Groups sue to force FWP to enforce river flow minimums
Laura Lundquist
(Missoula Current) In recent years, water levels have dropped hugely each summer in several Montana rivers, threatening resident fish, but Montana Fish, Wildlife & Parks has refused to enforce its instream water rights. Three groups are suing to change that.
Attorneys for Upper Missouri Waterkeeper, Alliance for the Wild Rockies and Save the Bull Trout last week filed a complaint in Lewis and Clark County district court against FWP, saying FWP is violating the public trust doctrine and Montanans’ constitutional right to a clean and healthful environment by refusing to make calls on junior water rights owners to make them stop using water.
“Montana’s rivers are incredibly stressed - from extreme drought, unchecked pollution, and declining fish populations - yet the very agency tasked with protecting healthy fish and wildlife is choosing politics over science,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “At the moment when our rivers and streams need water the most, Fish, Wildlife and Parks has refused to act. Protecting the public trust isn’t optional, it’s their constitutional duty.”
In the complaint, the attorneys use the Blackfoot River and the upper Missouri watershed as examples of how FWP has abandoned its responsibility to protect fish when it has the means to do so.
The first instream rights FWP acquired were Murphy rights - named for the Montana legislator who carried the bill in 1969 - which were unappropriated rights on a dozen Montana streams that were given a seniority date of 1970. The Blackfoot, Gallatin, Madison and Smith rivers are a few that have Murphy rights.
Many streams also have basic instream reservation rights with very recent seniority dates of 1985.
Then in 2008, with the demolition of the Milltown Dam, the state of Montana got the hydropower water right on the Clark Fork River with a seniority date of 1904. That was important because owners of older water rights have priority for water over people with newer water rights and when water is low, senior water rights holders can “make a call” that requires junior water rights owners to stop using their water until the senior owner gets their full amount of water. This was the oldest right FWP owned up to this point.
Then as part of the Confederated Salish and Kootenai Tribes water compact agreement ratified in 2015, the tribes became co-owners of the Milltown water right with FWP. The Milltown right was also split into two rights, one for the Blackfoot River and one for the Clark Fork. There was a 10-year grace period after the water compact was approved when the Milltown rights wouldn’t be enforced. But as of April this year, once the Blackfoot flow at Bonner or the Clark Fork flow at Turah Bridge drops below around 1,000 cfs, FWP and the tribes should be able to ask junior water rights holders in the Blackfoot basin to stop using water until the flow increases again.
But FWP hasn’t made a call on either the Blackfoot or the Clark Fork River, even though the Blackfoot flows dropped below the Milltown right enforcement level at the end of June. FWP could have enforced the Murphy right on the Blackfoot even earlier in June or last year.
This isn’t the first time FWP has refused to enforce its water rights. The pivotal example was in June 2021, six months after the Gianforte administration took over, when FWP wanted to make a call on irrigators on the Smith and Shields Rivers. The governor stepped in and required FWP to provide proof that the call would benefit the Smith River. No other water rights owner has to provide proof of benefit in order to make a call.
Montanans protested the governor’s action so he had FWP develop a call protocol, based on several conditions including streamflow, local conditions and whether a basin has a drought response plan or water commissioner. For basins with a response plan or commissioner, FWP is not allowed to make a call. That means FWP won’t enforce its rights on the Blackfoot and Big Hole rivers, even though all drought management plans are voluntary.
The plaintiffs say FWP’s call protocol rule was developed without public input and the use of it is therefore unconstitutional. They point out that Montana water law says if a water-right holder doesn’t use or enforce their right, the right could be considered abandoned and it could be awarded to someone else. Also if other water-right owners had to follow such a protocol, the related industry such as agriculture would fight back.
The plaintiffs also argue that Montana has been in a multi-year drought due to climate change and that trend is only going to worsen. As a result, trout numbers are already dropping in many stretches of Montana’s rivers. The state is required to preserve and protect Montana’s fish and wildlife for this and future generations under the Public Trust Doctrine. Allowing streams to drop to a trickle without enforcing instream rights is a violation of the public trust.
“FWP still has not made a call on all of its instream flow rights, begging the question: if the agency will not make call during the largest drought and lowest river flows on record, when would it ever do so?” the complaint said.
“Montana’s water rights are a part of the public trust, like our right of stream access. Our constitution requires that FWP do everything in its power to protect our fragile and critical resources," said Mike Garrity, Executive Director of the Alliance for the Wild Rockies. “FWP simply cannot let our state-owned water rights go unused in the heat of the summer, when they are needed most for instream flow, or fish will die.”
The plaintiffs ask the court to declare that the right to a clean and healthful environment includes maintaining minimum river flows for aquatic life and that FWP should enforce its instream rights as a matter of public trust. They also ask the judge to suspend the use of FWP’s protocol so the water rights can be applied as Montana water law dictates.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com