U.S. Water News Online
HELENA, Mont. -- Fish, wildlife and recreation are beneficial uses that can establish a legal right to water under Montana law, the Montana Supreme Court ruled.
In a 5-2 ruling, the justices said using water for fish, wildlife and recreational purposes can be considered equally with other uses when divvying up water rights on a river, stream or lake.
The ruling revives a number of water claims that federal agencies and the state Department of Fish, Wildlife and Parks submitted in the 1980s when the Montana Water Court began sorting out pre-1973 water rights, said Bob Lane, an attorney with the state wildlife agency.
Bruce Farling, director of Montana Trout Unlimited, said the decision will help irrigators who are worried that leaving water in streams may allow someone else to lay claim to it. Under the court's new ruling, simply leaving it in place can qualify as a beneficial use, he said.
``It's a common-sense interpretation,'' he said. ``There are going to be some people that might be dubious about it, but I don't see that much of a change.''
But some irrigators said they are worry the decision throws a finely balanced water rights system into upheaval, and will let the federal government lay claim to Montana water for downstream uses in other states.
``It opens up a Pandora's box,'' said Steve Pilcher, executive vice president of the Montana Stockgrowers Association. ``No one is going to know exactly what it means until the federal government reacts and determines what they want to do under this new authority.''
Stan Bradshaw, an attorney with Trout Unlimited, said the decision only affects claims made to the state Water Court in the 1980s as it sought to clarify old water rights.
``I don't think this is going to open up water rights to out-of-state federal claims,'' Bradshaw said. ``The federal government has already filed their claims. This can't be used to come back and file new claims.''
The decision reverses a 1988 Supreme Court decision that had been used to deny water rights to agencies seeking to keep water in streams for fish, wildlife and recreation. The 1988 ruling erroneously suggested framers of the Montana Constitution didn't allow water rights to be recognized for such uses, the majority said.
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