Stoneberg Holt to Montana legislators: Accept the results of the federal water rights adjudication |

Stoneberg Holt to Montana legislators: Accept the results of the federal water rights adjudication

There have been herds of cattle in Montana since the 1850s, but there have been livestock for much longer. Original Americans had horses in the 1700s and had been practicing intelligent bison herd management for about 10,000 years. Humans drinking direct from source and livestock water are far and away the oldest uses of water in Montana.

Under Montana water law, livestock water rights belonged to the people who watered their livestock on their customary range, no matter who owned that range, up until passage of the Montana Water Use Act on June 29, 1973. There was no requirement for filing. The person actually putting the water to use owned the right from the moment the stock first took a drink, period. They didn’t own a right to all the water anywhere, just exactly as much as the herd needed to drink and no more.

Montana decided she needed to know who had what rights to protect and regulate them, which necessitated filing. Legislators at the time stated that they didn’t want to cause any existing rights to be lost. They failed in that goal. Nowhere has that been more the case than with livestock water rights.

One of the problems with livestock water rights is that they were never adequately addressed in the Montana Water Use Act, which focused on irrigation, wells, and towns. Trying to describe what cattle do in terms and forms developed for irrigation ditches was so confusing and inadequate that many people failed to file their rights even to the paltry extent allowed.

Range cattle wander the landscape. They eat snow drifted into sagebrush. They drink rainwater trickling along trails. They don’t confine themselves to acknowledged streams or human-made pits. Any depression can hold rainwater; snow will collect anywhere across the range. The Montana Water Use Act never took that into account. Further, cows have been doing this for over a hundred years now. There is no irrigator, no town that has ever used Montana water without the condition that cows are in their pastures and that they have full access to the water there. Has any irrigator ever said, “I can’t irrigate unless my neighbor’s cows are fenced out of a snowbank”? Has any Montana town ever said, “We need all the cows turned out to pasture a month later so that we will have water available”? This use has been taken tacitly into account in the adjudication, but never officially acknowledged.

June 28, 1934, Congress directed the US Secretary of Agriculture to determine which lands in the United States were “chiefly valuable for grazing” and to organize them into Grazing Districts. The grazing in these districts was then adjudicated based upon the livestock numbers the range could support without being degraded, which ranchers had been using these ranges the longest, which ranchers owned the oldest water rights on these ranges (remember at that time using the water meant owning the right), if the ranchers were permanent residents, ownership of patented lands for hay production, and how much the ranchers had invested in infrastructure needed to care for their herds.

This federal adjudication means that the priority dates and adequate availability, so important in the state water adjudication, have already been addressed on these ranges. The people on the ranges today are the ones the federal adjudicators found to have the oldest and strongest claims to the forage and water. If there had not been enough water for the herds in 1934, then that range would not have been adjudicated at that level. This water right has already been weighed against other claims and found adequate. The only thing it hasn’t been, is recognized by the state of Montana.

In 1978, the Department of Natural Resources and Conservation (DNRC) reported to the Montana Legislature Interim Subcommittee on Water Rights. Their number one reason for the statewide adjudication was, “protection against demands and lawsuits by… the federal government.” They said the existing forms and laws did not adequately address stockwater rights. (Leaving someone out of an adjudication makes it invalid under the federal McCarran Amendment and would require it to start over with everyone included.) They also said that people with stockwater rights weren’t very knowledgeable and that the adjudication was going to be very expensive. Since about half the water rights were stockwater rights, continuing to ignore them would save a lot of money. (They didn’t say anything about the cost of having to redo the adjudication if it were found to be in violation of the McCarran amendment.) They mentioned that if range stockwater rights were not ignored, they’d need to be filed with a map because use is range-wide, and also said that these rights were not controversial, since livestock drinking water on their ranges did not noticeably affect other users. They advised the legislature to exempt stockwater from filing requirements to economize.

At that point, ranchers could only file for stockwater in streams, pits, lakes, and wells. Wells and lakes were fine. Streams were only a fraction of the places cows regularly accessed and used water, leaving a lot unprotected. Perhaps worse, pits had a priority date of when the pit was made. Consider. First in time is first in right, so priority date is critical. The cows had been in the pasture, getting water from everywhere for 150 years, with a priority date in the 1800s. Then someone shoved some dirt around to improve conditions for cattle, vegetation, and wildlife. Suddenly, accessing water in that spot didn’t have an 1800s priority date like it did last week, it had a priority date of yesterday. The water is 1895 trickling into the pit, 1965 in the pit, and 1895 again if it overflows. Imagine having a 1938 right to use water in your house. Then you add a sink. Now you only have a 2022 right to use that sink. But it isn’t a new use. You aren’t going to wash your hands twice as often because you have two sinks. It’s the same water, the same use, the same amount. Pits are the same. No one buys an additional herd of cattle just because they built a pit. No one’s cattle suddenly drink twice as much because a pit was built. Building a pit doesn’t change how much rain and snow fall during a year. Before and after the pit, the herd drinks exactly as much water as it needs from the range every day, just like it has for a century, and it stays the same size as it was federally adjudicated to under the Taylor Grazing Act.

The ranchers could file their stockwater rights, but the DNRC actively discouraged them and in some cases erroneously told them they were not permitted to, because, remember, that was how the DNRC was going to save the state money. And because the forms were developed for irrigation, and a cow is not a sprinkler system, filing was byzantine and confusing. Our Place is pretty small. I consider myself relatively sharp and capable, and I have a GPS and a very good mapping program. I filed for our streams (on our place that’s just 60.4% of the total right but it’s all I was permitted to do) using the forms and procedures the DNRC had developed. It took me 78 pages just to do the basic forms and legal descriptions. That did not include any of the maps, aerial photos, or supporting documents the DNRC asked for. And then some poor DNRC person had to check it all and enter those almost 30,000 characters into the computer (twice) and then I had to check their work to find all the places they mistyped one of those tens of thousands of letters and numbers (their accuracy wasn’t quite as high as human cells copying DNA, but it was quite good). We won’t even get into how many hours that was, and it left 39.6% of the right ignored. If someone tells you, “The ranchers all had an opportunity to file and chose not to,” ask yourself how good that opportunity was given that they had a state agency telling them over and over not to file and given a procedure that verged on impossible to comply with.

Meanwhile, the DNRC was not actively discouraging the Bureau of Land Management (BLM) from filing. Recall that until June 29, 1973, the BLM did not own a single solitary livestock water right for any livestock that they did not actually own. The earliest instance I can find of the BLM being granted a livestock water right by the Montana Water Court, despite not having livestock, dates to May 31, 1983 and was given a retroactive priority date of December 31, 1930. Since this predates the BLM and the Taylor Grazing Act, which led to the formation of the BLM, I suspect that the federal government purchased land with livestock water rights already attached to it. This would be a valid way for the BLM to obtain water rights, even without livestock. If you let your livestock drink water, you get a water right. If you then sell your land with the water right attached, the buyer gets the right and keeps it as long as someone’s livestock is there drinking. If, on the other hand, you let your livestock drink water and get a water right, and in the meantime the federal government passes some laws and hires some bureaucrats and creates some forms and adds to your taxes and shuffles management around, at no point does your right magically become theirs if they haven’t paid you for it… at least, not in a perfect world and not according to any Montana laws.

Once the federal grazing had been divided up into Grazing District allotments, the federal government was directed to tax the rancher’s grazing. These taxes were then to go half to the government (as taxes do) and half were to be pooled and then spent on the allotments. The theory was that the federal government could efficiently plan major projects across all the allotments of a district and enjoy economies of scale. This oversight would also allow the government to make sure its interests were being served. If the government failed to do this, it was supposedly required to return those monies to the ranchers. Most of that money went into projects like fencing and building pits to store stockwater. (I crunched the numbers on our Place and found a surprisingly good fit over almost a hundred years. For decades the money that we paid into the Range Improvement Fund would build up to enormous sums and then the BLM, just as it was supposed to do, would, in a flurry of activity, spend all or more of our built-up fund on major, big-ticket projects. Then the process would repeat. Over the very long term, the amount paid in almost exactly equaled the benefits.)

The Water Court has gone both ways on this. Where ranchers have gotten filings through the DNRC gauntlet, the Water Court has confirmed that watering stock, regardless of land ownership, and then filing, means a valid water right. The BLM has contested this and been told they are wrong. However, in the many cases where the BLM filed, the Water Court has not told them that they have no livestock, so they have no beneficial use. It has simply granted the right. This is the opposite of Idaho, whose Supreme Court and Legislature have forbidden the BLM to own any stock water rights for which they don’t own stock. The people that have managed to file the allowed 60% of their water right are in pretty good shape. Any water rights the BLM has are junior. But 40% of the right has never been open for filing, and most people were successfully prevented from filing.

Meanwhile, a group of ranchers contested the BLM’s ownership of water rights for which they had no use. The Supreme Court’s December 28, 2016 finding was mostly disastrous for Montana’s ranchers. Interestingly, the Court did find that water rights before June 29, 1973 were valid and vested as soon as the water was used; there was no filing requirement. They also found that the ranchers’ stockwater rights would have predated the BLM’s and had an earlier priority date. They said that the fact that the ranchers were the first users of the water did not prevent someone else from coming along at a later date and, so long as there was still water, appropriating some of the other water for a new use. All of this is true. However, they found that this did not prevent the BLM from having a stockwater right. The Court considered that directing a contractor to build a reservoir with the ranchers’ money, which they would otherwise have had to return to the rancher, meant that the BLM had built the reservoir. I disagree. If you need to buy a gallon of milk and you hand me ten dollars and send me to the store for it, the money is still yours and the milk is still yours, and I have to give you the change. I’m just part of the process. (According to the Taylor Grazing Act, improvements like wells, fences and reservoirs are owned by the rancher.)

The Supreme Court said that a valid water right doesn’t prevent another person from appropriating left- over water later. This is true, but a water right needs a use. In this case, the rancher obtained a water right to water a herd of cattle. The water right kept functioning. The cattle kept drinking. The federal government did a lot of shuffling of paper. Now the court says that the old right is still valid… the rancher still has the old right to water the herd of cattle, but now the government also has the same right to use the same water to water the same cattle with a more junior date because it paid money out of the rancher’s pocket to a contractor who shoved some dirt around. The BLM could validly get a junior right for a new use, but there would have to be a new use! Say wildlife. The government could say that they were using some of the water the cattle didn’t drink to water elk. Fine. But they are saying that they are using some of the water the cattle didn’t drink to water the same cattle that have already drunk. If we’re both in the kitchen, and I make a pan of brownies, you can say, “I’m going to use some of the flour that you didn’t use to make some chocolate chip cookies,” and as long as there was enough flour, we could have cookies and brownies. But if you say, “Let me have the flour you didn’t use in your brownies so that I can have had put it in the brownies you made. See, I made you brownies!” I would think you were just weird, and there would only ever be the one pan of brownies. Let’s not even go into the fact that the case the Supreme Court relied on for their decision would equate the BLM to, “a [public service] corporation which does not own, control, or possess any land [which] is organized for the purpose of selling or renting water to settlers to irrigate arid lands.”

Yeesh what a mess! So I’m asking Montana’s legislators to accept the results of the federal adjudication under the Taylor Grazing Act from 1934. The federal government carried out a careful, proper adjudication with notification, filing, hearings, appeals, all the bells and whistles. They determined who was running livestock where and how many and by extension, they determined exactly what stockwater rights existed. And under Montana law as it then stood, all these federally determined stockwater rights were valid and vested, right up to June 29, 1973. Even the Supreme Court has agreed that they were real. And filing has never been genuinely open for them, and the Legislature officially exempted them from the filing requirement, so they haven’t been abandoned through failure to file. If the Montana Legislature will just accept the results of the federal adjudication, all the federal Grazing District stockwater rights can be saved in one fell swoop. The BLM can keep all their junior rights with no fuss, no matter how ridiculous some of them are. Our endless, expensive water adjudication and all the irrigators will not be affected in the least. We can give everyone a priority date of June 27, 1934, one day before the passage of the Taylor Grazing Act, since we know the true priority dates all precede the Taylor Grazing Act, but we don’t know by how much. I’ve found my great grandfather’s original filing for the Taylor Grazing District Adjudication giving the priority date he claimed, so I know the federal government had that information at one time, but searching it down would just be too expensive and time-consuming. We’ve already spent too much on this. A June 27, 1934 date isn’t absolutely ideal, but it is great value for the money. So if you care about cowhorses and healthy rangelands and small towns and ranchers, please do all you can to help me encourage the Legislature to accept the results of the federal adjudication!

Sierra Dawn Stoneberg Holt, Ph.D.

Hinsdale, MT

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