Federal land grazers are losing their vested water rights

Ranchers running livestock on federally managed lands are facing a major taking of which few appear to be aware. The Bureau of Land Management (BLM) has filed thousands of water rights with the Montana Department of Natural Resources (DNRC). The problem is these filings conflict with the vested water rights of the allotment holders.

Montana is a prior appropriation doctrine state which means, 'first in time, first in right' (miners' law). Most of the ranches using federal lands were established long before the BLM came into existence. Montana law also states the water must be put to beneficial use and livestock use has been ruled beneficial. This established vested water rights. The BLM has never beneficially used any of the water.

Unfortunately, DNRC, the state agency that should be protecting Montana citizens' water rights, is supporting giving our water to the BLM. When the Montana Constitution was passed in 1973 the legislature charged DNRC with cleaning up the water rights confusion. Everyone was required to refile their claims in spite of the fact there should have been a record of the previously filed vested water rights. The refiling process quickly deteriorated into total confusion. Exempt rights were suddenly not exempt, conflicting advice was being disseminated by DNRC offices and finally the legislature stepped in to try and fix the problems. It seems this whole exercise was geared to extinguish the rancher's vested water rights so DNRC could support the thousands of claims filed by the BLM.

When the DNRC personnel are confronted about BLM not putting the water to beneficial use they respond that since we are leasing the federal lands our cows are their beneficial use (I am not making this up!). In the first place, we are not leasing our federal rangeland. These lands were adjudicated to the adjacent landowners by the Taylor Grazing Act and in accordance with the Act we pay a fee or tax for our exclusive use of the forage. Our existing vested water rights were included. The DNRC will also try to justify their line of reasoning by comparing it to a rancher leasing land from a neighbor who uses the rancher's cows to hold his water right. However, unlike the BLM, the neighbor had previously put the water to beneficial use so he could obtain a water right which the neighbor's cows allow him to maintain.

The Federal Lands Policy Management Act (FLPMA) and the National Environmental Policy Act (NEPA) require an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) whenever a federal agency implements an action that could impact a region environmentally or economically. The Valley County Conservation District (VCCD) considered the BLM filing of thousands of water rights, which could have major impacts to the vested water rights holders and their communities, to be a significant action by a federal agency. Therefore, the VCCD requested the BLM to complete an EA or (preferably) an EIS. However, the Montana BLM State Director decided this action rated a categorical exclusion. He further stated they were protecting the water for the ranchers. In other words, they are saving our water rights by taking them away! In an attempt to provide transparency, the VCCD has invited him and his staff to explain their actions to the Conservation District and its constituents.

The US Constitution gave all non-navigable waters to the states to administer. There appears to be a major effort to wrest these water rights from the states and move them to federal control. Witness the recent battle over the Waters of the United States and the ongoing CSKT compact ratification. The federal government can take our water rights, but if they are vested, then they have to pay us for them (taking of private property). However, if the BLM owns the water and permits us to use it, they can jerk the permit at any time and do not owe us anything.

The filing process is rapidly coming to a close. The next step is for the Montana Water Court to rule on the conflicting claims and the outlook for a final decree favoring the landowners does not look good. So what can be done? According to established legal precedence (citations available) vested water rights are private property. Amendment V of the Constitution of the United States says, "….nor shall private property be taken for public use, without just compensation." Therefore, if the Montana Water Court gives a landowner's vested water rights to the BLM then the landowner is eligible for 'just compensation'. The avenue for redress is through the federal Court of Claims which has already ruled in a couple of cases that the taking of a vested water right by the federal government requires just compensation. Therefore, it is imperative that landowners with vested water rights on their allotments do not voluntarily give up their water rights. If worst comes to worst we may have to file a class action law suit with the Court of Claims.