Staking a claim: Montanans should file for their water rights before June 30
March 1, 2019
Ranchers with grazing allotments appurtenant to their patented lands (grazers of federal and state land) in Montana may want to file for their water rights in the near future to avoid losing them to the Bureau of Land Management, or another claimant.
Submit filings by June 30
Hinsdale Montana rancher Maxine Korman said that HB 110, a bill approved by the 2017 Montana legislature, reopened the window for landowners and allotment owners to obtain enforceable water rights, provided claims are filed by June 30, 2019. This is a last opportunity to file stock-direct from source claims that were perfected under 89-801,RCM. as well as stock and domestic from wells. These are rights confirmed by Congress in the "Act of 1866"; 14 Stat. 253.
According to Montana Department of Natural Resources water resource specialist Myles VanHemelryck, everyone eligible should have received a "Notice of Opportunity to File for Exempt Water Rights" from the DNRC to inform them they may file to claim their water rights by the end of June if they had not already filed a claim that meets the new HB 110 requirements.
This is a chance for water right owners to "Claim water rights that were put to use before 1973 that were not previously filed upon," said VanHemelryck.
According to the letter, a rancher's water rights could become subordinate to other rights filed before July 1, 1973 – when the Montana Water Use Act was passed – or claimed by someone else during this re-opened filing window. Failure to file will result in no enforceable priority date and the question of enforceable volume put to beneficial use, said Korman.
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Can federal land grazers own water rights on federal land?
Blair Dunn, a New Mexico rancher and attorney specializing in water rights and property rights said that Western states adhere to a "first in time, first in right" policy for water rights. In other words, whoever first put the water to beneficial use, is the water right owner.
A University of Arizona water rights paper backs this up:
"The essence of the doctrine of prior appropriation is that, while no one may own the water in a stream, all persons, corporations, and municipalities have the right to use the water for beneficial purposes. The allocation of water rests upon the fundamental maxim "first in time, first in right." The first person to use water (called a "senior appropriator") acquires the right (called a "priority") to its future use as against later users (called "junior appropriators").
The National Ag Law Center helps explain that water users in the West perfect their rights by continuing to put the water to beneficial use. "Once the water is put to a beneficial use, the right is perfected and has priority over later appropriators. Even if a better use of the water arises later, the senior appropriator still has the right to use his original right, no matter how wasteful the use may seem."
Wayne Hage, Jr., a Nevada rancher and property rights researcher has dealt with these policies extensively.
"According to the old law, 'first in time, first in right,' the first user was entitled to as much as he or she was using, but no more. No waste."
Hage explained that second and third users and so on were entitled to make use of whatever water wasn't needed by the first user. "Their rights were always subject to the first person. If the creek got low, the last one in was the first to get cut off."
Vested water rights are the highest form of water rights, said Hage. "These are rights that are not taxed. Even if you don't pay taxes, you won't lose these rights." Even property rights are not as stable as many Americans believe, he said. "Under U.S. law, people don't own land they way they did in England, for example. Stop paying your taxes and you'll find out who the real owner is," he said.
A vested right is one that is not dependent on anything else for its use and enjoyment and is not dependent on any future act to make it a complete right. "It's the highest form of right you can have."
Hage explains that his family has vested water rights for his ranch that pre-date federal land management agencies. "That's the big question in our case. Back in the 1800s, it was appropriated and put to beneficial use – raising livestock – when the feds came and said 'we're not going to recognize that anymore, you have to get a permit or we don't recognize your water rights – it raises the question in court – is this a true water right?
"We cede that the feds own their land, and they said we needed a permit to use the grass, but since we have a vested water right, they have to allow us to take the water off. That's why they came to that weird conclusion in that recent court case."
That "weird" conclusion Hage refers to is a decision made by the 9th Circuit Court of Appeals in the summer of 2018 wherein the judges told Hage he was allowed to remove the water from the federal land, regardless of whether or not the BLM approves.
Agencies filing for rights
"What Maxine Korman is trying to get people in Montana to do is to file claims on water rights they've had prior to the 1973 law. They should file claims so the state recognizes them as the water right owner, and the BLM or someone else doesn't claim them," said Dunn.
Prior to 1973, the government didn't meet the requirements to own a water right, said Dunn, because it didn't own stock and didn't have intentions of using it for mining.
But the 1973 Montana Water Use Act gave the federal government the opportunity to claim water rights because water for wildlife became a legally recognized "beneficial use." The Montana Courts have already granted BLM stockwater rights in reservoirs constructed under the Taylor Grazing Act.
A BLM spokesman, Al Nash, from the Billings office, said the BLM does sometimes file for water rights. "Often it is so that we are able to secure our place for water rights on behalf of current or future grazing allotees," he said.
VanHemelryck confirmed that indeed the BLM and the Bureau of Reclamation have both submitted filings under the HB 110 window of opportunity.
He also said that ranchers are filing on water rights associated with U.S. Forest Service- managed land, and he encouraged those individuals to include their grazing permit paperwork with their filing.
Hage said that the BLM and Forest Service did file on top of his family's Nevada water rights years ago, along with pulling grazing permits arbitrarily. "They drive us out of business and then file on our water rights, how much more evidence do we need that they are taking our rights?"
The land management agencies filed for stockwater rights but admitted they didn't own cattle or have any intention of owning cattle, so they were eventually unsuccessful, he said.
"They also said 'we're the federal government and we've always owned these water rights,' but that was struck down in the court."
The BLM and USFS also have a history of holding grazing permits hostage in exchange for water rights, said Dunn. So much so that Colorado Congressman Scott Tipton re-introduced the Water Rights Protection Act (H.R. 579) on January 15, 2019. The bill would uphold federal deference to state water law and prevent federal takings of privately held water rights. The Republican who represents about the western half of the state sponsored this bill in previous session but did not gain enough support to get it passed.
According to Tipton's website, the bill originated because the U.S. Forest Service tried to require the transfer of water rights into the federal government's hands in exchange for permits for ski areas operating on federal lands.
The Water Rights Protection Act would prohibit any federal agency from requiring the transfer of privately-held water rights as a permit condition.
"The government also goes to grazing permit holders and tells them, 'we'll give you your grazing permit so you can keep grazing but in exchange, when we put up a new dam on your property, you'll give us your water right.' This is extortion."
Korman says that she and her husband included an affidavit with their signed grazing permit that states that their signature on the permit "is not any agreement on my part to waive any of my rights protected under United States law," in order to clarify that they are not willing to give up their water rights in order to maintain grazing rights.
Montana's Water Use Act stated that failure to file was conclusive presumption of abandonment. Korman appealed BLM being awarded stockwater rights in conflict with the United States Supreme Court in U.S. v. New Mexico, as well as their failure to file was based on being told by Montana Department of Natural Resources and BLM employees they couldn't file. The U.S. Supreme Court didn't take their appeal for certiori.
The 1973 Water Use Act, Montana's first water permitting law defines water rights pre-dating 1973 as "Existing;" whereas New Mexico and Nevada define water rights predating water permitting law as "Vested." Because the Montana Water Court is not a Court of Record and "Savings Provisions for Vested Water Rights" are in multiple places in the Montana Code, Kormans are researching a Petition for Declaratory Judgment that their appropriative rights, which are a vested property protected under the Federal Constitution are vested. "They can't take something I already own without just compensation, unless we give our consent," said Korman.
According to Wayne Hage, Jr., the BLM and U.S. Forest Service have, indeed attempted to file for his family's water rights. They were unsuccessful because they could not prove that they owned livestock or had any intent of owning livestock.
"They also said 'we're the federal government and we've always owned these water rights,' but that was struck down in the court," said Hage.
In July of 2018, the BLM state Director told the Montana Water Policy Committee and shared details on a Power Point presentation that BLM plans to file 5,000-10,000 stock direct from source claims. He said BLM filings will primarily be in stream stock uses.
He referred to "lessees" and said they will use the permittees AUM's in order to claim the volume for stockwater.
He also reported that the BLM currently has almost 11,000 water rights for stockwater, almost 10,000 for wildlife and about 3,900 for irrigation, flood control and recreation sites.
Dunn said he believes it's possible that two individuals or entities could file for water rights for the same area during this window.
"If two people claim the same right, there will be a trial to determine who owns it. We do that a lot. I imagine the same process would go on. They would end up deciding who has the better claim."
VanHemelryck said that all of these filings will go through an adjudication process just like all other claims have gone through in state of Montana. "They will be reeavaluated to see if they are filing the right type of documents." He said that the DNRC will let filers know if there is more information needed to complete their claim.