I’ve written before about range stockwater rights. The federal government has decided (wrongly!) that the existence of ruminant animals is destroying the climate, and they want to have a clear path to removing cattle from the United States. Big city enviros resent people living in non-urban areas, because they believe that all non-urban areas should be playgrounds for the wealthy, and they resent the presence of locals in their playgrounds. Historically, stockwater rights have proven to be one of the most powerful protections against these two lines of attack. Montana has minimal stockwater right protections. We have one chance to change this in the next legislative session. If we fail, we are facing the end of ranching in Montana. This is a serious charge, but the evidence is everywhere.
A convincing piece of evidence is the US (the BLM) seeking to invalidate Idaho water law. Western water law says that using water for something productive grants the right to continue doing so. Ranchers water their livestock. If they stop, their livestock die. Idaho law says watering livestock is a beneficial use and a reason to have a water right. Idaho law says that pushing paper and administering while someone else waters livestock is not a beneficial use and does not grant a water right. They have forbidden the federal government to hold any water rights for livestock they do not actually own and water. Historical Western water law, Congressional law, and past US Supreme Court decisions all resoundingly support the Idaho law. And yet the BLM is challenging it in court. Why? Well, money doesn’t matter to the federal government. They can always ask China to print them more. After all, the federal government is absolutely unaffected if livestock drink or not, if livestock live or die. The water right means nothing to their survival or jobs. But if they own the livestock water right, they have the power of life and death over the livestock and thus over the rancher, and for that, they are willing to go against all previous state and federal law in the hopes of finding a sympathetic judge, who fails to read past decisions. If you doubt this, note that the comments in the articles about this case are overwhelmingly about the need to eliminate ranchers.
If you are a non-federal allotment rancher, a farmer, or a small town business person, you may be inclined to take a deep breath and be grateful that someone else has a target painted on them and not you. However, we must all hang together, or we will all hang separately. Once these forces have eliminated your neighbors, you will be next in line, and with your neighbors no longer supporting the schools and businesses that you rely on, you will be that much weaker.
Before the Montana Water Use Act of 1973, the simple act of putting water to a beneficial use secured a vested water right. There was no need for any filings or notifications or anything. As soon as the water was used, you owned the right. You can see that this only works if there are no conflicts. How can anyone know that you have used the water and have the right, if you don’t need to tell anyone or record it anywhere? But pre-1973 Montana water law and Montana court cases including a recent Montana Supreme Court case all agree it was so… who had used the water owned the right.
In the case of range stockwater, the rights which are unprotected and which are critical to preserving our rural communities, that means that everyone who owned a herd of livestock that watered on the range, owned a valid, vested, Montana stockwater right. State and federal law and courts have repeatedly emphasized that underlying land ownership didn’t matter, especially in the case of federal land. Those rights all existed and were protected by the state until 1973. In 1973, it was decided that all water rights must be filed, and anyone who did not file had intentionally abandoned their right. BUT stockwater rights were specifically “exempted” by the legislature. The state told ranchers either that stockwater could not be filed or should not be filed or need not be filed and did not mention that not filing would leave the rights unprotected. Far too many Montanans listened to their state employees and lost protection for their rights. But, gee, since they were technically not abandoned under state law, if only we had a way to know exactly what herds of livestock were on the range in 1973, we’d know what water rights had existed, and we’d be able to protect them all!
Turns out that starting in 1934, under the Taylor Grazing Act, grazing on federally managed lands was adjudicated. The adjudication was done as correctly and completely as these things ever are. Everyone grazing on federally managed lands was asked to file. They provided details about their herd size (volume, diversion means, and purpose), the privately owned land in their operation, their grazing system (period of use), their customary range (source, point of diversion, and place of use), how long they had been grazing (their priority date). In short, the federal grazing adjudication took into account ALL the critical elements included in the state water adjudication. The adjudication process involved all the legally necessary notices, filings, objections, and hearings. The result was maps that assigned each acre of grazing land (of any ownership) in all the Federally Designated Grazing Districts to a specific ranch as their customary grazing range. As a byproduct, it also designated the exact description of vested stockwater rights on these acres as they existed on June 27, 1934, the day before the passage of the Taylor Grazing Act… 39 years before the state of Montana demanded to be provided with that information and then wouldn’t let the ranchers give it. The BLM is able to give us an exact accounting of an already-complete adjudication of range stockwater rights that have been exercised continuously from that day to this on all the Federally Designated Grazing Districts, the very water rights that are at the greatest risk.
All we have to do is accept the federal adjudication, just as it exists, and incorporate it into our state water adjudication. We need to spend no more money on adjudication, no more time on filing, make no changes to what has been adjudicated so far. The state merely needs to write to the BLM and request a list of allotment holders, allotted herd sizes, grazing periods, and official allotment maps or tabulation sheets (allotment maps given as legal descriptions instead of visuals), and then declare them existing stockwater rights and part of the adjudication. I’ve written a draft bill that would do this. You can e-mail me at [email protected] to ask for a copy or further information or advice.
Please help me contact elected officials and livestock, rural area, and farming representatives and urge them to adopt this solution. It is simple, elegant, and easy, but will be confusing to some people. Please prepare yourself to explain why this is so important, how it works, and why it is the least expensive, most complete option available.
A Senator asked me, “Who will oppose this?” The answer is, only the enemies of ranching. This doesn’t cost the state money. It doesn’t endanger anyone else’s water rights. It changes nothing, but only grants protection to what has existed for over 100 years. It will be attacked only by people who want the power to end ranching, but it will be attacked vigorously by them. The more vigorous the attack, the more store that person sets by eliminating all cattle in Montana.
Sierra Dawn Stoneberg Holt, Ph.D.
Hinsdale
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