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
``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
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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