Did The DNRC Commit Fraud In Giving Our Water Rights To The BLM?
March 25, 2020
Anyone reading the Feb. 19, Glasgow Courier would realize the Valley County Conservation District has been trying to get to the bottom of the illegal theft of our vested water rights that is occurring in Montana, including Valley County. It has been a steep learning curve! The US and Montana water laws are complicated but appear to be quite straight forward to the average citizen that takes the time to look into them. However, when the legal ferrets get through twisting and turning every clause and sentence, you begin to wonder.
First, everyone agrees Montana is a prior appropriation doctrine state. That means, "first in time, first in right." In other words, the person that first diverts the water and puts it to beneficial use owns the right to use the amount needed. It has been upheld that livestock drinking the water meets the requirement of a diversion and beneficial use. The pre-1973 water laws confirmed that a holder of a prior right had an existing or 'vested' water right that could only be removed by legal action (i.e. eminent domain). Many of the ranches in Valley County were settled in the early 1900s and acquired vested water rights. The Taylor Grazing Act of 1934 took the public land that had been the customary range of the adjacent landowner out of the public domain and adjudicated it to the adjacent landowner. The landowner got two things. First, was a grazing right (the exclusive right for his/her/their livestock to use the forage) on the federal range, and, secondly, the Act recognized and maintained the landowners existing vested water rights on the combined federal/private acreage.
Everything worked fine with few problems, particularly in non-irrigated rangeland, until the passage of the Montana Constitution in 1972 when things started to come unraveled. The legislature formed the Department of Natural Resources and Conservation (DNRC) and charged this new agency with the task of straightening out the water rights mess in Montana. Being new, they were totally unprepared for the task and were literally overwhelmed. Ranchers were told their stockwater rights were exempt from filing. Many did not file and were later told they had lost their rights because they missed the filing deadline. Files were lost due to water damage following the train wreck in Helena and the ranchers were lied to and told they could not file on water on the BLM lands. The legislature passed bills designed to fix the mess but just added to the confusion. The end result was many ranchers did not file and when they tried to file were informed the BLM had already filed on their waters.
Interestingly, this same scenario played out in Idaho. It began with the adjudication of the Snake River Basin and the ranchers were advised by the Idaho Department of Water Resources not to file stockwater claims as the state would defend their rights. Some of the ranchers filed anyway and then learned the BLM had filed thousands of claims over all of the ranchers' claims. The state government also discouraged the ranchers from filing objections. The federal solicitors told the ranchers that if they filed they would bankrupt them. Two ranchers did not take their advice and took it to court at a huge personal cost. They won. The Idaho Supreme Court ruled the federal government cannot hold a stockwater right.
State and Federal Codes have clearly declared and it has been upheld by the US Supreme Court that the states own all of the non-navigable waters within their boundaries. Therefore, the only way the federal government can get a water right is if the state gives it to them. We do not believe the BLM has been successful in acquiring stockwater rights in any western state and we do not think it should happen in Montana. In addition, President Trump issued an executive order on April 25, 2017, establishing an "Interagency Task Force on Agriculture and Rural Prosperity." One of the purposes of the order is to, "(ix) ensure that water users' private property rights are not encumbered when they attempt to secure permits to operate on public lands;" So why are we battling the BLM for our stockwater rights?
Unfortunately, we need [to] look no further than our own state government for the answer. We believe the DNRC committed fraud when they lied to ranchers and told them they could not own the right to the use of water on federal lands. This is in total contradiction to federal and state laws that declare the user of the water owns the right to the water regardless of who owns the land. In addition, why did the DNRC tell the BLM to file on unfiled water rights rather than notifying the existing right holder that they should file? Instead of helping ranchers with the complicated filing process, the DNRC recommended a file (627) that turned out to not be a legitimate recording. In other words, the DNRC did everything in their power to discourage ranchers from filing on their federal ranges and then encouraged the BLM to file. We believe there should be an investigation into their fraudulent behavior.
In order to establish fraudulent behavior we must document abuses ranchers suffered at the hands of the DNRC. Unfortunately, most ranchers do not document interactions with government agencies. If you have documented evidence dig it out and have it ready to present. If not, you can file an affidavit with the county clerk and recorder detailing the bad advice you were given.