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County objections to water right applications deemed deficient


By Michael Howell

The County received notification from the Department of Natural Resources and Conservation (DNRC) on March 1 that its objections to the U.S. Forest Service’s water right applications for instream flows on Blodgett and Laird Creeks are deficient. The objections are deficient, according to DNRC Water Rights Bureau Chief Millie Heffner, primarily because they lack the required facts to support the objections.

First of all, Heffner states, the county must provide the facts showing that it has standing to object. “To have standing,” she writes, “ a person must have property, water rights, or other interests that would adversely be affected were the application to be granted, and the objection must describe how the person’s property, water rights will be adversely affected.”

She notes that the county has not presented any such facts indicating any “particularized, and concrete injury.”

“General allegations of county commissioners on behalf of the county, its constituents, or public property generally is not sufficient to establish standing,” she writes, quoting case law (Gov. Schweitzer vs. 61st Montana Legislative Assembly).

She quotes the Montana Supreme Court in that case, to the effect that the judicial power of the court is limited to “justiciable controversies.”

“In general terms a justiciable controversy is one that is ‘definite and concrete, touching legal relations of parties having adverse legal interests’ and ‘admitting of specific relief through decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts, or upon an abstract proposition.’ To be justiciable, the parties must have existing and genuine (rather than theoretical) rights or interests, the questions must be presented in an adversary context, and the controversy must be one upon which a court’s judgment will effectively and conclusively operate, as distinguished from a dispute invoking a purely political, administrative, philosophical, or academic conclusion.”

Heffner notes that the county’s objections also fail to provide any facts showing that the Wetted Perimeter Methodology was not accurately measured or calculated, as is claimed. Nor did the county provide facts showing that the methodology could not be suitably applied to the stream reaches in question. It also provided no facts showing that there is not an existing population of the fish species identified as using that stretch of stream. Nor did it present any facts that a proposed water development project is feasible and reliably projected to be commenced within the next ten years or within ten years of the opening of the Basin in which the objector has or can reasonably obtain an interest.

Heffner said that these are the only proofs required by the Water Compact agreement. Although the county did submit a list of objections based on grounds other than those provided in the application validity form, according to Heffner, she is constrained to address the validity requirements and criteria in the approved process and that is what she has done. Heffner gave the county until March 18 to provide the required facts.

The county claimed, outside the validity form requirements, that “the award of a reserved water right to the United Sates Government violates Article IX, Section 3 of the Montana Constitution in that there is no support in the application to conclude that the water is being sought for the use of the people of the state,” and that it attempts to “transfer property of the state to the federal government without just compensation.” The county claims it also “pre-empts the rights of people to put public waters to a beneficial use for the people of the state” and, if granted the effects would be “to cede control of any future appropriation or change of use to the Federal Government.”

The county claims the proposed USFS water right violates the equal protection clauses of both the U.S. and Montana constitutions “in that no other person or entity, public or private, has a right to apply for a water right in a closed basin.”

The county claims that to charge a $25 fee to file an objection violates the Montana constitution’s guarantee of the right to know and participate in the actions of governmental agencies. The county claims, finally, that the application “exaggerates the amount and flow rate of water as evidenced by enclosed documentation from the USGS gauging station.”

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