Another round of adjudication has begun for historic water rights in the lower Clark Fork River basin, and the Water Court cautions water rights owners against delaying their participation.
On Tuesday morning, representatives of the Montana Water Court and the Parsons, Behle & Latimer law office hosted an informational meeting on water rights, particularly in the lower Clark Fork River basin, for which the Montana Water Court issued a preliminary decree on Oct. 9.
About a week ago, water rights owners in Basin 76M, the lower Clark Fork between the Blackfoot and Flathead rivers, received notification of the decree, and some might be wondering what they need to do.
Water Court administrator Sara Calkins said those people who received a notification with an abstract attached are directly affected by the decree. An abstract contains issue remarks from the Montana Department of Natural Resources and Conservation highlighting any problems related to water rights created before July 1, 1973.
The issuance of the decree started a 180-day objection period when water rights owners can file an objection to clear up their own water rights or object to others. The objection period will end on April 7, 2025, and even though the period can be extended, Parsons, Behle & Latimer attorney Abby Brown urged people not to delay filing their objections.
“While there is the ability to request an extension of the deadline - and it’s an extension of the entire basin, not just one water right - you should not wait if you’re going to seek legal counsel or a (water rights) consultant. Don’t wait until April 6 because it’s going to be hard to look at the 3,000-plus claims within your area to make a determination of whether you should object,” Brown said.
Water Court judge Stephen Brown explained why the decree process is happening now, even though a decree was first issued for the lower Clark Fork in November 1984.
Prior to 1973, water rights records were in disarray. Landowners claimed water all over the state for at least 100 years, and disputes among small groups of water rights owners were settled separately in various district courts. The 1972 Montana Constitution mandated a uniform water-use system, so the Montana Legislature created the Water Court in 1979 to evaluate, consolidate and formalize more than 240,000 historic water rights in 85 river basins across the state.
Water rights filed after 1973 were recorded with the DNRC, so they don’t have to be proved, and adjudication isn’t necessary. If there is any question, people should contact the DNRC water rights division.
The adjudication has taken 45 years so far, and Judge Brown said it would take at least 10 more years, partly because some basins have to be re-evaluated. The lower Clark Fork originally received a decree in 1984, but the Water Court ended up issuing a re-examination order. That happened to several basins, and 25 are still awaiting re-examination, including the upper Clark Fork above the Blackfoot River.
“There was a big flurry in the ‘80s when people said let’s go do all this work. It got challenged by the United States and the Department of Fish, Wildlife & Parks saying, ‘This is not being done thoroughly enough. People are vastly over-claiming their water rights; they’re being broad-brushed, and it’s not an appropriate adjudication,’” Judge Brown said. “Things kind of stopped in the late ‘80s, and the Legislature said DNRC needs to be more rigorous.”
As part of that early ‘80s push, the Department of Natural Resources and Conservation collected information from water rights owners, which is collected into a summary report for each basin when the decree process starts. The Water Court will use this report and the 1984 decree, along with all the information provided in objection filings, to come up with the final decree.
“If people ignore the process, they run the risk of losing their water rights, and it’s very difficult to get it back with the same priority date and the same elements it had before,” Judge Brown said.
One woman said she’d received a notification that listed several people as co-owners. WGM engineer Kyle Mace said that situation was becoming more common around towns like Missoula because formerly irrigated farms have been sold and subdivided. Since the water right goes with the land, all the new homeowners can end up as co-owners of the water right, so they should get together to discuss their options. That can create another problem if the land title isn’t transferred property because the owners might not be notified that their water right is being evaluated.
For those wanting more information, the Water Court will hold two informal meetings on the objection process: one on Nov. 13 at 6 p.m. at the Dennison Theater on the University of Montana campus, and one online on Nov. 19 at noon.
“What the water court - and the adjudication process - is doing is saying, ‘Who has what existing water rights that are constitutionally protected and how much water do they have,’” Abby Brown said. “Montana’s a headwaters state and I’m sure you’ve seen what’s happening in other Western states. It’s only a matter of time until downstream states start looking at Montana and saying, ‘What kind of water do you have? Are you using it all? Can we make a call on Montana?’
“When we get to a final decree, what you have are state-based water rights, compacted water rights, federal reserve water rights, all in one decree that is enforceable.”
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com .
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