Roundup Record Tribune & Winnett Times -

The Congressional Desert Land Act of 1877 severed the non-navigable surface water and the ground water from the western federal lands and gave them to the states. This resulted in a split estate of the western public lands. The Act of 1890 declared all lands west of the 100th meridian were under the "Prior Appropriation Doctrine" as it applied to water rights. It contained three main components: A. First in time, first in right, B. The user of the water and not the owner of the land gets the water right, and C. The water must be diverted and put to a beneficial use. Early legislation and judicial decisions focused on encouraging and accommodating settlement of the arid western federal lands.

Overgrazing of the federal rangelands contributed to the dust bowl in the early 1930's. This resulted in Congress passing the Taylor Grazing Act (TGA) of 1934 and President Roosevelt issuing Executive Order 6910, both of which resulted in all unclaimed federal land in the 12 western states being removed from the public domain, effectively ending the homesteading era.

The TGA authorized the creation of Federal Grazing Districts (six in Montana). The federal lands within the districts were determined to be, "chiefly valuable for grazing and raising forage crops" by the Secretary of the Interior. In addition, it allocated federal allotments to adjacent stock raisers. The goals of these actions were; to stop the extensive overgrazing, stop the erosion, help make the agricultural operations economically viable, help the economy of adjacent communities, and improve the habitats for wildlife. It has been tremendously successful on all points!

Most of the laws, regulations and judicial decisions concerning water rights relate to live streams and irrigation. Stockwater use on the dry federal rangelands was overlooked and is different. In the first place, Federal Grazing District ranchers are dealing with intermittent atmospheric water (rain and snow) that falls mainly on the pasture or allotment and is consumed by their livestock. Secondly, it is hard to specify points of diversion since the moisture can be spread over the entire pasture (i.e. a late spring or early fall 6 inch snowfall). Finally, the periodic spring runoffs have to be collected and stored (i.e. reservoirs or pits) so water is available to the livestock and wildlife during the hot dry summer months.

The federal government has been trying to take water rights from western grazing district stockmen since the 1970's (New Mexico vs US, 1978) when they claimed they owned the land and therefore they should have the water rights. They lost in the US Supreme Court. They tried again in Idaho in the 1990's when they claimed the ranchers' livestock were their beneficial use. They lost in the Idaho Supreme Court (Joyce vs US, 2007).

Now they are in Montana and are trying a different tack to claim a beneficial use. Since the BLM has never used the water and has no intention of using the water, they had to go to ridiculous lengths to show how they were putting the water to a beneficial use. They scoured the Montana water rights legal history and found an early Montana Supreme Court irrigation ruling (Bailey et. al. vs Tintinger et. al., 1912) that had nothing to do with stockwater rights. In Bailey the court ruled the Public Service Corporations that diverted, delivered, and sold water to settlers and homesteaders for irrigation could obtain a water right even though they were not the beneficial users. However, when a federal agency (Bureau of Reclamation) does the same thing they do not get a water right.

In 2014 the Montana Water Court's Water Master heard preliminary testimony concerning the adjudication of water rights on Beaver Creek a tributary of the Milk River Basin (40M). Unfortunately, the Montana Water Master, the Montana Water Court and six Montana Supreme Court judges bought the BLM's faulty argument that since they built the reservoirs they were delivering the water to the livestock and the livestock were their beneficial use (Barthelmess, 2016). Luckily, there was one Supreme Court Justice (Judge McKinnon) who read the laws properly and in her dissent totally destroyed the majority's decision. She convincingly details how Bailey is inapplicable to this case. One aspect she missed was that BLM did not construct the reservoirs or pits. Their main role is to inspect the site to make sure it will function as intended and would not harm archeological or wildlife etc. features. If it passed inspection a contractor was hired and paid with the rancher's range improvement funds (50% of the annual grazing fee). The structure then becomes appurtenant to the rancher's private property. In other words, the ranchers own the water rights in the reservoirs and pits on their federal allotment. Judge McKinnon's excellent dissent (Case No. 15-0533, MT Supreme Court, 2016, MT 348) is a must read for all ranchers having their federal allotment water rights adjudicated.

Basically, most of the Federal Grazing District ranches have been using this water for over 100 years and nobody contested or complained about this use of the water. For some reason the Federal Government has now decided they want the water rights. They do not want to use the water; they only want the water right. The obvious question is, WHY? One possible reason is the federal government was stymied in their attempt to dispose of federal rangeland during the Sagebrush Rebellion because they did not have clear title since ranchers held vested water rights. If the federal government gets the water rights, that roadblock will have been removed. They will then be free to dispose of the federal "public" rangeland.

If the BLM does not intend to use the water and the ranchers will still be able to water their livestock, where is the problem? There are a couple of major problems! First, the rancher is losing a vested property right that cannot be taken without due process and payment of just compensation (US Constitution, Amendment V). These vested rights are being replaced with a privilege that can be taken for any reason at any time with no compensation (how much "privileged" grazing is left on the CMR?). Secondly, how much will the ranch be worth if it does not have a guaranteed summer range water right?

Since the Montana bureaucracy (DNRC) and the Montana Courts have not protected the ranchers' property rights, their two choices are expensive litigation or help from the Montana Legislature. Hopefully, the new Administration and Legislature will be sympathetic to the ranchers' plight and pass a bill similar to the one passed in Idaho that says the BLM cannot hold a water right on the Federal Grazing Districts in Montana.

Ron Stoneberg

Hinsdale