§ 61-23-01 — Ratification of Yellowstone River Compact between the states of Montana, North Dakota, and Wyoming

North Dakota § 61-23-01

• Jurisdiction: North Dakota
• Title 61: Waters
• Ch. 61-23: Yellowstone River Compact

Text

North Dakota, and Wyoming.
The legislative assembly of the state of North Dakota hereby approves and ratifies the
compact designated as the "Yellowstone River Pact", dated at the city of Billings, state of
Montana, on the eighth day of December 1950. Signed by I. A. Acker, Einar H. Dahl, and J. J.
Walsh as the state representatives of the state of North Dakota on a compact commission
between the states of Montana, North Dakota, and Wyoming, which compact is as follows:
YELLOWSTONE RIVER COMPACT
The state of Montana, the state of North Dakota, and the state of Wyoming, being moved by
consideration of interstate comity, and desiring to remove all causes of present and future
controversy between said states and between persons in one and persons in another with
respect to the waters of the Yellowstone River and its tributaries, other than waters within or
waters which contribute to the flow of streams within the Yellowstone National Park, and
desiring to provide for an equitable division and apportionment of such waters, and to
encourage the beneficial development and use thereof, acknowledging that in future projects or
programs for the regulation, control, and use of water in the Yellowstone River basin the great
importance of water for irrigation in the signatory states shall be recognized, have resolved to
conclude a compact as authorized under the Act of Congress of the United States of America,
approved June 2, 1949 [Public Law 83, 81st Congress, First Session], for the attainment of
these purposes, and to that end, through their respective governments, have named as their
respective commissioners:
For the state of Montana: Fred E. Buck, A. W. Bradshaw, H. W. Bunston, John Herzog,
John M. Jarussi, Ashton Jones, Chris Josephson, A. Wallace Kingsbury, P. F. Leonard,
Walter M. McLaughlin, Dave M. Manning, Joseph Muggli, Chester E. Onstad, Ed F. Parriott,
R. R. Renne, Keith W. Trout;
For the state of North Dakota: I. A. Acker, Einar H. Dahl, J. J. Walsh;
For the state of Wyoming: L. C. Bishop, Earl T. Bower, J. Harold Cash, Ben F. Cochrane,
Ernest J. Goppert, Richard L. Greene, E. C. Gwillim, E. J. Johnson, Lee E. Keith, N. V. Kurtz,
Harry L. Littlefield, R. E. McNally, Will G. Metz, Mark M. Partridge, Alonzo R. Shreve, Charles
M. Smith, Leonard F. Thornton, M. B. Walker who, after negotiations participated in by
R. J. Newell, appointed as the representative of the United States of America, have agreed
upon the following articles, to wit:
ARTICLE I
A. Where the name of a state is used in this compact, as a party thereto, it shall be
construed to include the individuals, corporations, partnerships, associations, districts,
administrative departments, bureaus, political subdivisions, agencies, persons,
permittees, appropriators, and all others using, claiming, or in any manner asserting
any right to the use of the waters of the Yellowstone River system under the authority
of said state.
B. Any individual, corporation, partnership, association, district, administrative
department, bureau, political subdivision, agency, person, permittee, or appropriator
authorized by or under the laws of a signatory state, and all others using, claiming, or
in any manner asserting any right to the use of the waters of the Yellowstone River
system under the authority of said state, shall be subject to the terms of this compact.
Where the singular is used in this article, it shall be construed to include the plural.
ARTICLE II
A. The state of Montana, the state of North Dakota, and the state of Wyoming are
hereinafter designated as "Montana", "North Dakota", and "Wyoming", respectively.
B. The terms "commission" and "Yellowstone River compact commission" mean the
agency created as provided herein for the administration of this compact.
C. The term "Yellowstone River basin" means areas in Wyoming, Montana, and North
Dakota drained by the Yellowstone River and its tributaries, and includes the area in

Montana known as Lake Basin, but excludes those lands lying within Yellowstone
National Park.
D. The term "Yellowstone River system" means the Yellowstone River and all of its
tributaries, including springs and swamps, from their sources to the mouth of the
Yellowstone River near Buford, North Dakota, except those portions thereof which are
within or contribute to the flow of streams within the Yellowstone National Park.
E. The term "tributary" means any stream which in a natural state contributes to the flow
of the Yellowstone River, including interstate tributaries and tributaries thereof, but
excluding those which are within or contribute to the flow of streams within the
Yellowstone National Park.
F. The term "interstate tributaries" means the Clarks Fork, Yellowstone River; the Bighorn
River (except Little Bighorn River); the Tongue River; and the Powder River, whose
confluences with the Yellowstone River are respectively at or near the city (or town) of
Laurel, Big Horn, Miles City, and Terry, all in the state of Montana.
G. The terms "divert" and "diversion" mean the taking or removing of water from the
Yellowstone River or any tributary thereof when the water so taken or removed is not
returned directly into the channel of the Yellowstone River or of the tributary from
which it is taken.
H. The term "beneficial use" is herein defined to be that use by which the water supply of
a drainage basin is depleted when usefully employed by the activities of man.
I. The term "domestic use" shall mean the use of water by an individual, or by a family
unit or household for drinking, cooking, laundering, sanitation, and other personal
comforts and necessities; and for the irrigation of a family garden or orchard not
exceeding one-half acre in area.
J. The term "stock water use" shall mean the use of water for livestock and poultry.
ARTICLE III
A. It is considered that no commission or administrative body is necessary to administer
this compact or divide the waters of the Yellowstone River basin as between the states
of Montana and North Dakota. The provisions of this compact, as between the states
of Wyoming and Montana, shall be administered by a commission composed of one
representative from the state of Wyoming and one representative from the state of
Montana, to be selected by the governors of said states as such states may choose,
and one representative selected by the director of the United States geological survey
or whatever federal agency may succeed to the functions and duties of that agency, to
be appointed by the director at the request of the states to sit with the commission and
who shall, when present, act as chairman of the commission without vote, except as
herein provided.
B. The salaries and necessary expenses of each state representative shall be paid by the
respective state; all other expenses incident to the administration of this compact not
borne by the United States shall be allocated to and borne one-half by the state of
Wyoming and one-half by the state of Montana.
C. In addition to other powers and duties herein conferred upon the commission and the
members thereof, the jurisdiction of the commission shall include the collection,
correlation, and presentation of factual data, the maintenance of records having a
bearing upon the administration of this compact, and recommendations to such states
upon matters connected with the administration of this compact, and the commission
may employ such services and make such expenditures as reasonable and necessary
within the limit of funds provided for that purpose by the respective states, and shall
compile a report for each year ending September thirtieth and transmit it to the
governors of the signatory states on or before December thirty-first of each year.
D. The secretary of the army; the secretary of the interior; the secretary of agriculture; the
chairman, federal power commission; the secretary of commerce, or comparable
officers of whatever federal agencies may succeed to the functions and duties of these
agencies, and such other federal officers and officers of appropriate agencies of the
signatory states having services or data useful or necessary to the compact
commission, shall cooperate, ex officio, with the commission in the execution of its

duty in the collection, correlation, and publication of records and data necessary for
the proper administration of the compact; and these officers may perform such other
services related to the compact as may be mutually agreed upon with the commission.
E. The commission shall have power to formulate rules and regulations and to perform
any act which they may find necessary to carry out the provisions of this compact, and
to amend such rules and regulations. All such rules and regulations shall be filed in the
office of the state engineer of each of the signatory states for public inspection.
F. In case of the failure of the representatives of Wyoming and Montana to unanimously
agree on any matter necessary to the proper administration of this compact, then the
member selected by the director of the United States geological survey shall have the
right to vote upon the matters in disagreement and such points of disagreement shall
then be decided by a majority vote of the representatives of the states of Wyoming and
Montana and said member selected by the director of the United States geological
survey, each being entitled to one vote.
G. The commission herein authorized shall have power to sue and be sued in its official
capacity in any federal court of the signatory states, and may adopt and use an official
seal which shall be judicially noticed.
ARTICLE IV
The commission shall itself, or in conjunction with other responsible agencies, cause to be
established, maintained, and operated such suitable water gaging and evaporation stations as it
finds necessary in connection with its duties.
ARTICLE V
A. Appropriative rights to the beneficial uses of the water of the Yellowstone River system
existing in each signatory state as of January 1, 1950, shall continue to be enjoyed in
accordance with the laws governing the acquisition and use of water under the
doctrine of appropriation.
B. Of the unused and unappropriated waters of the interstate tributaries of the
Yellowstone River as of January 1, 1950, there is allocated to each signatory state
such quantity of that water as shall be necessary to provide supplemental water
supplies for the rights described in paragraph A of this article V, such supplemental
rights to be acquired and enjoyed in accordance with the laws governing the
acquisition and use of water under the doctrine of appropriation, and the remainder of
the unused and unappropriated water is allocated to each state for storage or direct
diversions for beneficial use on new lands or for other purposes as follows:
1. Clarks Fork, Yellowstone River
a. To Wyoming 60%
To Montana 40%
b. The point of measurement shall be below the last diversion from Clarks Fork
above Rock Creek.
2. Bighorn River (Exclusive of Little Bighorn River)
a. To Wyoming 80%
To Montana 20%
b. The point of measurement shall be below the last diversion from the Bighorn
River above its junction with the Yellowstone River, and the inflow of the
Little Bighorn River shall be excluded from the quantity of water subject to
allocation.
3. Tongue River
a. To Wyoming 40%
To Montana 60%
b. The point of measurement shall be below the last diversion from the Tongue
River above its junction with the Yellowstone River.
4. Powder River (Including the Little Powder River)
a. To Wyoming 42%
To Montana 58%
b. The point of measurement shall be below the last diversion from the Powder
River above its junction with the Yellowstone River.

C. The quantity of water subject to the percentage allocations, in paragraph B 1, 2, 3, and
4 of this article V, shall be determined on an annual water year basis measured from
October first of any year through September thirtieth of the succeeding year. The
quantity to which the percentage factors shall be applied through a given date in any
water year shall be, in acre-feet, equal to the algebraic sum of:
1. The total diversions, in acre-feet, above the point of measurement, for irrigation,
municipal, and industrial uses in Wyoming and Montana developed after January
1, 1950, during the period from October first to that given date;
2. The net change in storage, in acre-feet, in all reservoirs in Wyoming and Montana
above the point of measurement completed subsequent to January 1, 1950,
during the period from October first to that given date;
3. The net change in storage, in acre-feet, in existing reservoirs in Wyoming and
Montana above the point of measurement, which is used for irrigation, municipal,
and industrial purposes developed after January 1, 1950, during the period
October first to that given date;
4. The quantity of water, in acre-feet, that passed the point of measurement in the
stream during the period from October first to that given date.
D. All existing rights to the beneficial use of waters of the Yellowstone River in the states
of Montana and North Dakota, below Intake, Montana, valid under the laws of these
states as of January 1, 1950, are hereby recognized and shall be and remain
unimpaired by this compact. During the period May first to September thirtieth,
inclusive, of each year, lands within Montana and North Dakota shall be entitled to the
beneficial use of the flow of waters of the Yellowstone River below Intake, Montana, on
a proportionate basis of acreage irrigated. Waters of tributary streams, having their
origin in either Montana or North Dakota, situated entirely in said respective states and
flowing into the Yellowstone River below Intake, Montana, are allotted to the respective
states in which situated.
E. There are hereby excluded from the provisions of this compact:
1. Existing and future domestic and stock water uses of water:
Provided, that the capacity of any reservoir for stock water so excluded shall
not exceed 20 acre-feet;
2. Devices and facilities for the control and regulation of surface waters.
F. From time to time the commission shall re-examine the allocations herein made and
upon unanimous agreement may recommend modifications therein as are fair, just and
equitable, giving consideration among other factors to:
Priorities of water rights;
Acreage irrigated;
Acreage irrigable under existing works; and
Potentially irrigable lands.
ARTICLE VI
Nothing contained in this compact shall be so construed or interpreted as to affect adversely
any rights to the use of the waters of Yellowstone River and its tributaries owned by or for
Indians, Indian tribes, and their reservations.
ARTICLE VII
A. A lower signatory state shall have the right, by compliance with the laws of an upper
signatory state, except as to legislative consent, to file application for and receive
permits to appropriate and use any waters in the Yellowstone River system not
specifically apportioned to or appropriated by such upper state as provided in article V;
and to construct or participate in the construction and use of any dam, storage
reservoir, or diversion works in such upper state for the purpose of conserving and
regulating water that may be apportioned to or appropriated by the lower state:
Provided, that such right is subject to the rights of the upper state to control, regulate,
and use the water apportioned to and appropriated by it; and provided further, that
should an upper state elect, it may share in the use of any such facilities constructed
by a lower state to the extent of its reasonable needs upon assuming or guaranteeing
payment of its proportionate share of the cost of the construction, operation, and

maintenance. This provision shall apply with equal force and effect to an upper state in
the circumstances of the necessity of the acquisition of rights by an upper state in a
lower state.
B. Each claim hereafter initiated for an appropriation of water in one signatory state for
use in another signatory state shall be filed in the office of the state engineer of the
signatory state in which the water is to be diverted, and a duplicate copy of the
application or notice shall be filed in the office of the state engineer of the signatory
state in which the water is to be used.
C. Appropriations may hereafter be adjudicated in the state in which the water is diverted,
and where a portion or all of the lands irrigated are in another signatory state, such
adjudications shall be confirmed in that state by the proper authority. Each adjudication
is to conform with the laws of the state where the water is diverted and shall be
recorded in the county and state where the water is used.
D. The use of water allocated under article V of this compact for projects constructed
after the date of this compact by the United States of America or any of its agencies or
instrumentalities, shall be charged as a use by the state in which the use is made:
Provided, that such use incident to the diversion, impounding, or conveyance of water
in one state for use in another shall be charged to such latter state.
ARTICLE VIII
A lower signatory state shall have the right to acquire in an upper state by purchase, or
through exercise of the power of eminent domain, such lands, easements, and rights of way for
the construction, operation, and maintenance of pumping plants, storage reservoirs, canals,
conduits, and appurtenant works as may be required for the enjoyment of the privileges granted
herein to such lower state. This provision shall apply with equal force and effect to an upper
state in the circumstance of the necessity of the acquisition of rights by an upper state in a lower
state.
ARTICLE IX
Should any facilities be constructed by a lower signatory state in an upper signatory state
under the provisions of article VII, the construction, operation, repairs, and replacements of such
facilities shall be subject to the laws of the upper state. This provision shall apply with equal
force and effect to an upper state in the circumstance of the necessity of the acquisition of rights
by an upper state in a lower state.
ARTICLE X
No water shall be diverted from the Yellowstone River basin without the unanimous consent
of all the signatory states. In the event water from another river basin shall be imported into the
Yellowstone River basin or transferred from one tributary basin to another by the United States
of America, Montana, North Dakota, or Wyoming, or any of them jointly, the state having the
right to the use of such water shall be given proper credit therefor in determining its share of the
water apportioned in accordance with article V herein.
ARTICLE XI
The provisions of this compact shall remain in full force and effect until amended in the
same manner as it is required to be ratified to become operative as provided in article XV.
ARTICLE XII
This compact may be terminated at any time by unanimous consent of the signatory states,
and upon such termination all rights then established hereunder shall continue unimpaired.
ARTICLE XIII
Nothing in this compact shall be construed to limit or prevent any state from instituting or
maintaining any action or proceeding, legal or equitable, in any federal court or the United
States Supreme Court, for the protection of any right under this compact or the enforcement of
any of its provisions.
ARTICLE XIV
The physical and other conditions characteristic of the Yellowstone River and peculiar to the
territory drained and served thereby and to the development thereof, have actuated the
signatory states in the consummation of this compact, and none of them, nor the United States
of America by its consent and approval, concedes thereby the establishment of any general
principle or precedent with respect to other interstate streams.

ARTICLE XV
This compact shall become operative when approved by the legislature of each of the
signatory states and consented to and approved by the Congress of the United States.
ARTICLE XVI
Nothing in this compact shall be deemed:
(a) To impair or affect the sovereignty or jurisdiction of the United States of America in or
over the area of waters affected by such compact, any rights or powers of the United
States of America, its agencies, or instrumentalities, in and to the use of the waters of
the Yellowstone River basin nor its capacity to acquire rights in and to the use of said
waters;
(b) To subject any property of the United States of America, its agencies, or
instrumentalities to taxation by any state or subdivision thereof, nor to create an
obligation on the part of the United States of America, its agencies, or
instrumentalities, by reason of the acquisition, construction, or operation of any
property or works of whatsoever kind, to make any payments to any state or political
subdivision thereof, state agency, municipality, or entity whatsoever in reimbursement
for the loss of taxes; and
(c) To subject any property of the United States of America, its agencies, or
instrumentalities, to the laws of any state to an extent other than the extent to which
these laws would apply without regard to the compact.
ARTICLE XVII
Should a court of competent jurisdiction hold any part of this compact to be contrary to the
constitution of any signatory state or of the United States of America, all other severable
provisions of this compact shall continue in full force and effect.
ARTICLE XVIII
No sentence, phrase, or clause in this compact or in any provision thereof, shall be
construed or interpreted to divest any signatory state or any of the agencies or officers of such
states of the jurisdiction of the water of each state as apportioned in this compact.
In Witness Whereof the commissioners have signed this compact in quadruplicate original,
one of which shall be filed in the archives of the department of state of the United States of
America and shall be deemed the authoritative original, and of which a duly certified copy shall
be forwarded to the governor of each signatory state.
Done at the city of Billings in the state of Montana, this 8th day of December, in the year of
our Lord, one thousand nine hundred and fifty.
Commissioners for the state of Montana:
Fred E. Buck, A. W. Bradshaw, H. W. Bunston, John Herzog, John M. Jarussi, Ashton Jones,
Chris Josephson, A. Wallace Kingsbury, P. F. Leonard, Walter M. McLaughlin, Dave M.
Manning, Joseph Muggli, Chester E. Onstad, Ed F. Parriott, R. R. Renne, Keith W. Trout.
Commissioners for the state of North Dakota:
I. A. Acker, Einar H. Dahl, J. J. Walsh.
Commissioners for the state of Wyoming:
L. C. Bishop, Earl T. Bower, J. Harold Cash, Ben F. Cochrane, Ernest J. Goppert, Richard L.
Greene, E. C. Gwillim, E. J. Johnson, Lee E. Keith, N. V. Kurtz, Harry L. Littlefield,
R. E. McNally, Will G. Metz, Mark M. Partridge, Alonzo R. Shreve, Charles M. Smith, Leonard F.
Thornton, M. B. Walker.
"I have participated in the negotiation of this compact and intend to report favorably thereon
to the Congress of the United States.
R. J. Newell,
Representative of the United States of America"