Stoneberg: The theft of water rights on BLM
Water rights in Montana have been the topic of much discussion and rulings, both legislatively and judicially, over the past 40 plus years. To say this has resulted in a totally confused mess would be an understatement. When the dust finally settled it became apparent that vested water rights on allotments managed by the Bureau of Land Management (BLM) in Montana were being taken away from the private citizens. How did this happen?
After many hours of poring through historic and recent water rights documents, I discovered the main problem was that stockwater rights received very little attention in the Montana Water Use Act (Act) of 1973. In fact, water rights on rangelands administered by the BLM were not addressed at all. A part of the Act that has caused a lot of trouble for BLM allotment holders was MCA 85-2-306 (Exemption to Permit Requirements). Of particular interest was section (6) of this law, “a permit is not required before constructing an impoundment or pit and appropriating water for use by livestock if: (d) the impoundment or pit is to be constructed on and will be accessible to a parcel of land that is owned or under the control of the applicant and that is 40 acres or larger.” The Department of Natural Resources and Conservation (DNRC) legal council quoted this section as justification to give the pit construction and water use permit to the BLM rather than the rancher. This action was designed to eliminate vested water rights and replace them with a statutory privilege called a permit.
The DNRC’s interpretation was wrong on several points. First, construction of a pit was not a new use of stockwater rights. The historic stockwater rights should still be in force regardless of where or how the water is diverted. Stockwater use is different than other water uses since the diverter (livestock) and the point of diversion (puddle, intermittent stream, pit, reservoir, etc.) change constantly and should not require a new filing with each change. Secondly, the phrase, “land that is owned or under the control of the applicant…” is in direct conflict with the established and judicially upheld Montana water laws in force when the Act was passed. The Montana Water Court in Cases No. 40E-A and 40G-190 (2005) noted: “V. Under Montana law, title to a water right vests in an appropriator regardless of ownership of land.” (p. 32). In other words, the user of the water and not the owner of the land is entitled to the water right.
The DNRC legal team also assumed the BLM and not the allottee “controlled the land”. What the DNRC legal team failed to realize was the allottee controlled the grazing rights on the BLM administered allotment. The Taylor Grazing Act (TGA) of 1934 removed land from the public domain and allocated it to adjacent landowners. The landowners were given an exclusive right to graze this federally managed land. When the federal government removed lands from the public domain and set it aside it was assumed and upheld that they also transferred enough water to meet the demands of the repurposed lands (i.e. Indian Reservations, wildlife refuges, etc.) However, the TGA recognized the federal lands allotted to the adjacent landowners included their customary range and water rights when it stated, “Nothing in this Act shall be construed or administered in any way to diminish or impair any right to the possession and use of water for mining, agriculture, manufacturing, or other purposes which has heretofore vested or accrued under existing law validly affecting the public lands or which may be hereinafter initiated or acquired and maintained in accordance with such law”. Since the TGA recognized the landowners already owned the vested water rights on their allotments, no federal compact to obtain water rights for the utilization of their allotments was necessary. Using these facts, the DNRC legal team could easily have justified the water in the pits belonged to the allottee and not the BLM. And if that interpretation sounds extreme to you, you need look no further than the next section (7). It deals with filing after construction, which means all conditions listed in section (6) (including, “under control of the applicant”) apply, and, in section (7b), it requires that Forest Service allottees include formal evidence of the existence of their allotments with their applications. Under Montana law, Forest Service allottees have “control of the land” they graze, but the DNRC legal team decided that this does not also apply to BLM allottees.
The theft of our historic water rights on BLM managed rangeland in Montana began with the passage of the Water Use Act in 1973. Prior to that date Montana law recognized and protected vested water rights. The Act, apparently, substituted ‘existing water right’ for ‘vested water right’ and defined it to mean, “a right to the use of water that would be protected under the law as it existed prior to July 1, 1973.” We had legally upheld vested rights prior to 1973, so according to the definition they should still exist. However, when the BLM and DNRC bureaucrats are asked about our ‘vested’ water rights they will say that word is not in Montana water law and, therefore, is not applicable. Their knowledge of Montana water law obviously begins in 1973! They have used this line of denial to conveniently ignore our pre-1973 historic vested rights. They also claim that any change in diversion or use after 1973 requires a permit. As mentioned earlier, in the case of stockwater use, the diverter and point of diversion are constantly changing and are not new uses. For example, a new pit in a customary range does not constitute a new use of a water right. The DNRC’s goal appears to be to extinguish our vested water rights (a property right) and replace them with a statutory privilege (a permit) which can be taken away at any time. In addition, the DNRC encouraged the BLM to file on our vested rights, which they claimed we had abandoned and forfeited. They accepted these BLM filings even though they were illegal. To obtain a legal water right in Montana the water must be diverted and put to beneficial use – the BLM does neither! Unfortunately, the Montana Water Court recently sided with the federal government in a preliminary basin adjudication and the Montana Supreme Court upheld their decision.
Ranchers in Montana who are about to lose their vested water rights (notably those using BLM managed rangelands) need to band together to stop the adjudication process and begin drafting legislation so this gross injustice can be corrected in the next legislative session. In addition, it is strongly recommended that you do not exchange your vested water right for a permit. If you accept a permit, you have lost your property right!
Box 37, Hinsdale, MT 59241
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Outtagrass Cattle Co. cartoon by Jan Swan Wood for the July 24, 2021, edition of Tri-State Livestock News