Amicus Curiae Brief — Fidelity Exploration & Production Co. v. Northern Plains Resource Council, Inc.

No. 03-257 | SEP 1 & 2003

In The

Supreme Court of the Gnited States

wv

FIDELITY EXPLORATION & PRODUCTION COMPANY,

Petitioner,

v.

NORTHERN PLAINS RESOURCE COUNCIL, INC.,

Respondent.

,

Vv

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

2

Vv

AMICUS CURIAE BRIEF OF TONGUE

& YELLOWSTONE RIVER IRRIGATION

DISTRICT AND TONGUE RIVER WATER

USERS’ ASSOCIATION OPPOSING THE

PETITION FOR WRIT OF CERTIORARI

Vv

ELIZABETH A. BRENNAN

Counsel of Record

ROSSBACH BRENNAN, P.C.

401 North Washington Street

Missoula, Montana 59802

(406) 543-5156

BRENDA LINDLIEF HALL

REYNOLDS, MoTL & SHERWOOD

401 North Last Chance Gulch

Helena, Montana 59601

(406) 442-3261

Attorneys for Amici Curiae

Tongue & Yellowstone

Irrigation District and Tongue

River Water Users’ Association

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether the discharge into a navigable river of highly

mineralized groundwater generated from natural gas

production, causing the addition of pollutants to wa-

ters of the United States, requires an NPDES permit

under the Clean Water Act.

Whether the case herein presents any questions of law

similar to those presented by South Florida Water

Management District v. Miccosukee Tribe of Indians,

No. 02-626.

ii

TABLE OF CONTENTS

Page

QUBSTIOIG PR eee eet vn vvccscnsscsernsnsenspcesesevennanes i

TAB Las OF COREG Ge cvcrcviesscesscvascensscaventintenvetecinns ii

TABLE OF ALTE BEI siscrncssnevnererniacssssniaeneasinse ili

INTEREST OF AMICI CURIA ...........cccccssssccsseceeees 1

SUMMARY OF ARGUMENTT........ccsccrsccsossccescevenseverse 2

DEAT ORIEING sevsesssnitctsecionaverentaanintaneneabiciamiannn 6

I. The Ninth Circuit’s Decision Is Consistent

With Other Circuits’ Interpretation of the

Clean Water Act............. ER cere re nove Serer ere 6

A. This Case is Completely Consistent with

the Only Other Circuit Court Case In-

volving Produced Water ...............cscceeceees 6

B. The Ninth Circuit’s Decision Is Consistent ~

with Both Lines of “Addition” Cases.......... 7

II. The Ninth Circuit’s Decision Is Correct, And

Does Not Merit TeV iOU .cccsevcccnscsssccscevicceskiness 10

CORSO LATING 00 x0rissncssiieenmenaeeeeeeneee 14

ili

TABLE OF AUTHORITIES

Page

CASES

Catskill Mountains Chapter of Trout Unlimited,

Inc. v. City of New York, 273 F.3d 481 (2d Cir.

IGT dicta is cdacinconhnbneiphacenaandelirahelanveedaninaiescioraueienns 7

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) ..........cccccccccccssscccsssseee 5

Dubois v. U.S. Dep’t of Agriculture, 102 F.3d 1273

ah chncacticsissdas sini esdabbensnbuenbboinekenuokyen 7,13

National Wildlife Federation v. Consumers Power

Co., 862 F.2d 580 (6th Cir. 1988) ..................... gonntly O 18

National Wildlife Federation v. Gorsuch, 693 F.2d

Se RE I iss knsivcnssonccsnonenvevinhosntnssneneseveses 8,9, 13

Sierra Club, Lone Star Chapter v. Cedar Point Oil

Co., Inc., 73 F.3d 546 (5th Cir. 1996)........... 5, 6, 7, 10, 12

South Florida Water Management District v.

Miccosukee Tribe of Indians, No. 02-626 ............... 6, 7, 13

United States v. Mead Corp., 533 U.S. 218 (2001)............. 5

STATUTES

Caicos ah binpaiadidingaiannennnnabnieie 5, 11

REGULATIONS

i cask diped ccatntoasanensaicinsasmnnsaeseiiin 12

id iaiinlaeie oniseaisaspininkeneoneniinteayesnaneet 12

a ior cicstnestundanvenanneveiensieasuissaneatinics 12

I Lic iccetnaepuicanigayeetstensonheeyupeebatiaswseatebianinienesis 12

iv

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Montana Statewide Final Oil and Gas Environ-

mental Impact Statement and Proposed Amend-

ment of the Powder River and Billings Resource

IS FI sesanstccsinnsaninoisetinincsatemmenianineninl 3, 4,5

Montana Statewide Draft Oil and Gas Environ-

mental Impact Statement and Proposed Amend-

ment of the Powder River and Billings Resource

IIIS FN sncirsenccesecsneincidiacssinnsnsstcenemiaasiinines 3

1

INTEREST OF AMICI CURIAE —

Amici curiae Tongue & Yellowstone Irrigation District

and the Tongue River Water Users’ Association respect-

fully submit this brief in opposition to the Petition for Writ

of Certiorari.’ Written consent for amici curiae participa-

tion in this case was granted by counsel of record for the

parties. é

Amicus curiae Tongue & Yellowstone Irrigation

District (hereinafter “T&Y”) is the holder of the oldest

major water right on Montana’s Tongue River, into which

Fidelity Exploration & Production Company discharges its

coalbed methane wastewater. The Tongue River flows

north from the Montana-Wyoming border until it joins the

Yellowstone River, southeast Montana’s largest waterbody,

which eventually joins the Missouri River just inside the

North Dakota border. T&Y’s water right dates from 1886,

when the first diversion dam was built by local business-

men who knew agriculture could.not thrive without water,

and Miles City could not survive without agriculture. That

truism has not changed in 117 years.

Miles City is 145 windswept miles east of Montana’s

largest city, Billings. With a population of about 8,500,

Miles City is one of Montana’s larger towns. T&Y’s Twelve-

Mile Dam, as it is known, diverts water from the Tongue

River into the T&Y Ditch twelve miles south of Miles City,

"In accordance with Supreme Court Rule 37.6, amici curiae

Tongue & Yellowstone Irrigation District and Tongue River Water

Users’ Association affirm that no counsel for any party in this case

authored this brief in whole or in part, and that no persons or entities

other than amici or their counsel have made a monetary contribution

specifically for the preparation or submission of this brief.

2

then runs for 27 miles to the Yellowstone River. Along the

way, it provides water to 305 irrigators who irrigate more

than 9,500 acres in the lower Tongue River watershed.

T&Y water irrigates a variety of crops, including alfalfa,

corn, sugar beets, and small grains such as wheat, barley

and oats, as well as hundreds of family gardens and fruit

trees. As long as water is available for irrigation, the area

served by the T&Y Ditch is relatively fertile, as it is

blessed with long days of sun and relatively good soils.

Amicus curiae Tongue River Water Users’ Association

(hereinafter “the Association”) is a nonprofit corporation

comprised of ranchers and farmers. The Association was

organized in 1937 to appropriate, buy, market, sell, pump,

divert, develop, furnish, distribute, lease and dispose of

the waters of the Tongue River and its tributaries, includ-

ing the return flows and overflows of all water from the

river, its tributaries, dams, canals, ditches, etc. The

Association sells water to T&Y, for instance, for irrigation.

The Association’s members depend on the high-quality

surface waters of the Tongue River, as well as its many

tributaries, for their livelihoods as ranchers and farmers.

+

SUMMARY OF ARGUMENT

This case pits major oil and gas producers against

small-town Montana farmers and ranchers. Unlike many

cases in which farmers and ranchers argue against overly

restrictive interpretations of the Clean Water Act, amici

herein believe the Ninth Circuit’s decision properly inter-

prets the Clean Water Act and offers them the best hope of

protecting their land and their livelihoods. The Ninth

Circuit’s decision in this case — which simply holds that

3

the wastewater generated by coalbed methane production

is a “pollutant” — accomplishes the very goal Congress

intended: It protects the nation’s waters from the addition

of pollutants that threaten to destroy not only the water

upon which farmers and ranchers in southeastern Mon-

tana depend for irrigation,’ but the very soil upon which

they live and work. CBM wastewater contains many more

minerals than does the water of the Tongue River. Specifi-

cally, CBM wastewater is very salty. As described in the

Draft Environmental Impact Statement (DEIS) addressing

CBM development in Montana, “Sodium causes osmotic

stress to plants and destroys the texture of clayey soils;

these combined effects make sodium content, and espe-

cially SAR [sodium absorption ratio], a point of emphasis

when gauging impact to water resources from CBM

water.” Montana Statewide Draft Oil and Gas Environ-

mental Impact Statement and Proposed Amendment of the

Powder River and Billings Resource Management Plans

(hereafter DEIS) at 4-19, 4-28, available at www.deq.

state.mt.us/CoalBedMethane/DraftEIS/DraftPublicEIS.pdf

(emphasis added). Tre Tongue River valley is made up of

these “clayey” soils; thus, if amici irrigate with water that

has elevated sodium and/or SAR, the land they cultivate

will lose its ability to sustain plant life. In a region that

receives an average of only thirteen inches of rain per year

and suffers recurrent drought, the pollution of local rivers

* Irrigation is far and away the primary use of water in southeast-

ern Montana, and surface water is far and away the primary source of

water for irrigation. Montana Statewide Final Oil and Gas Environ-

mental Impact Statement and Proposed Amendment of the Powder

River and Billings Resource Management Plans at 3-28, available at

www.mt.blm.gov/mcfo/cbm/eis/volume 1/Chapter3.pdf.

4

will spell the demise of commercial agricultural opera-

tions, family farms, and backyard gardens. This scenario —

river pollution and/or the destruction of irrigated soils —

will cause direct harm to every irrigator represented by

amict.

It is worth noting thai Montana is a state where

water is scarce and frequently fought over. The Tongue

River has run at historic lows the past three summers as a

result of lingering drought; had CBM water been even

marginally usable, Tongue River irrigators would have

been able to irrigate more crops, which in turn would have

yielded many of them more money. Irrigators rarely, if

ever, refuse water someone tries to give them. They refuse

CBM wastewater because it is bad for their crops, and bad

for their land.

Although CBM development is in its infancy in

Montana, it is projected to mature quickly and exponen-

tially. The amount of CBM wastewater that will eventually

be generated by CBM production in Montana is stagger-

ing. The FEIS addressing CBM development in Montana

assumes that up to 26,475 wells will be developed in

Montana — a hundredfold increase from the current 250

wells. Montana Statewide Final Oil and Gas Environ-

mental Impact Statement and Propcsed Amendment of the

Powder River and Billings Resource Management Plans

(hereafter FEIS), Alternatives at 2-25, available at

www.mt.blm-gov/mcfo/cbm/eis/volume1/Chapter2.pdf. The vast

majority of wells will be developed in a 16-vounty area of

southeastern Montana, at the heart of which is Miles City

and the Tongue River. FEIS at 1-2 (map at 1-3), available at

www.mt.blm.gov/mcfo/cbm/eis/volume1/Chapter1.pdf. With

each weil producing 2.5-20 gallons per minute of wastewa-

ter, it is indisputable that full CBM production will result

5

in a torrent of salty wastewater in need of a place to be

discharged. Jd. at HYD-1, available at www.mt.blm.gov/

mcfo/cbm/eis/volume2/HydrologyApp. pdf.’

Nonetheless, amici do not seek a complete ban on

CBM production. They seek the protection of federal

regulation through the NPDES permitting process. Spe-

cifically, they have sought — and obtained — judicial recog-

nition that CBM wastewater is a pollutant under the

CWA. Because CBM wastewater is generated as a byprod-

uct of an industrial process and thereafter discarded, it is

“industrial waste.” 33 U.S.C. § 1362(6); see also Sierra

Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 73

F.3d 546 (5th Cir. 1996). Because CBM wastewater is

generated as a result of natural gas production and not

reinjected into deep wells, it is “produced water” not

exempt from the CWA’s definition of pollutant. 33 U.S.C.

§ 1362(6)(B). Finally, because CBM wastewater contains

minerals and metals that are regulated by the EPA as

“pollutants” — such as total dissolved solids, sodium,

barium, boron, copper, iron, manganese, nickel and zinc —

it is a poliutant. EPA’s formal determination that these

substances are “pollutants” is entitled to judicial deference

as long as it is reasonable. Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984);

United States v. Mead Corp., 533 U.S. 218 (2001).

Fidelity has attempted to cast this “pollutant” case as

something it is not — an “addition” case — in order to ride

* Fidelity, the only company currently producing CBM in Montana,

is permitted to discharge up to 1600 gallons per minute (gpm) into the

Tongue River from its 250 wells.

ee

6

the coattails of South Florida Water Management District

v. Miccosukee Tribe of Indians, No. 02-626. But this is not

Miccosukee. This case involves the uncontroverted addi-

tion of highly mineralized groundwater, which is not a

water of the United States, into a navigable freshwater

river which is a water of the United States The two water-

bodies are complete strangers to one another — or would be

but for Fidelity’s industrial natural gas production proc-

ess. Thus, this case bears no similarity to any of the

“addition” cases.

This is neither a 101(g) case involving states’ ability to

allocate water, nor a case in which sufficient deference was

not afforded the EPA. It is not a case that presents any

split in the circuits, nor any unique question of federal law.

For all of these reasons, amici irrigators respectfully

urge this Court to deny Fidelity’s petition.

.

v

ARGUMENT

I. The Ninth Circuit’s Decision Is Consistent With

Other Circuits’ Interpretation of the Clean Wa-

ter Act.

A. This Case is Completely Consistent with

the Only Other Circuit Court Case Involv-

ing Produced Water.

The Ninth Circuit’s conclusion that CBM wastewater

is a “pollutant” is wholly consistent with the only other

circuit court case addressing wastewater generated by oil

and gas production. Sierra Club, Lone Star Chapter uv.

Cedar Point Oil Co., Inc., 73 F.3d 546 (5th Cir. 1996); see

Pet. App. 9a-lla. There, the defendant oil company was

7

extracting oil from wells in Galveston Bay, Texas, and

discharging the wastewater into Galveston Bay without an

NPDES permit. The Fifth Circuit held that an NPDES

_ permit was required because the wastewater was “indus-

trial waste,” id. at 568; it was “chemical waste,” id.; it was

“produced water” not subject to the pollutant exemption,

id.; and finally, it contained several substances formally

recognized by EPA as pollutants. Jd. at 568-69.

The Ninth Circuit applied similar reasoning herein,

and concluded that CBM wastewater was a pollutant

because it was industrial waste, it was produced water not

exempted by the statute, and it caused “pollution” of the

receiving water. Pet. App. 9a-13a. While Fidelity may

disagree with the Ninth Circuit’s reasoning — or at least

with its conclusion — the fact is that the only two Circuit

Courts of Appeals to address the issue of “produced water”

applied similar reasoning and achieved similar results.

This Court’s review is therefore unnecessary.

B. The Ninth Circuit’s Decision Is Consistent

with Both Lines of “Addition” Cases.

After determining that CBM wastewater was a

pollutant, the Ninth Circuit addressed Fidelity’s conten-

tion that “unaltered water” cannot be a pollutant. Pet.

App. 18a-15a. It is in this context that the Ninth Circuit

made the comment trumpeted by Fidelity as evidence that

Miccosukee was key to this case. The Court of Appeals

cited Miccosukee, Catskill Mountains Chapter of Trout

Unlimited, Inc. v. City of New York, 273 F.3d 481, 492-93

(2d Cir. 2001), and Dubois v. U.S. Dep’t of Agriculture, 102

F.3d 1273, 1299 (1st Cir. 1996), for the proposition that

“transporting water from one water body to another can

8

violate the CWA.” Pet. App. 14a. In each of these cases,

water contaminated with one or more pollutants was

removed from one water body and added to another water

body, which did not have the same level of pollutants. In

each case, the Circuit Courts of Appeal held that pollut-

ants were “added” to the receiving water. Although the

case herein did not involve any issue of “addition,” it is

consistent with this line of cases.

But more importantly, it is equally consistent with the

second line of cases, known as the “dam cases.” National

Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir.

1982); National Wildlife Federation v. Consumers Power

Co., 862 F.2d 580 (6th Cir. 1988). These cases hold that

water moving through a dam is not “added” to the water

below the dam. In Gorsuch, which involved water-quality

changes induced by a dam, the D.C. Circuit held that no

NPDES permit was required based upon judicial deference

to EPA, which argued that pollutants must be introduced

from “the outside world.” Gorsuch, 693 F.2d at 165. EPA

was given similar deference by the Sixth Circuit in Con-

sumers Power, which involved moving water from Lake

Michigan through a turbine and back into the lake. The

turbine killed many fish; thus, the return flows to Lake

Michigan were filled with dead fish. The Sixth Circuit held

that the transformation of water by a point source is not

an “addition” under the CWA, and is therefore not subject

to NPDES permitting. Consumers Power, 862 F.2d at 585-

86. As in Gorsuch, EPA argued that unless a pollutant is

introduced from “the outside world,” there is no “addition.”

Id. at 584-85.

In neither of the “dam cases” was the issue of “pollut-

ant” addressed. The Gorsuch court observed that thermal

changes are included in the CWA’s definition of

9

“pollutant,” but deferred to the EPA for fact-specific

determinations on a case-by-case basis. 693 F.2d at 173-74

(quoting CWA sponsor Senator Muskie as saying, “Some-

times a particular kind of matter is a pollutant in one

circumstance, and not in another.”). The Consumers Power

court similarly acknowledged that dead fish would be

pollutants as “biological materials.” 862 F.2d at 585.

Nonetheless, the pivotal determination in both cases was

that no pollutant had been added to waters of the United

States from “the outside world” because nothing was

added to the water; it was the same water, simply “trans-

formed.” Lacking any “addition” of a pollutant, both courts

held the CWA did not apply.

-

Thus, the issue raised by these cases is what consti-

tutes the “outside world.” Whether this Court resolves the

tension between these two lines of cases by defining the

“outside world” historically (i.e., have the waterbodies ever

been one), hydrologically (i.e., are they hydrologically

connected), or legally (i.e., whether both waterbodies are

waters of the United States), the case herein will be

unaffected. CBM wastewater has no connection whatso-

ever to the surface waters into which it is being dis-

charged. The groundwater being pumped from deep

coalbed seams is wholly distinct from the surface water

into which it is being discharged. Moreover, the groundwa-

ter is not a navigable water, while the Tongue River is.

The “pollutant” -— CBM wastewater — first enters the

waters of the United States when it is discharged from the

point source by Fidelity. Thus, there is no question that

CBM wastewater is being added to the Tongue River and

its tributaries from “the outside world,” however that

phrase is interpreted by this Court.

10

II. The Ninth Circuit’s Decision Is Correct, And

Does Not Merit Review.

The Ninth Circuit’s decision not only presents no

conflict with any other circuit, it is consistent with com-

mon rules of statutory interpretation as well as with the

EPA’s own determination in this case.

The Ninth Circuit held that CBM wastewater is a

pollutant because it is “industrial waste,” which it found

encompassed “any useless byproduct derived from the

commercial production and sale of goods and services.”

Pet. App. 10a. This holding is consistent with the Fifth

Circuit's holding in Cedar Point Oil, which specifically

noted that the wastewater from Cedar Point’s oil produc-

tion process was a pollutant both as “industrial waste” and

as “chemical waste.” 73 F.3d at 568. As industrial waste is

explicitly listed as a pollutant in the Clean Water Act, no

discharges of it may occur without a permit.

Not surprisingly, Fidelity contests this holding as an

“expansive reading” of the term “industrial waste.” Pet. 18.

But statutory interpretation based upon the plain lan-

guage of a statute is hardly novel jurisprudence. The

Ninth Circuit’s interpretation — which does not conflict

with any other circuit court or with the EPA’s determina-

tion in this case — merely applies plain-language defini-

tions to the phrase “industrial waste.” As noted by the

Fifth Circuit, water is “the highest volume waste source in

offshore oil and gas operations.” Jd. at 551. The same is

certainly true for CBM operations. Thus, it seems wholly

logical to describe a substance that is generated as the

result of an industrial process and subsequently discarded

as “industrial waste” — regardless of whether that sub-

stance is “natural water.” The “natural” state of the water

11

is irrelevant for purposes of the CWA. If the receiving

water has no historical, hydrological, or legal connection to

the source water, then the source water is an “addition” to

the receiving water. If the remaining four elements under

the CWA are met, an NPDES permit is required before

discharge.

A second basis for the Ninth Circuit’s holding was that

CBM wastewater is “produced water” that is not reinjected

into state-approved wells, and therefore not exempt from

the CWA. Pet. 10a. After listing several categories of

pollutants, the Clean Water Act states that pollutant does

not mean:

(B) water, gas, or other material which is in-

jected into a well to facilitate production of oil or

gas, or water derived in association with oil or

gas production and disposed of in a well, if the

well used either to facilitate production or for

disposal purposes is approved by authority of the

State in which the well is located, and if such

State determines that such injection or disposal

will not result in the degradation of ground or

surface water resources.

33 U.S.C. § 1362(6)(B). In other words, Congress chose to

exempt from NPDES permitting the disposal of water

“derived in association with oil or gas production” if it is

disposed of in a well and meets other criteria. While CBM

water is indisputably “derived in association with oil or

gas production,” Fidelity is not reinjecting any of it.‘

‘ It should be noted that Fidelity could reinject CBM water into

state-approved wells, and would not be required to get an NPDES

permit to do so. Moreover, amici would prefer this method of disposal.

12

The Fifth Circuit was compelled by this statutory

exemption to note that the exclusion of produced water in

certain circumstances was “a strong indicator of Con-

gress’s concern over the effects of produced water on the

environment.” 73 F.3d at 568. Moreover, noted the Fifth

Circuit, “If, absent an exemption, produced water rein-

jected into a state-approved well is a pollutant, then it is

hardly a stretch to say that produced water deposited

directly into a bay is also a pollutant.” Id. The Ninth

Circuit found this logic compelling. Pet. lla (“The CWA

only exempts water derived from gas extraction from

regulation when the water is disposed of in a well and will

not result in the degradation of other water bodies.”).

Fidelity argued to the Ninth Circuit, as it did in its

petition, that “produced water” must have chemicals

added to it. Pet. 20, 10a. Once again applying commonly

accepted rules of administrative law, however, the Ninth

Circuit looked to -EPA’s definition of “produced water,”

which clearly does not require the addition of chemicals:

Produced water means the water (brine) brought

up from the hydrocarbon-bearing strata during

the extraction of oil and gas, and can include

formation water, injection water, and any chemi-

cals added downhole or during the oil/water

separation process.

40 C.FR. § 435.41(bb), 40 C.F.R. § 435.11(bb) (emphasis

added); see also 40 C.F.R. § 63.761, 40 C.F.R. § 68.3 (Clean

Air Act) (“Produced water means water that is extracted

from the earth from an oil or natural gas production well,

or that is separated from crude oil, condensate, or natural

gas after extraction.”). In other words, water that is

pumped from underground coal seams during the extrac-

tion of natural gas is produced water, regardless of

13

whether chemicals have been added to it. Moreover, the

EPA’s reference to produced water as brine implicitly

recognizes that water from “the hydrocarbon-bearing

strata” is salty — and for irrigators who depend upon fresh

water, salt is anathema.

Simply put, the Ninth Circuit’s opinion broke no new

legal ground. It is consistent with other circuits’ approach

to statutory interpretation under the Clean Water Act.

Most importantly, the holding — that CBM wastewater is a

“pollutant” under the CWA — in no way rests upon this

Court’s ultimate holding in Miccosukee. Regardless of how

this Court defines “the outside world” for purposes of the

Clean Water Act, the decision of the lower court will be

unaffected. Whether this Court adopts the Miccosukee-

Dubois line of reasoning or the Gorsuch-Consumers Power

line, coalbed seams are unquestionably “the outside world”

to the Tongue River.

Sd

14

CONCLUSION

For the foregoing reasons, amici Irrigators respect-

fully request that the petition be denied.

DATED: September 18, 2003.

Respectfully submitted,

ELIZABETH A. BRENNAN

Counsel of Record

ROSSBACH BRENNAN, P.C.

401 North Washington Street

Missoula, Montana 59802

(406) 543-5156

BRENDA LINDLIEF HALL

REYNOLDS, MOTL & SHERWOOD

401 North Last Chance Gulch

Helena, Montana 59601

(406) 442-3261

Attorneys for Amici Curiae

Tongue & Yellowstone _

Irrigation District and Tongue

River Water Users’ Association