Bridge easement lawsuit could impact MT’s stream access law

photo courtesy footloosiety/Flickr

photo courtesy footloosiety/Flickr

A lawsuit concerning a bridge on a county road could lead to major impacts on Montana’s stream access law in a case pitting private property advocates against prominent public access groups.

The state Supreme Court is considering the lawsuit over easements now. Atlanta-based media mogul James Kennedy owns a sizable piece of property on the Ruby River. Several county bridges cross the river on his land and a district court judge found it legal for Kennedy to fence off access to the river on one of those bridges—because of the type of ‘prescriptive easement’ on the bridge.

Public lands access advocates appealed that ruling to the Montana Supreme Court. Now, before the high court, Landowner James Kennedy is arguing a U.S. Supreme Court Decision on a case between Montana and PPL Montana from last year means the state’s stream access law should be thrown out or limited.

President of the United Property Owners of Montana Marc Robbins, said the U.S. court decided the state only owns the banks and beds of rivers if the river was commercially navigable at the time of statehood.

The Ruby River and other small streams like it to not meet that criteria.

“We feel that the state erred in its taking of the stream beds years ago,” Robbins said, “and this PPL ruling definitely turned the tides of the basis for what stream access was founded on.”

Montana Trout Unlimited Executive Director Bruce Farling believes these issues were hashed out by the State Supreme Court before the Stream Access law was established in the 80s.

He said the court decided the state constitution says the public owns the state’s water and they should be able to use it.

“They told the legislature at that time, they said ‘look, the public should have access on these streams to be able to recreate on them, irrespective of whom owns the bed and bank,’” Farling said.

The state supreme court has not made any decision on the case.

Bruce Farling Commentary: “Confederated Salish and Kootenai Water Rights”

Reason is often the first casualty in quarrels over water rights in Montana. Certainly reason is being assailed in Northwest Montana where critics, including a few politicians and some conspiracy theorists are attacking proposals to settle the substantial water right claims of the Confederated Salish and Kootenai Tribes.

And that’s too bad, because the primary interests negotiating over the claims, the State of Montana, federal government and the tribes, are working hard to accommodate each other’s interests with a settlement that poses little risk to existing water right holders, including irrigators and municipalities.

In the 1855 Stevens Treaty the Bitterroot Salish, Kootenai and Pend Oreille peoples ceded more than 20 million acres of ancestral homeland to the U.S. government. That agreement, however, guaranteed the native peoples the rights to hunt and fish in all their accustomed places both on and off their Mission and Flathead Valley reservation. Because fish and wildlife require streams, lakes and wetlands, the tribes were granted a so-called “reserved” water right to protect these resources. The reserved rights also entitled the tribes to significant say regarding water allocation for all uses on the reservation. The problem has been that generations later these rights have never been quantified.

Today it appears the tribes, State and federal government are closing in on an agreement for a water compact that both enumerates the tribes’ state-based off-reservation tribal rights while also instituting a common-sense system for administering water rights on the sprawling Flathead Reservation. Though complicated in form, the water compact encompasses all of Montana west of the Continental Divide, including the Clark Fork, Swan, Kootenai and Flathead River basins. Some critics claim proposals currently on the table mean existing water users and all future development are subordinate to the tribes. They are wrong.

Though the tribes could rightfully claim rights for large amounts of water, with a priority use date that exceeds all other existing users in Montana’s first-in-time, first-in-right water use system, they and the State have instead chosen a path of mutual accommodation. For instance, agreement appears near on a proposal that would ensure an appointed board comprised of tribal and non-tribal members would handle administration of ground and surface water rights on the reservation. Further, the State is offering the tribes stored water from Hungry Horse Reservoir for future on-reservation uses that could benefit all residents in the Flathead region.

The tribes, whose primary interest is keeping water in-stream – which is important to all Montanans who fish, hunt and value nature — are seeking to improve streamflows, but mainly by protecting headwater tributaries on reservation that currently are not developed, or, by investing in cooperative water conservation that benefits fish and irrigators.

One of the biggest negotiating pieces off-reservation involves the fate of the 2,000 cubic-foot-per-second water right associated with the now removed hydroelectric dam at Milltown, at the confluence of the Blackfoot and Clark Fork Rivers. The State suggests this right be converted into a perpetual instream flow right and that the tribes have co-management authority. The tribes would like to be able to enforce about 1,200 cfs of this right, the state slightly less, when the Clark Fork gets low, meaning they would like the ability to ask upstream irrigators who have younger rights than those at Milltown to reduce their use when river flows drop below the minimal threshold — but only after conservation plans for sub-basins, such as in Flint Creek, have been developed to ensure existing users can adjust to maintaining minimum instream flows for fish at Milltown.

Other examples of mutual accommodation are found in the State’s offers to the tribe to close several heavily used drainages in the Kootenai watershed to new surface water rights, thereby protecting fish, existing irrigators and the town of Troy’s water source from new water diversions. Curiously, some Lincoln County locals oppose this proposal, even though it’s in their best interest. They apparently detect some sort of dog-whistle conspiracy that can’t be divined through rational analysis.

Any mutually agreeable compact will have to be ratified by the next Legislature then sent to Congress for approval. It’s a complicated process, wrought with arcane water-rights process, but it’s important for fish, wildlife and future water use on and off the Flathead Reservation. Further, by making the tribes’ water interests whole, all Montanans will benefit.

Bruce Farling writes on behalf of Montana Trout Unlimited