·5·

·those people off doesn't put a molecule of extra water·6·

·at the state line or into Tongue River Reservoir or at·7·

·the T & Y, that it would work an injury against that·8·

·pretty to have turned him off.·9·

· · · · · · So I'm not saying everything would10·

·automatically be futile.··I'm saying there has to be11·

·some consideration of that so that we know it isn't --12·

·we know our activities aren't futile.13·

· · ·· Q.· ·But there's no place for a futile call where14·

·you have a live stream, is there?15·

· · ·· A.· ·I would say that typically you're correct in16·

·that where we found futile calls in the past, it's been17·

·because water denied a junior is totally lost on its18·

·way to the senior.19·

· · ·· Q.· ·A dry stretch of the river, for instance?20·

· · ·· A.· ·Correct.21·

· · ·· Q.· ·And that's not the case here, is it?22·

· · ·· A.· ·We don't typically have a dry river here,23·

·correct.24·

· · ·· Q.· ·You're not aware of the river going dry, are25·



Page 5327

·you?·1·

· · ·· A.· ·I can't recall it going dry, correct.·2·

· · ·· Q.· ·So your notion of a futile call, given that·3·

·knowledge, to your knowledge has never,gone dry, what·4·

·is your position on our need to satisfy the requirement·5·

·of it not being a futile call?·6·

· · ·· A.· ·It might be as much as looking at defining·7·

·for sure that gaining losing characteristics of the·8·

·river -- I know we've had testimony on both sides of·9·

·that.··I just think it's a fair consideration that we10·

·make sure, if I'm going to regulating somebody off that11·

·that water has a beneficial use to the calling party.12·

·If that's a activity we do early on and put it to bed,13·

·then so be it.··But it's an analysis, I think that's14·

·fair to do.15·

· · ·· Q.· ·But just because a stream is gaining or16·

·losing, that doesn't tell you that a call would be17·

·futile, does it?18·

· · ·· A.· ·I would be interested in knowing of the --19·

·well, if you were to turn off 5 CFS of rights in20·

·Wyoming at Dayton, the opportunity for 5 CFS to show up21·

·at T & Y.··I'm not saying that we wouldn't regulate if22·

·2 showed up.··I think we probably see a lot of that.··I23·

·think we still would.24·

· · · · · · But to put to bed any future argument over25·



Page 5328

·futility, I think it's worth looking into.··I just·1·

·think that's a concept we ought to evaluate and put to·2·

·bed if we can.·3·

· · ·· Q.· ·So it's your position, even though we've a·4·

·live stream all the way through, that the Special·5·

·Master should consider this question of a futile call·6·

·as being a way of denying Montana its water?·7·

· · · · · · MR. BROWN:··Objection.··Asked and answered·8·

·several times.·9·

· · · · · · SPECIAL MASTER:··Well, and in addition to10·

·that, I guess I'm somewhat concerned at this point,11·

·that you're asking the witness actually what the legal12·

·position is for the state of Wyoming.··And I'm a little13·

·bit concerned as to whether or not he has the authority14·

·to actually state that.··Does he --15·

· · · · · · MR. BROWN:··I object on that ground as well.16·

· · · · · · SPECIAL MASTER:··Okay.··Thank you.··So I'll17·

·sustain that particular objection.18·


· · ·· Q.· ·And you're aware of the travel times to, say,20·

·the T & Y, aren't you, on this river?21·

· · ·· A.· ·I believe I heard them certainly on the tour22·

·this summer, yes.··Several days.23·

· · ·· Q.· ·And when you have travel time at seven days24·

·from the state line, how would that fit into your25·



Page 5329

·contemporaneous demand position?·1·

· · ·· A.· ·Well, in its details it could be worked on.·2·

·But I know that we have several travel days up and down·3·

·the North Platte system.··And we found it to be a·4·

·problem that's tractable.··We can deal with it.··I do·5·

·think that the contemporaneous demand question does·6·

·involve some consideration of travel time.··But I also·7·

·think that the call has to be when the right is short·8·

·not prospectively.··Again, travel times are something·9·

·that other agreements have dealt with.··And I'm sure we10·

·could deal with it here.11·

· · ·· Q.· ·I'm going to hand you what we've marked as12·

·Exhibit M411.13·

· · · · · · Mr. Tyrrell, this is a six-page document that14·

·was provided to us during discovery.··The form of15·

·letter regarding potential interference due to coalbed16·

·methane activity and request for assistance with a17·

·certain well, the Kayser No. 1 well, and indicated to18·

·be signed by Lisa Lindemann, Administrator of the19·

·Groundwater Division.20·

· · · · · · Do you recognize this type of document?21·

· · ·· A.· ·I believe so.··Yeah, I do recognize this type22·

·of document.23·

· · ·· Q.· ·Is this the kind of document that can be24·

·produced by the Groundwater Division of your office?25·



Page 5330

· · ·· A.· ·It appears to be.·1·

· · ·· Q.· ·And would these kinds of documents be kept in·2·

·the normal course of business in our office?··I presume·3·

·so.·4·

· · · · · · MR. DRAPER:··Your Honor, I'd move the·5·

·admission of Exhibit M411.·6·

· · · · · · MR. BROWN:··No objection.·7·

· · · · · · SPECIAL MASTER:··Okay.··Then Exhibit M411 is·8·

·admitted.·9·



· · ·· Q.· ·Do you recognize the subject matter of this12·

·form of letter?13·

· · ·· A.· ·I do.14·

· · ·· Q.· ·What is it?15·

· · ·· A.· ·It was a response to an interference16·

·complaint to a Mr. Joseph Kayser.17·

· · ·· Q.· ·And is this the type of activity that your18·

·Groundwater Division can routinely undertake?19·

· · ·· A.· ·We -- when you say routinely, I would say20·

·that over the -- those are related to coalbed methane21·

·activity.··I think this was 1 of, as I mentioned22·

·earlier, maybe 60 that we dealt with over that time --23·

·well, since the early 2000s.24·

· · ·· Q.· ·This would be an example of 1 of those 6025·



Page 5331

·complaints that you mentioned?·1·

· · ·· A.· ·It's apparently one that was pulled out of·2·

·the group.··It's a relatively recent one being only·3·

·2010, so just three years ago.·4·

· · ·· Q.· ·Right.··And this is a -- this represents a·5·

·procedure by which water right owners can be protected·6·

·from the effects of coalbed methane pumping?·7·

· · ·· A.· ·It is an avenue that they can use to file a·8·

·complaint if they have one, or a grievance.··It's·9·

·called an interference complaint.··Could have been a10·

·coalbed natural gas well, it could have been an11·

·irrigation well.··But it is an avenue they have under12·

·statute.13·

· · ·· Q.· ·And this allows protection to be afforded14·

·according to the terms of the statute quoted here to15·

·either surface or groundwater rights?16·

· · ·· A.· ·I believe that's correct.··I'm looking for17·

·that language.··But I see where the -- what appears to18·

·be the entire statute 41-3-911 and 933 are presented19·

·here.20·

· · · · · · SPECIAL MASTER:··So if I could just intervene21·

·here for a second.··I'm perfectly fine with Mr. Draper22·

·using this document to ask the witness generally about23·

·the type of procedure that's followed.··But I wanted to24·

·note that, number one, it's not clear the letter was25·



Page 5332

·signed -- the CC at the end is blank.··And there looked·1·

·like some paragraphs that have not been completed.··So,·2·

·for example, on pages 4 and 5, page 4 it says "Huber's·3·

·08, 09, and 10 reports."··And there's an ellipses.··And·4·

·there's something similar on "Fidelity's '05 and·5·

·'06 reports" ellipses on page 5.··So this looks like it·6·

·probably is not a completed letter.··And I just wanted·7·

·to make sure that was clear on the record.·8·

· · · · · · But I think you can go ahead and ask·9·

·Mr. Tyrrell questions about sort of the general10·

·procedure followed and what the rights are.11·

· · · · · · MR. DRAPER:··Very good, Your Honor.··Thank12·

·you for making that clear.··And it is my purpose simply13·

·to use this exhibit to assist Mr. Tyrrell in describing14·

·the, in general terms, the activities that his office15·

·is authorized to undertake.16·


· · ·· Q.· ·And so, Mr. Tyrrell, it is possible for your18·

·office to assist through the means mentioned in this19·

·exhibit with the protection of surface water and20·

·groundwater rights in Wyoming?21·

· · ·· A.· ·It certainly allows us, through those22·

·statutes, to do the investigation and see if23·

·protections can be afforded, yes.··I would note it's24·

·also not on letterhead.··So that was one of my25·



Page 5333

·questions.·1·

· · ·· Q.· ·Right.··Also an indication it seems to be a·2·

·draft; correct?·3·

· · ·· A.· ·It does.·4·

· · ·· Q.· ·I'd like to turn your attention to another·5·

·subject at this point.··And that is that it is the·6·

·practice of your office to recognize enlargements of·7·

·reservoirs to restore capacity loss through·8·

·sedimentation, to allow them to restore their lost·9·

·space, enjoying the same original water right priority10·

·under state law; isn't that right?11·

· · ·· A.· ·I wouldn't say it's frequent.··The only one12·

·that comes to my mind at the moment is the Pathfinder13·

·Dam.··But it has happened, yes.14·

· · ·· Q.· ·Okay.··And in the case of the Pathfinder Dam,15·

·there was an enlargement and that enlargement was16·

·accorded the original priority of the dam?17·

· · ·· A.· ·It was allowed to recapture space under the18·

·original priority with those limitations on its ability19·

·to call from that priority, as I mentioned earlier.20·

· · ·· Q.· ·And there were certain limitations by21·

·agreement, but it was also able to otherwise exercise22·

·that original priority; isn't that right?23·

· · ·· A.· ·I think so.··When you say "otherwise24·

·exercise" it's a little vague.··But they are back to25·



Page 5334

·the million 70,000 acre-feet with those limitations on·1·

·the 54,000 that was enlarged or was called an·2·

·enlargement.··Because that was the nature of the -- it·3·

·was a change in use to add uses.··And the space, in·4·

·terms of operationally was, again, back to a million·5·

·70.··The 54,000 that was recovered was put to those two·6·

·purposes that I mentioned earlier: the Wyoming account·7·

·and the ESA account.·8·

· · ·· Q.· ·So it was put to those purposes, but it did·9·

·enjoy with the agreed exceptions you mentioned, the10·

·original priority?11·

· · ·· A.· ·I think that's generally the case, yes.12·

· · · · · · MR. DRAPER:··Your Honor, if I can have just a13·

·couple minutes, I think I may be close to being14·

·finished.15·

· · · · · · SPECIAL MASTER:··Okay.··That would be fine.16·

· · · · · · MR. DRAPER:··Thank you.··Your Honor, just a17·

·few more questions, if I may?18·

· · · · · · SPECIAL MASTER:··You may.19·


· · ·· Q.· ·Mr. Tyrrell, you testified concerning your21·

·regulation of groundwater and coalbed methane in22·

·particular.··Just to clarify, the exempt wells or -- I23·

·don't know if you use that particular term, but for the24·

·wells that are for domestic and stock purposes, less25·



Page 5335

·than 25 gallons per minute, you emphasize those must·1·

·receive a permit; correct?·2·

· · ·· A.· ·Yes.··We permit stock and domestic wells in·3·

·Wyoming.··Occasionally, we will run into those wells·4·

·that were constructed without benefit of a permit.·5·

·When we run into that situation, our first request is·6·

·that they get a permit filed or they don't have·7·

·protection under state law.·8·

· · · · · · For example, if a -- and it happens·9·

·occasionally.··But if we find one without a permit, we10·

·would ask them to get one because they would not get11·

·any -- we would not be able to respond under an12·

·interference complaint, for example.··If they don't13·

·have a permit on that well, they are out of luck with14·

·us.··They got to get the permit first.15·

· · ·· Q.· ·And you grant those permits automatically,16·

·don't you?17·

· · ·· A.· ·Pretty much.··The stock and domestic wells,18·

·in particular, we want to make sure our people and19·

·stock have water.20·

· · ·· Q.· ·And that's essentially true of your other21·

·groundwater permits, including CBM, unless there's an22·

·objection; isn't that right?23·

· · ·· A.· ·Our permitting process essentially says that24·

·unless there's no water in the source of supply, maybe25·



Page 5336

·a couple other reasons, but that they are to be granted·1·

·as a matter of course.·2·

· · ·· Q.· ·One follow-up question on your concept of·3·

·administration.··With all of the various things that·4·

·need to be proven and checked and analyzed, how do you·5·

·get that done in a timely fashion where you've got --·6·

·you've got water demands that are immediate, not next·7·

·year?··I noticed in one of the documents you submitted·8·

·today you said, well, we're not going to be able to·9·

·answer these questions until 2005, from 2004.10·

·Obviously, that is not a workable situation.··If you're11·

·doing all this kind of verification that you're12·

·testifying is necessary, how do you ever get timely13·

·regulation where it's justified?14·

· · ·· A.· ·Well, I wouldn't confuse the information15·

·requests that went between us as something that would16·

·happen every time.··A lot of those were one-time, you17·

·know, lists of adjudicated rights or maps of18·

·adjudicated acres that we simply didn't have at that19·

·time.··And it did look to me, and I remember those20·

·words, that we may not be able to respond with all21·

·these for several months.··But I don't want to equate22·

·that with the exact same thing that would have to23·

·happen before any future call was responded to.··That24·

·was once that information was exchanged, it would have25·



Page 5337

·been over and done with.·1·

· · · · · · I think that when you set up the procedures·2·

·by which I respond to a call, which has yet to be done·3·

·in the Tongue, and to the extent, say, it's been done·4·

·in the Bear or North Platte, then you would set those·5·

·procedures up to be relatively as contemporaneous as·6·

·possible.··And then you have no doubt how you respond·7·

·once they are in place.·8·

· · · · · · I would say that the daily accounting we do·9·

·on the North Platte right now, which we all seem to be10·

·working with, didn't get built overnight.··But we don't11·

·have to rebuild it every summer either.··Those12·

·procedures have evolved.··They are in place.··And right13·

·now they are working.··So that's the process this basin14·

·has yet to go through.··And once we get those15·

·procedures in place and agreed to, then I think it can16·

·be a relatively contemporaneous action.17·

· · ·· Q.· ·And you're saying it doesn't change.··I mean18·

·the status could change over a period of ten hours.19·

·For instance, you get information, Wyoming may say,20·

·well, it is ten hours old?··Or is it a day old, we21·

·can't live with that.··There may have been a rainstorm22·

·downstream.··How are you going to prove that to us23·

·Montana?24·

· · ·· A.· ·The way we've done that in the other basins,25·



Page 5338

·which is when you get something unexpected we have the·1·

·ability to go back and correct flows a day later or a·2·

·couple days later.··In the North Platte, it's generally·3·

·daily.··But it doesn't have to be daily on the Tongue;·4·

·it could be whatever we agree to.·5·

· · · · · · But the fluctuations in flows available to·6·

·either our folks or at inflow to Tongue River Reservoir·7·

·or T & Y are things that in this hydrologic environment·8·

·we understand are those unknowns that we have to have a·9·

·system to deal with.··And all I can say is we found10·

·ways to deal with those fluctuations and11·

·contemporaneous nature of the need to regulate in other12·

·basins.··I have no problems saying that these two13·

·states can find a way to make that happen here.··It's14·

·not going to happen overnight.··But is it doable?15·

·Sure.16·

· · ·· Q.· ·Is the situation mostly we've talked about17·

·the T & Y being at the low end of the system and it18·

·might experience a rainstorm.··But even if one right19·

·goes off, if you're down at the levels we see here20·

·after the spring runoff, you're far from satisfying all21·

·the pre-'50 rights in Montana.··That doesn't require22·

·detailed accounting, does it?23·

· · ·· A.· ·I feel like I'm in the weeds here.··But24·

·the -- if you're 100 CFS below the capacity of T & Y,25·



Page 5339

·and let's assume that we don't have any upsets in the·1·

·system, my post-'50s are probably off, and T & Y is·2·

·going to get what they get.··And unless something major·3·

·happens in there, which we can have procedures in place·4·

·to address, 5 inches of rain or a rain just in a·5·

·tributary in Montana, I think that there are ways that·6·

·we can resolve that.··I think both sides can work·7·

·together, again, on a set of procedures that recognize·8·

·the certain nature of parts of that job.··It's been·9·

·done in other basins, and that's...10·

· · ·· Q.· ·And you certainly there -- the states11·

·certainly tried that back in the 1980s, didn't they?12·

· · ·· A.· ·They tried it on paper, is my recollection.13·

·We had a couple battling proposals and neither one made14·

·it.··I -- but a lot of the personalities and approaches15·

·that were in the room at that time have been replaced16·

·and are different.··And I'm not willing to say that the17·

·group that both of us can bring to the table can't18·

·solve it today.19·

· · ·· Q.· ·But up to this time it's not been possible20·

·has it?21·

· · ·· A.· ·Right.··It hasn't happened up to yet, you are22·

·correct.23·

· · · · · · MR. DRAPER:··I think that concludes my24·

·questions for the moment, Your Honor.··Thank you.25·


PATRICK TYRRELL - November 26, 2013Examination by the Special Master

Page 5340


· · · · · · So, Mr. Brown, ask you very quickly if you·2·

·were to do a redirect right now, how long do you think·3·

·it would take you?·4·

· · · · · · MR. BROWN:··Four minutes.·5·

· · · · · · SPECIAL MASTER:··So I could have probably a·6·

·half hour, 15 minutes, and we could probably still be·7·

·finished today?·8·

· · · · · · MR. BROWN:··Absolutely.·9·

· · · · · · SPECIAL MASTER:··So let me see if I can10·

·quickly prioritize on the fly.11·

· · · · · · · · · · · · EXAMINATION12·

·BY SPECIAL MASTER:13·

· · ·· Q.· ·Let me take you all the way back to the very14·

·beginning this morning when we were talking about15·

·groundwater regulation in Wyoming and groundwater16·

·surface water interactions.··And so my understanding is17·

·that if a surface water user believes that a18·

·groundwater user is interfering with the surface water19·

·right, that the surface water user can then go to the20·

·State Engineer's Office and complain about that?21·

· · ·· A.· ·It can.22·

· · ·· Q.· ·And in order to file the compliant, do they23·

·have to give $100.24·

· · ·· A.· ·There are two routes.··Number one is the25·



Page 5341

·statutory complaint, the interference complaint which·1·

·is the $100 filing.··And that is supposed to pay for·2·

·our weeks of analysis, which it doesn't cover.··But we·3·

·do it anyway to the extent staff time gets on to it.·4·

·And we would look at the technical basis behind the·5·

·alleged interference: the permeability of the soils,·6·

·the conductivity.··We'll do an analysis to the extent·7·

·we can of does the pumping of this well take water from·8·

·the stream and on what time frame?·9·

· · · · · · We've done -- some of those, frankly, have10·

·taken years for us to finish because you take data.11·

·And you monitor groundwater data for -- the west bank12·

·of the Snake River we studied for 10 or 15 years before13·

·we issued our report.14·

· · · · · · But the other thing, and this, I think, may15·

·have been how we starred in the Horse Creek Basin is it16·

·started as a call for regulation.··And when we received17·

·the call, we didn't know how to respond because the18·

·commissioners didn't know if turning off the well would19·

·affect the creek.··And we went back to those folks and20·

·said, we think what would -- we think what the avenue21·

·here might be is an interference investigation where we22·

·can do the hydrogeologic study, and we did.··We hired23·

·an outside consultant.··And sometimes we have to do24·

·that to prepare a model, to determine whether or not25·



Page 5342

·the local groundwater is in hydraulic connection to the·1·

·stream, how close do the wells take water that are·2·

·ultimately destined to be surface water in the stream.·3·

· · · · · · And in that particular case, the answer came·4·

·back, yes, this is all connected.··And so at that·5·

·point, then we could not not regulate because we had·6·

·evidence of connection.··And in the statute it says·7·

·where the groundwater and surface water are so·8·

·interconnected as to, in fact, constitute one source of·9·

·supply, the groundwater rights can be regulated with10·

·the surface water priorities.11·

· · · · · · So that's the avenue.··And Bates Creek, it's12·

·a tighter basin.··So it becomes a regulatory approach.13·

·In Horse Creek, the delay factors of the wells relative14·

·to the creek are much longer.··On the order of years.15·

·So we ended up regulating the wells essentially by16·

·putting a cap on them.··A production cap.17·

· · ·· Q.· ·Right.··Understood.··And in determining18·

·whether or not the groundwater and surface water is one19·

·source of supply, you testified earlier that the20·

·statute doesn't provide you with a clear determination21·

·of what actually would meet that test.22·

· · · · · · Have you used any type of a standard test23·

·yourself?24·

· · ·· A.· ·We have the 28/40 test in the North Platte25·



Page 5343

·Basin outside of the triangle.··So we have that in the·1·

·North Platte for connectivity to the surface water·2·

·system.··I've not used those numbers specifically in·3·

·other basins.··What we've looked for is, I guess you·4·

·could call it, material effect.·5·

· · · · · · But there's not a written standard.··There's·6·

·not a rule or a statute.··In Colorado, I think·7·

·statewide, and I hope I'm not misspeaking, it's·8·

·one-tenth of 1 percent and 100 years.··I've not used·9·

·that strict of a number either.··But I think, for10·

·example, in Bates Creek, we had evidence that at least11·

·one well might start -- it's a cone of depression would12·

·hit the creek within a week.··And to me that was enough13·

·to say there was some effect on the streamflow.··So we14·

·started regulating on that basis.··We, again, were15·

·litigated, but we prevailed with that analysis.16·

· · · · · · I guess it's a mixed bag.··If I had numbers17·

·in statute, I would know exactly what the threshold is.18·

·On the other hand, without having the numbers it gives19·

·me some flexibility, enough flexibility to get sued, I20·

·guess.··So far we have not abused that flexibility.21·

· · ·· Q.· ·Right.··And in making your -- so I guess --22·

·so there have been -- I know you testified earlier23·

·there were not interference cases between surface water24·

·and groundwater production for CBM wells.··But you have25·



Page 5344

·dealt with interference cases between groundwater and·1·

·surface water users in other contexts?·2·

· · ·· A.· ·Yes.·3·

· · ·· Q.· ·And in making a determination as to whether·4·

·or not you're dealing with one source of supply in·5·

·those situations, you've looked at how long it takes to·6·

·have an impact?·7·

· · ·· A.· ·That is certainly a consideration.··And·8·

·because we're trying to protect the surface water·9·

·irrigator, for example, in the irrigation season, it's10·

·important to me to know whether those effects are11·

·immediate, you know, matter of days or weeks or if they12·

·are a matter of years in which case I have to look for13·

·different corrective control, which in the statutes, by14·

·the way, do allow for, such as the cap.15·

· · ·· Q.· ·And so where you've had a lengthy delay16·

·that's, again, where you use the cap that you've17·

·described earlier?18·

· · ·· A.· ·I have used the cap idea one time.··And that19·

·was this last summer in the Horse Creek case, the20·

·orders are on our website, I believe -- I hope they21·

·are.··And the only thing I would offer there is the22·

·parties that were affected by that order had two months23·

·to appeal it or, again, take Mr. Brown and I to court.24·

·And they did not.··I did not get an appeal of that25·



Page 5345

·order.··So right now it stands.·1·

· · ·· Q.· ·Okay.··And have you also, in making that·2·

·determination, looked to see -- let me just ask you:·3·

·So another factor you've looked at is what the impact·4·

·of pumping a certain amount of groundwater has had on·5·

·the surface water flow?·6·

· · ·· A.· ·Yeah.··That -- if I understand the question,·7·

·pumping a certain amount of water, the -- it might be·8·

·interesting to talk about the second appeal on Bates·9·

·Creek in that regard.··Just factually it might help.10·

· · · · · · I had -- actually had a water commissioner --11·

·we had a call for regulation from a senior surface12·

·right on -- we had a call from a senior surface water13·

·right, and part of that call meant that we were two --14·

·at least the two years prior to that, we had turned off15·

·groundwater users.··My water commissioner that16·

·particular year elected to allow two wells to stay on17·

·and continue to pump even though because there was18·

·water in the stream.··And the superintendent upheld19·

·that decision.20·

· · · · · · And I reversed it.··I said that because they21·

·are so interconnected as to be one source of supply,22·

·and because he allowed them to rotate, that was23·

·evidence to me that he suspected some effect on the24·

·streamflow.··My overturning of that decision was based25·



Page 5346

·on the fact that even some effect I couldn't tolerate·1·

·on the surface water stream.·2·

· · · · · · And these were wells that were pumping below·3·

·their adjudicated amounts and they were alternating·4·

·days or weeks.··And the court actually upheld my·5·

·overturning of my own staff in that case.·6·

· · ·· Q.· ·Okay.··Another thing that you mentioned this·7·

·morning was that you testified that you had never·8·

·authorized Wyoming commissioners to regulate water on·9·

·behalf of Montana.··What I did not fully understand was10·

·your explanation as to why.11·

· · ·· A.· ·It goes to the -- my threshold position at12·

·that time, that I didn't see the validity of the call13·

·in the first place.··And that even if we had some users14·

·on that I could understand today would be regulated,15·

·there had been flow out the mouth.··And since V, B and16·

·C were my only guidance for using our post-'50 water, I17·

·believe that some of that water was usable by Wyoming.18·

· · · · · · And so I didn't see the ability to allow my19·

·commissioners to regulate on behalf of that call for20·

·those two reasons.··And I've since been proven wrong on21·

·that particular point.22·

· · ·· Q.· ·Okay.··That clarifies that particular point.23·

· · · · · · If you could turn to J54, which is the 200424·

·annual report.25·



Page 5347

· · ·· A.· ·I have it.·1·

· · ·· Q.· ·Okay.··So I have just a couple questions on·2·

·page VIII.··So the first one is in the fifth paragraph.·3·

·And it's right before the sentences that you were·4·

·discussing with Mr. Draper.··And the sentence reads,·5·

·"Montana felt that water rights in both states senior·6·

·to 1950 should be filled before water rights junior to·7·

·1950 are filled."·8·

· · · · · · So do you remember that discussion?·9·

· · ·· A.· ·I don't actually.··And as I was looking at10·

·that earlier, it's a curious statement.··Because the11·

·call that we dealt with that summer was among battling12·

·pre-'50s.··And this is now more similar to the 200613·

·letter that we got where it's talking about, now we14·

·satisfy pre-Compact before post-Compact water.··So even15·

·as I was rereading that earlier today, that's more of a16·

·2006 theory than '04.17·

· · ·· Q.· ·In fact, one of the reasons I wanted to ask18·

·you about it is that there is differences, as you point19·

·out, in the language in the 2004 call letter and the20·

·language that's here.··And my question would be:··Do21·

·you recall at any point between that letter and the22·

·second of the Compact Commission meetings, the subject23·

·of post-1950 water rights in Wyoming coming up?24·

· · ·· A.· ·I don't.··There was a shift in there25·



Page 5348

·somewhere.··I don't recall when it occurred.··It struck·1·

·me that throughout the summer of 2004 that the position·2·

·was still -- at least that I was hearing from·3·

·Montana -- that we need to satisfy our pre-'50 seniors·4·

·and you regulate your pre-'50 juniors.··This statement·5·

·here, again, is more similar to the 2006, where it's·6·

·pre versus post.··And I'm not sure that we even·7·

·appreciated when it ended up in the minutes that --·8·

·that, what may be subtle or not so subtle difference in·9·

·the representation.10·

· · ·· Q.· ·And then if you go down two paragraphs from11·

·that one there's a sentence that begins, "Montana asked12·

·if Wyoming had appointed a water commissioner for the13·

·main stem of the Tongue River as requested at the14·

·June 2004 teleconference between Montana and Wyoming."15·

· · · · · · Do you remember, not the discussion of this16·

·at the meeting, but do you remember that request being17·

·made during the June 2004 teleconference?18·

· · ·· A.· ·It may have been made.··I don't recall it19·

·specifically.20·

· · · · · · I think it's a reflection of Montana at that21·

·time not fully understanding that we had commissioners22·

·all the time on the Tongue River.··They had not been23·

·actively responding to intrastate calls on the main24·

·stem.··But the commissioners were there, Bill Knapp and25·



Page 5349

·Pat Boyd essentially.·1·

· · ·· Q.· ·And do you recall why Montana requested that·2·

·a commissioner be appointed?·3·

· · ·· A.· ·I don't know because my response to that was·4·

·they're there.··They -- they have been appointed.··And·5·

·our commissioners in Wyoming are governor appointees.·6·

·The districts for Mr. Boyd, I believe, and Mr. Knapp·7·

·are the Tongue River.··So they had been appointed.·8·

·They were there.··They just simply weren't regulating·9·

·the main stem as they hadn't historically up to that10·

·point.··Prior to 2006 certainly.11·

· · ·· Q.· ·Okay.··And if we could -- I'm just trying to12·

·prioritize because I don't want you to have to come13·

·back.··Give me, like, two seconds just to quickly go14·

·through the exhibits and see what I have to ask about.15·

· · · · · · Okay.··One other question on a document,16·

·which is on M170.··If you can find that quickly enough.17·

·So it's the privileged and confidential State18·

·Engineer's Office document dated June 4th, 2004.19·

· · ·· A.· ·I have it.20·

· · ·· Q.· ·Okay.··Under the Montana's arguments in21·

·paragraph 3, it notes that "Changes in amounts of use22·

·(arguable) and methods of application of water.··So the23·

·methods of application of water is no longer an issue24·

·here.25·



Page 5350

· · · · · · But on the reference to changes in amount of·1·

·use, do you recall what Montana's arguments were there?·2·

· · ·· A.· ·I think that the implication there was by·3·

·changing methods of application, use could go up.··As·4·

·I'm trying to recall here.·5·

· · ·· Q.· ·Okay.··And then on page 2 in paragraph 5,·6·

·you'll see that it says "Wyoming's arguments are:·7·

·post-Compact increases in use are minimal...in both·8·

·Wyoming and Montana."·9·

· · · · · · And my question is, going to both of these,10·

·is whether the June 2004 meeting you recall whether or11·

·not there were discussions of post-1950 Compact water12·

·uses.13·

· · ·· A.· ·I think there had been some.··I'm trying to14·

·recall the reason I put that in this letter.··But, I,15·

·in my recollection, we, in Wyoming, had -- when I16·

·looked at Big Goose, Little Goose, as we were preparing17·

·to figure out what is our post-'50 exposure, I think18·

·that was a fair question we had internally.··The vast19·

·majority of our irrigated acres and the CFS flood20·

·irrigation were pre-Compact.21·

· · · · · · We had a lot of pre-Compact acres.··And22·

·relative to the large amount of irrigation we had23·

·pre-Compact, I had felt that our pre -- our24·

·post-Compact uses were minimal either because they were25·


PATRICK TYRRELL - November 26, 2013Recross-Examination by Mr. Draper

Page 5351

·regulated off quickly every year or they weren't that·1·

·many acres to begin with.··We did have our post-Compact·2·

·enlargements so some of the mountain reservoirs.··I was·3·

·unaware at that time of testimony I heard earlier in·4·

·the trial about post-Compact acres in Montana.·5·

· · · · · · But it did seem to me that our post-Compact·6·

·increases had not been as high as what I believe·7·

·Montana thought they were.··That was the education part·8·

·that I was trying to get the tour set up and exchange·9·

·information in our tab books and things like that.10·

· · ·· Q.· ·Okay.··Thanks.11·

· · · · · · SPECIAL MASTER:··I'm going to waive all my12·

·other questions.13·

· · · · · · So, Mr. Draper.··If you have any questions,14·

·make them really fast.15·

· · · · · · MR. DRAPER:··Okay.16·

· · · · · · · · · · RECROSS-EXAMINATION17·


· · ·· Q.· ·Mr. Tyrrell, you were discussing the question19·

·of hydraulic connection with the Special Master.··It's20·

·true, is it not, that your determination of hydraulic21·

·connection is as much a policy decision as a scientific22·

·decision?23·

· · ·· A.· ·I don't -- it's certainly based, I would24·

·hope, with scientific analysis.··I don't understand25·


PATRICK TYRRELL - November 26, 2013Recross-Examination by Mr. Draper

Page 5352

·your part of the question about being a policy·1·

·decision.·2·

· · ·· Q.· ·I'm simply quoting a statement from one of·3·

·your earlier submittals in this case with respect to·4·

·hydraulic connection where you stated exactly that.·5·

·That it's as much a policy decision of your office in·6·

·determining hydraulic connection as a scientific·7·

·determination.·8·

· · ·· A.· ·I guess I would like to see the something·9·

·you're referring to.··But we have -- I'm trying to10·

·think of policies we may have written regarding11·

·hydraulic connection.··So the context of your question,12·

·I guess, I'm just trying to gather.13·

· · · · · · SPECIAL MASTER:··Let me just rephrase it.14·

·And maybe I can get to exactly the same point.15·

· · · · · · In making your determination, obviously,16·

·you're having to look at science.··But I assume there's17·

·also a policy determination of at what point do the18·

·groundwater and surface water rights appear to be19·

·closely enough interrelated that they should be treated20·

·for purposes of the statute as one source of water?21·

· · · · · · THE WITNESS:··I think that's true.··Because22·

·we don't have the one-tenth of 1 percent in a hundred23·

·years type of threshold test in statute.··So to that24·

·extent, I'll agree with that.25·


PATRICK TYRRELL - November 26, 2013Redirect Examination by Mr. Brown

Page 5353

· · · · · · MR. DRAPER:··Great.··Thank you very much,·1·

·Your Honor.·2·

· · · · · · SPECIAL MASTER:··You're welcome, Mr. Draper.·3·

·Sorry to squeeze you, Mr. Brown.··But I just...·4·

· · · · · · MR. BROWN:··How much time does everybody need·5·

·to get out the door?·6·

· · · · · · · · · · REDIRECT EXAMINATION·7·


· · ·· Q.· ·If you recall, Mr. Tyrrell, Mr. Draper asked·9·

·you some questions with regard to the request for10·

·information that Wyoming had submitted to Montana in11·

·2004; do you remember that?12·

· · ·· A.· ·I do.13·

· · ·· Q.· ·And he referenced the fact that you had14·

·testified on your direct testimony that it would take15·

·quite a long time to put all that information together?16·

· · ·· A.· ·I did.17·

· · ·· Q.· ·I believe you also testified in your direct18·

·testimony that what your focusing goal was, was to try19·

·to figure out how to do a V, C allocation; isn't that20·

·right?21·

· · ·· A.· ·That was -- certainly when it came to the22·

·post-Compact use, I -- that was the tool I had, the V,23·

·B and V, C, yes.24·

· · ·· Q.· ·Have the states ever tried to put together25·



Page 5354

·enough information so that the diversions could·1·

·actually be added up and calculated as required by the·2·

·Compact?·3·

· · ·· A.· ·We have not yet.··Certainly that was my hope·4·

·back in '04 starting -- I thought we were going to end·5·

·up back in the Ashenberg/Allen days with different·6·

·names and maybe success.·7·

· · ·· Q.· ·And my question is:··Is that the same·8·

·analysis that you would have to do to figure out if·9·

·Wyoming has to turn off post-'50s or Montana's10·

·pre-'50s?··Is that the same analysis, or is it a11·

·different analysis?12·

· · ·· A.· ·I think that turning off post-'50s for13·

·pre-'50s is more purely a regulatory decision and not a14·

·mathematical monster that V, C would give you.15·

· · ·· Q.· ·So you wouldn't need all that information and16·

·all that time to get that done?17·

· · ·· A.· ·No.··And the only other point I was making18·

·is, once you get that data in that list, one time,19·

·you're done getting it.··You use it to inform future20·

·work.21·

· · ·· Q.· ·Quick question with regard to the diagram and22·

·concepts Mr. Draper was asking you with regard to23·

·Tongue River Reservoir.··And do you recall he talked24·

·about how that would be accounted for?··Do you remember25·



Page 5355

·that?·1·

· · ·· A.· ·I do.·2·

· · ·· Q.· ·Do you have any concern about how Tongue·3·

·River Reservoir and Art Hayes in the State of Montana·4·

·account for the rights in Tongue River Reservoir?·5·

· · ·· A.· ·Not really.··My concern is what constitutes a·6·

·full reservoir?··Whether it's in the enlargement or·7·

·main body of the original right.··Based, you know, in·8·

·1950, how do we assure that that level of use in 1950,·9·

·if that's our key date, that 32,000 acre-feet contract,10·

·how -- what does it take at that serve that?··And11·

·whether it's in -- under either one of those dashed12·

·lines, I don't really care.13·

· · ·· Q.· ·And just one final concept at least,14·

·Mr. Draper had asked you several questions with regard15·

·to the references in the 2004 Compact report to the16·

·call that was made in 2004.··Do you remember that?17·

· · ·· A.· ·I do.18·

· · ·· Q.· ·And he had asked, and he'd made at least some19·

·implications that it was a very subtle reference to the20·

·2004 calls; do you remember that?21·

· · ·· A.· ·He did.22·

· · ·· Q.· ·And I think he also implied, if not stated,23·

·that the only reason that those references were in the24·

·2004 report is because Montana had made a submission so25·



Page 5356

·that they would be in there; do you remember that?·1·

· · ·· A.· ·I do.·2·

· · ·· Q.· ·Do you recall what the draft of those 2004·3·

·minutes said?··Do you recall if it had reference to the·4·

·call or not?·5·

· · ·· A.· ·There was some discussion.··I want to·6·

·remember that there was some discussion about including·7·

·the letters in that draft.··I don't recall exactly how·8·

·we got to where we ended up.··But I know there was·9·

·discussion of how do we get the call into there.10·

· · ·· Q.· ·Well, let me ask you, let's go ahead and11·

·assume that the only way that any reference to the 200412·

·call made it in those minutes was because Montana13·

·submitted that later suggested change.··Are you aware14·

·of any other documents that reference the fact that15·

·there was a call made in 2004 by Montana?16·

· · ·· A.· ·I think we've been through about a thousand17·

·them today.18·

· · ·· Q.· ·All right.19·

· · · · · · MR. BROWN:··That's all I have.20·

· · · · · · THE WITNESS:··Thank you.21·


· · · · · · Thank you, Mr. Tyrrell.··And I appreciate23·

·your being here today.··And I'm glad we were able to24·

·actually get you off the stand today.25·



Page 5357

· · · · · · Everybody better just grab their papers and·1·

·rush out the door.··And we will start at 8:30 a.m. next·2·

·Monday.··Have a great Thanksgiving.··And I hope you all·3·

·are able to spend some time with your families rather·4·

·than other lawyers, unless your family does consist of·5·

·other lawyers.·6·

· · · · · · So anyway, so we're in recess until next·7·

·Monday.·8·

· · · · · · MR. DRAPER:··Thank you, Your Honor.·9·

· · · · · · · · · · · (Trial Proceedings recessed at10·

· · · · · · · · · · · 4:55 p.m., November 26, 2013.)11·

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·16·

·17·

·18·

·19·

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Page 5358

· · · · · · · · ·· REPORTER'S CERTIFICATE·1··· ·· · · · · · I, Vonni R. Bray, a Certified Realtime·2··· ··Reporter, certify that the foregoing transcript,·3··· ··consisting of 258, is a true and correct record of the·4··· ··proceedings given at the time and place hereinbefore·5··· ··mentioned; that the proceedings were reported by me in·6··· ··machine shorthand and thereafter reduced to typewriting·7··· ··using computer-assisted transcription.·8··· ·· · · · · · I further certify that I am not attorney for,·9··· ··nor employed by, nor related to any of the parties or10··· ··attorneys to this action, nor financially interested in11··· ··this action.12··· ·· · · · · · IN WITNESS WHEREOF, I have set my hand at13··· ··Laurel, Montana, this 13th day of February, 2013.14··· ··15··· ··16··· ·· · · · · · · · · · · · ·· ______________________________17·· · · · · · · · · · · · ·· Vonni R. Bray, RPR, CRR· ·· · · · · · · · · · · · ·· P. O. Box 12518·· · · · · · · · · · · · ·· Laurel, MT 59044· ·· · · · · · · · · · · · ·· (406) 670-9533 - Cell19·· · · · · · · · · · · · ·· (888) 277-9372 - Fax· ·· · · · · · · · · · · · ·· [email protected]··· ··21··· ··22··· ··23··· ··24··· ··25·


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No. 137, Original · · · ·· IN THE SUPREME COURT OF TH