CONTINUING FEDERAL GRAZING DISTRICT'S WATER RIGHTS SAGA
March 31, 2021
The Valley County Conservation District has been trying to alert their constituents, and others, about how the federal government is succeeding in taking the vested water rights away from the Federal Grazing District allotment holders without any just compensation. The feds were aided by our Montana Water Court and the Montana Supreme Court which both ruled in favor of the Bureau of Land Management (BLM) in the Beaver Creek (south Phillips and Valley counties) adjudication. These courts may have violated the 1972 Montana Constitution which stated, "(3) All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people...." (Article IX, Section 3). We do not believe the BLM qualifies as "[Montana's] people". In our efforts to get these stock water rights returned to the ranchers legislatively we enlisted the aid of Senator Mike Lang (R-Malta) and assisted him in drafting a bill to address this issue. Unfortunately, the draft was reviewed by Helena insiders and was gutted until it was totally unacceptable. Since a committee hearing was imminent we decided the best action would be to table the bill. Senator Lang then shifted his focus to a study bill where the Federal Grazing District water rights will be discussed by the Water Policy Interim Committee. They could then draft legislation to correct this travesty and introduce it in the 2023 legislative session.
As we worked through this process what became abundantly clear was that most of the people involved did not understand the water rights situation concerning Federal Grazing District allotments. This included bureaucrats, lawyers and lobbyists that were considered experts on water rights issues. One of the reasons for this is that most of the water laws and court rulings involve water use conflicts which primarily occurred between irrigators using live streams. There have been few if any conflicts (other than with the federal government) between stock water users on Federal Grazing District allotments. Therefore, stock water use on these allotments was not even addressed in the Montana Water Use Act of 1973.
The federal Taylor Grazing Act (TGA) of 1934 authorized the creation of Federal Grazing Districts (six in Montana). All 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, the TGA allocated federal allotments to adjacent stock raisers and recognized and protected all vested water rights that existed prior to passage of this Act. It also established a fee payment for the exclusive grazing right by the stock raising allotment holder (the rancher does not lease the right to graze).
The stated goals of the TGA 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 habitat for wildlife. Due to the successful private/federal partnership that evolved from this Act, all these goals have been met. Now the BLM wants to destroy this unique relationship by taking away the ranchers' water rights. The rancher loses a vested property right in exchange for a privilege that can be taken away at any time for any reason. The BLM does not want our water they only want control. While they may continue to let us use the water, the non-government organizations (NGOs) will be digging into their bottomless war chests and turning loose their hoards of legal beagles to sue the BLM to remove our livestock from the federal range. It doesn't take a rocket scientist to know what will happen!
The water situation on these federal allotments is unique. In most cases there are no live streams and few permanent natural water impoundments. These areas were not suitable for homesteading mainly because of the lack of reliable water. The allotments are supplied by intermittent atmospheric water (rain and snow) that generally comes in abundance in the spring, resulting in floods and erosion. Unless the spring runoff is captured in impoundments the range usually is totally dry by mid summer. Originally, the impoundments were reservoirs built in the intermittent stream channels. They proved to be impractical particularly in the clay and sand soil types as they would silt in and wash out. In these areas pits have replaced the reservoirs for watering stock. Pits are holes dug in a basin where just enough runoff may fill it each year. As they silt in they are refurbished or replaced. The BLM inspects the sites of the stock water impoundments proposed on federally managed lands. If it passes inspection, a permit for construction is issued, a contractor is hired, and once completed it is paid for with the rancher's range improvement funds or, in some cases, with the rancher's own money. The TGA states that improvements, like impoundments, are appurtenant to the rancher's private property.
Since the Water Use Act of 1973 did not address the federal allotment stock water rights, the bureaucrats tried to fit these rights into an irrigation template. It did not work. Stock will drink wherever the water is available. This can change day to day, season to season or year to year. A new report form needs to be developed that addresses stock water rights on these allotments.
Hopefully, the people working on resolving these water rights problems will take time to familiarize themselves with the unique situation involving stock water use on the federal allotments so the stock water rights will remain with the rightful owners, the ranchers.