©2016 Montana Land and Water Alliance

This post is designed as a “how to” discussion of getting your water rights in order, and is in direct response to many who have received a letter with a “Water Rights Abstract” from the MT Department of Natural Resources and Conservation (DNRC). It is extremely important that people pay attention to these letters and forms as they represent one of the last chances to set the record straight on the existence and validity of each individual’s water right.

The “water claim review process” is a part of the on-going Montana General Stream Adjudication, wherein all pre-1973 water rights are examined and affirmed.  These water claims were to have been filed by  April 30, 1982 and for those missing that deadline, no later than July 1, 1996.  The rules for filing and examining a water claim are described at this link.

The claims being examined by the DNRC right now include:

  • BIA 1982 claims for Flathead Irrigation Project (FIP) project water on behalf of project users
  • Individual  pre-1973 secretarial water rights and ground water claims and similar but late claims filed by July 1, 1996
  • FJBC water claims filed for the FIP by the FJBC in 1982

The individual and FJBC claims should be examined by each individual and by the FJBC no later than December 2016 to check for accuracy and completeness.  All of these claims will be put into a Summary Report for the Water Court by the end of January 2017.

Thus it is extremely important for everyone to look at the forms to ensure their claims are accurate, to correct them as necessary, and/or to register a protest to DNRC’s view of those claims  before November so this information gets into the summary report.  The next time you will be able to protest is when the preliminary decree is issued which could be issued in mid 2018, and those protests will be in front of the water court.

The CSKT Compact claims and the BIA 2015 Compact claims are not being examined right now because the Tribes secured a delay in examining those claims until July 1, 2018.  Not only did the CSKT claim everything in the claims listed above and more across western and eastern Montana, but the BIA 2015 claims for the FIP are claimed for the CSKT, not the project users as was done in 1982.

Because the Summary Report for the Water Court must, of necessity, include every claim, the BIA 2015 and CSKT Claims will be included in the January 2017 Summary Report but without the standard DNRC examination.  In other words, the DNRC will consider these claims as “valid” in the Summary Report without having examined them as everyone else.

We presume that if the Tribes do not get the CSKT Compact passed by Congress, their claims will be examined by DNRC using the same rigor as they examined all other water rights. However, given the blatant DNRC bias in favor of Tribal water claims over those of state citizens, we cannot be sure they will complete a due diligence examination of Tribal claims.

The Water Rights Abstract

The “Review Abstract of Water Right Claim” has been received by many and this is the form that needs to be examined carefully.  Notice that an asterisk (*) has been placed next to each item that has been changed according to the Supreme Court Rules promulgated for change.

Here are the key items to examine in your review abstract:

  1. Owner
  2. Priority Date–this is the date that your water right was first put to use historically
    1. Enforceable priority date–this is the priority date of your water right in times of a drought, where earlier uses will be enforced before this priority date.  On your abstract this date may not be the same as the original priority date due to a late filing of the claim or other reason
  3. Purpose
  4. Flow Rate: this should be in gallons per minute.  We are finding in our review of some of these abstracts that DNRC has reduced this flow rate from its historic use
  5. Volume and maximum volume
  6. Maximum Acres
  7. Source Name
  8. Point of Diversion and means of diversion
  9. Period of Use
  10. Place of Use
  11. REMARKS. This is an important section to your abstract and describes “issues” that the DNRC has with your water right, or notes on your water right. While many would like to believe that the DNRC as a state agency is required to protect Montana water resources on behalf of its citizens, we have observed first hand the state’s failure to protect the irrigation water rights of all of its citizens in western Montana in favor of either the CSKT government or environmental community.  This bias is documented, and unfortunately is appearing in the recent water rights letters sent to many in Lake, Sanders, and Flathead County. Here are a few examples of this bias appearing in “issue remarks” on your water rights abstract:
  • “The DNRC is unable to tell  whether this water right belongs to the individual or the CSKT”
  • “The flow rate of this claim has been reduced to…”
  • “This water right is located, in whole or in part, within the boundary of the Flathead Indian Reservation”
  • “Stock watering purposes at the rate of 30 gallons per dy per animal unit; animal units shall be based on reasonable carrying capacity and historical use of the area serviced by this water source”  This may also appear under the “volume” or “maximum volume” category above.

Each of these “issue remarks”, and others, may pose clear problems for the water user.  For example:

  • The state of Montana owns the water for the beneficial use of its citizens, and the compact is not passed or ratified, so there should be no question as to who owns the water.  This statement must be protested!
  • If the flow rate of this claim is reduced, there must be a reason given, not just “according to the rules”.  Each user with this statement on their abstract must request in writing the reason for the flow rate or volume reduction and register an objection to the rate reduction for the record.
  • Your water right is located ON PRIVATE LAND within the boundary of the Flathead Indian Reservation instead of just within the boundaries
    • This is important to change because your water right is a state-based water right and subject to changes to state law. Remember the Compact rejects state water law and leaves everyone vulnerable to the whims of the CSKT.
  • For stockwater rights with the language on “reasonable carrying capacity” it is important to note that this is a management directive that has been placed into your water right abstract.  It implies that someone is going to count your cows every year and assess your carrying capacity.  What if you are feeding cows on a particular range unit as opposed to grazing them?  The only thing that matters in this statement is historic use.  Remember that is is a water rights examination to affirm water rights and their use, not tell you how to use it or to manage your historic use of water.
    • Language regarding “carrying capacity” should be stricken from your water rights abstract by means of protesting the language on the abstract itself.  We would recommend that the language be changed to “…30 gallons per animal unit per day…based on historic use”

Any comment relating to the non-ratified CSKT Compact on your water right claim form is simply irrelevant to your claim and should not be on any paperwork related to your water right.  If it is, you must protest this statement.

Looking up Your Water Right and Background Information

You can look up your water right and all the supporting background information for it by following these steps:

  1.  Go to the DNRC Water Rights Query System found at this link: http://wr.msl.mt.gov/
    1. Look up your water right by name, by the water right number on your abstract, or by “geocode”.  Press the “search” button
  2. Once you press ‘search’, you will be taken to a table that shows general information for  your water right.  When here you can view the MAP, ABSTRACT, and DOCUMENT.
    1. The MAP shows the location of your water right;
    2. The ABSTRACT shows the review abstract of your water right
    3. The DOCUMENT shows all of the background information on your water right, including the history of water use and land title changes, your original filing, written communication to or from DNRC on the water right, water rights changes, and other historical information for your water right.  The DOCUMENT file is very important to review.*

It is important to review this file especially if you disagree with or have concerns about any of the changes made to your water right by the DNRC.

Summary: Get Your Water Rights in Order!

In conclusion, we recommend that everyone undertake this review of their water abstracts and forms presented to you by the DNRC.  At a minimum you should call the individual named in the cover letter and acknowledge receipt of the abstract and request an extension of time to ensure completeness and accuracy of the abstract.  Time is of the essence as the “window” for making changes or protests to these abstracts will likely close sometime in late October or late November.

If you need assistance, please contact us through this blog or by calling 406-552-1357.

*Note: many people are having difficulty opening the document files. Basically the computer needs to use Java and to load two “plug-ins” in order for you to see these files.  You will need to have Java on your computer (most of them do).  Click “run” for the first plugin to show up, and “allow” for the next one.  Your file should then appear.