By Michael Howell
The County Commissioners last week decided to invite the Chief of the U.S. Forest Service Tom Tidwell to come and discuss the applications that the agency has made for instream flow water rights on Laird and Blodgett Creeks.
The County Commissioners filed an objection to the water right applications that was rebuffed by the Department of Natural Resources and Conservation (DNRC), the agency that issues water rights. The county’s objection was initially rejected for a couple of reasons, one being that the county lacked legal standing to object since it did not present any evidence of holding a water right that might be affected. It was also rejected because the county did not enter any evidence backing up its claim that the water right request was incorrectly calculated.
Deputy County Attorney Howard Recht noted that the county’s response to the agency was that the question of legal standing did not apply to an administrative hearings process. He said that DNRC’s latest response no longer referred to that issue. The agency did, however, still maintain that the county had not presented any evidence to support its objection. Recht said that the county’s only recourse would be to go to court at this point if it wanted to object to DNRC’s dismissal of its objection. He said if the agency issued the water rights and the county objected, the process would likely go into Water Court. If the county challenged the law the case would probably go into District court and ultimately to the Montana Supreme Court.
Commissioner J.R. Iman, who has water rights on Blodgett Creek, filed a personal objection as an individual and as manager of the ditch company that he manages. That objection was accepted by the agency for consideration. A hearing on the matter was recently vacated, however, as the parties continue to negotiate a settlement of the objections. According to DNRC officials, the parties have until the end of the month to resolve their differences.
Iman told the board that he had been informed that his objection to the application based on the fact that it requests more water than is in the stream most of the year was not valid since the method used to calculate the requested flows was established in state law. Any objection to that process would mean challenging the law in court and proving it to be unconstitutional.
Recht told the board that challenging the law in court would be a time consuming and expensive process. “You are looking at years and lots of money,” he said.
Commissioner Greg Chilcott said that the cost and risk of success had to be considered before taxpayer money is spent.
“But it seems our only recourse is to go to court and challenge the law,” he said. He said that the Forest Service did have a federal reserved water right that entitled it to enough water to benefit the forest land it owns. “But my understanding is the Forest Service is taking the water for fish habitat. Is that the same thing?” He said his biggest problem was the “hypocrisy of the process when they exempt themselves from their own rules.”
Commissioner Ron Stoltz said, “The Constitution states that the water is for the people. How is that when you give it to the federal government?”
Commissioner Jeff Burrows said that the Forest Service had no reason to claim the water except to exert future control over the water and deny any future water right claims on forest land above the requested instream flows. He said this was not fair to individuals and companies that might want to exercise that right.
Commissioner Suzy Foss questioned whether the federal government even owned the land. She said that the Enabling Act did not give ownership of the land to the Forest Service but simply placed it in trust to be held for the people.
Recht suggested that the Commission write the agency and invite it to come and discuss the issue before it takes action on any other streams in the county. About six more water right applications are planned to be filed on other creeks in the county. Instream water rights have already been granted on some other creeks.
Foss said that the invitation should be sent to the top person in the agency because the local Forest Supervisor was not directly involved in the decision but was only informed about it at the same time the county was informed.
The board agreed to write a letter inviting both U.S. Forest Service officials and DNRC officials to a future discussion.