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Hinsdale, Mont., rancher Maxine Korman wants every water user
pay attention to the mail these days. And she hopes grazing
permittees consider investing even more time in their water
rights research.
The Montana Department of Natural Resources and Conservation (DNRC)
and the Montana Water Court have finally picked up the pace and
are speeding through the state’s water adjudication process.
Rightful water users should hold vested water rights by the time
all watersheds have been reviewed and the process is completed
by 2020. Meanwhile, they should learn the adjudication process
and pay attention to letters from the DNRC so their claims will
be filed and reviewed correctly.
As Montana – as well as most western territories -- was settled,
a person could claim water from a stream, well, spring, seep or
even spring run-off by posting a sign at the point of diversion
and putting the water to beneficial use. Beneficial uses include
domestic, irrigation, stock-watering, manufacturing, mining,
hydropower, municipal, recreation, and fish and wildlife, among
others, and none has a higher priority than the others. For
example, stockwater is just as important as domestic use and
domestic use is just as important as irrigation. Montana’s prior
appropriation doctrine is similar to many other states because
it uses the First in Time, First in Right rule. Earlier dates of
beneficial uses are exercised first.
This history lesson matters because water rights are inheritable
and saleable, just like other property rights. Typically, water
rights go with the land unless they are specifically separated.
Korman has yet to complete the title search on her family’s
ranch, but she is pretty sure her family holds claims to water
on Bureau of Land Management (BLM) -administered lands.
“When water users first had leases or permits on public lands,
many people filed claims on federal lands,” says Montana Water
Court Judge Bruce Loble. “Prior to 1934 and the Taylor Grazing
Act, a stock grower could own the water right if they wanted to
claim it. After 1934, I don’t know. The rules and regulations
become more complicated and restrictive.”
The question of who owns the water rights on federally
administered lands becomes more important if one honors the
precedent set by Wayne Hage’s court battle.
A Tonopah, Nev., rancher, Hage challenged the Forest Service’s
authority to issue grazing permits if a private entity owned the
water on those lands. He eventually won, with the U.S. Court of
Federal Claims agreeing that an easement to graze the federally
administered land is implicit in the water rights.
Traditionally, that easement ventures as far as a cow can graze
from that water, said Wayne’s wife, Helen Chenoweth-Hage
recently, before she was killed in an auto accident.
Hage won his battle because he filed in the right court, the
U.S. Court of Federal Claims, and he defined the land in
question as fee lands, not public lands.
“In Barden v. Northern Pacific Railroad, heard before the turn
of the century, the court decided lands with rights or claims
otherwise attached are not public,” Chenoweth-Hage said. “This
case has been cited numerous times and never overturned in whole
or part.”
Rights or claims include water rights, ditches, roads, access
easements and others, Chenoweth-Hage said. On the other hand,
public lands are defined as (1) lands owned by the government
available to the public for purchase and or settlement or (2)
lands owned by the government to the exclusion of all private
rights.
“Wayne won because he was adamant that these lands are not
public,” said Chenoweth-Hage, whose husband, Wayne, died last
June. “Water is the key to defining private property.”
“(On fee lands) you have to claim the water right or you don’t
own inheritable rights,” says Korman, who ranches with her
husband, Ronnie, in northeastern Montana. “The Act of 1866
granted vested water rights and rights-of-way over federal lands
and those property rights and preferences exist independent of a
grazing permit.”
Some in the judiciary hesitate to fully support Hage’s victory.
They point to other landowners who have lost similar cases.
New Mexico ranchers Kit and Sherry Laney provided one such
well-publicized case when they challenged the U.S. Forest
Service’s authority to issue grazing permits.
They used Hage’s water-rights-equal-grazing-rights arguments,
but lost their claim – and their grazing permit -- in federal
district court.
“They filed in the wrong court,” Chenoweth-Hage said. “And when
they appealed, they appealed to the circuit court and used the
term ‘public land.’ The Secretary of Interior has the right to
make administrative decisions on public lands.”
Federal claims on state waters
Montana’s water adjudication process becomes an even more
important property rights issue when federal agencies file
claims to stockwater on federally-administered lands.
“People should protest this,” said Chenoweth-Hage. “The BLM
can’t own cattle and the water must be for that beneficial use.”
However, state and federal agencies can own other water rights
if the beneficial use is in-stream flows for fish, recreation or
wildlife. The law allowing in-stream water rights was passed in
1979 so these rights would be junior rights to earlier claims.
“They want the stockwater rights because those would be senior
rights,” Korman says. “Ranchers who don’t file their claims will
lose their water right. The judge will have to award the right
to the agency if they claim it.”
The consequences of federal agencies claiming water in the
Missouri River could become dire to states such as Montana.
“We need to get our house in order. We need to protect ourselves
from downstream demand,” says Harry Mitchell. Mitchell and his
wife, Kay, hold 10 claims to water rights that span Cascade
County, Mont.’s, history from 1885 through 1990. The Mitchells
worry that other states and the Army Corp. of Engineers will
demand Montana’s water for barges that transport goods up and
down the Missouri and Mississippi rivers.
“We haven’t been successful yet with the barges so maybe we’re
wasting our time, but we at least need to have a legitimate
claim to our own water,” Mitchell says.
Governor Schweitzer’s fee refund
Montana’s Water Court was authorized and the DNRC was directed
to review all water claims in 1979. The process was slow. Too
slow for most state legislators.
The 2005 Montana legislature passed a law to assess a fee to
every water user in Montana. Fees ranged from $20 per right to
$2,000, depending on the beneficial use. The fee was to be used
to speed the adjudication process, which has lingered at the
DNRC for more than 20 years where the staff has been trying to
sort through 219,000 claims in 85 watersheds.
“Prior to 2005, the DNRC had the equivalent of three people
working on claims. At that rate, it would take them 50 years to
complete their reviews,” Judge Loble says. “Now they have 40
people working and they are targeting 8,000 claims per year.
They reached their benchmark for 2006 already in July.”
And other, non-monetary benefits resulted from this water users’
tax.
“Typically, water rights are sold with property – they can be
separated, but usually they aren’t. But it is the seller’s
responsibility to notify the DNRC when ownership changes,” Judge
Loble says. “That didn’t always happen. When the DNRC sent out
bills for the fee, many went to the wrong addresses.”
Many letters were returned to sender and many expectant water
users called the DNRC when their letters did not show up.
Yet, “lots of folks, including the governor, were uncomfortable
with the source of funding for adjudication. Water users have
already gone to some expense defending water rights that they
already own,” says Mike Volesky, Gov. Brian Schweitzer’s policy
advisor for natural resources. “This is really a state
management function and maybe is should be paid for through the
general fund.”
Mitchell agrees. “We paid our fee and considered it money
well-spent, but next time we should pay for it out of the
general fund. It is in the public interest of all Montanans to
keep the process rolling,” he says.
Schweitzer has already informally proposed to the 2007 Montana
legislature a revocation of future water users’ fees – they are
to be collected every two years -- and a refund of those already
collected. Schweiter proposed to use general funds instead of a
user’s tax to pay for the adjudication process.
“This should get done; Everybody agrees it is necessary. It just
was never funded adequately,” Volesky says. “It will be good to
get it all sorted out.”
How it works: The water adjudication process
Water users have several opportunities to comment during the
water adjudication process in their basin.
First, every Montana water user was supposed to file a statement
of claim by April 30, 1982. Many people missed that deadline so
the legislature extended the deadline to 1996.
The Montana Department of Natural Resources and Conservation (DNRC)
evaluates each claim by watershed. Some watersheds are done,
some are in review and others are scheduled to be completed by
2020.
The DNRC reviews each statement of claim by comparing it to
surveys and aerial photos.
“If they find a seeming error, they contact the water user and
try to come to an agreement,” says Montana Water Court Judge
Bruce Loble. “If they can not come to an agreement, they issue
remarks on the claim. For example, if the statement of claim
says 100 acres are irrigated but a 1979 aerial photograph shows
only 50 acres, that would be noted.”
All reviewed claims go to the Montana Water Court next. Each
claim gets an Abstract for Water Right with a unique number. The
Water Court directs the DNRC to mail a notice of all water users
in a particular basin to each water user.
“Then everyone has 180 days to review the decree and file an
objection. That starts the judicial process,” says Loble. The
Water Court can combine objections within a basin if the judge
finds commonalities, improving efficiency.
Once Judge Loble issues decisions on all of the objections in a
basin – or on all of the reviewed claims if nobody files an
objection – he directs the DNRC to issue vested water rights
decrees.
So far, claims in 38 basins have been issued final, preliminary
or temporary preliminary decrees.
Montana’s water adjudication process and consequences are
complicated. To find out more, visit these Web sites:
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