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Apr 6, 2017: Times Have Changed – The Evolution of Montana’s Water Adjudication Process

by Nancy Zalutsky

Great change has occurred in the Montana water rights adjudication process in the last 25 years. This transformation has occurred because of differences in the amount of water available for future use, Montana land use, and technology.  In the beginning, the adjudication started as a local, personalized process using field investigation and personal interviews. Now, it is centralized in Department of Natural Resources and Conservation (DNRC) regional offices and the Helena Adjudication Bureau, and relies on document review, Claims Examination Rules and an examination manual spanning over 600 pages.

Montana’s first attempt to organize historical water rights began in the Powder River Basin in 1973. The Powder River existing water rights were documented by DNRC personnel who met with water users, performed field investigations and documented the rights by water user declaration. After six years of intensive field work, aerial photo interpretations and interviews, the Powder River basin was still not completed so the Legislature modified the Montana Water Use Act to set up the current system of adjudication, which began with an order from the Supreme Court requiring every person claiming ownership of an existing or historic water right to file a claim by April 30, 1982. Over 200,000 claims were received by the April 30, 1982 deadline, and 4,986 late claims were filed by July 1, 1996, the final deadline set by the Legislature in 1993.

At first, the claim filing process and the adjudication were user friendly. Ted Doney, one of the drafters of the Act, wanted farmers and ranchers to be able to get through the adjudication process without “hired guns.” Mr. Doney later disdainfully referred to the Act as the “Full Employment of Water Lawyers Act,” but the law and the subsequent amendments have not been solely responsible for the formalization of the process. Part of that change is due to other forces. Family farms and ranches were the norm in the 1970s and 1980s, but they are being replaced by owners who do not live on the ranch year round and owners of partitioned land who rely on lawyers and consultants to help them understand their water rights. Also, the Legislature sped up the pace of the adjudication by changing the law in 2005 to add funding and staff to the DNRC and the Water Court and setting benchmarks for the examination and adjudication of claims. The shorter time frames for examination and adjudication may not always allow farmers and ranchers the time to work around harvest, calving or other hectic times, meaning less direct participation by the actual water users.

Lawyers and consultants are also now more involved because increased competition for water has raised the stakes for everyone. As shown on the map below, many basins are closed to new appropriations because they are over-appropriated or subject to a federal compact. Closed basins make it extremely expensive for an agricultural operation to become more productive when it requires increased water supply, so water users need to protect every drop of their historic rights.

Montana-Closed-Basins-_-Water-Sage.png
Montana Closed Basins

This competition for water, combined with an influx of new water users and an accelerated timeline, undoubtedly changed the process. Water users who had known each other all their lives and had handshake agreements about how water was used were often more amenable to settlement than current water users who may be one of a number of multiple owners of a single water right who don’t know their co-owners or the opposing parties. The generational transition of ranch owners and operators, and growing proportion of large land owners who do not live on and work the land has exacerbated this challenging dynamic.

Different Stakeholders
When I started working in a water rights law firm in 1992, the clients were usually ranchers or farmers. By that time, many ranchers had hired attorneys to help them with the adjudication of their water rights. In some cases, the adjudication stirred up long-simmering water feuds with numerous claimants and objectors. In other cases, the water right claimants just wanted to continue using water as they had for several generations. In either case, adjudicating water rights became time-consuming and complex fairly quickly, and many ranchers just didn’t want to deal with the paperwork. I once worked with a rancher who never opened his mail from the law firm unless I called him and told him I needed a response. Another client could only be reached by leaving a message with someone else. A third rancher, after surveying a conference room full of his water rights documents, turned to me and said, “Sometimes there just isn’t enough beer in the world.” I couldn’t have agreed more.

Nowadays, I often work with seasoned ranch managers and land developers who have cell phones, voice mail and land lines as well as email and Internet access. These modern day water users recognize the adjudication as a necessary evil to preserve their valuable water rights. The difficulty for them is in proving historic use. Unfortunately, ranch managers and irrigators today may have only been on a property for 20 years or less, and cannot provide proof of irrigation practices before 1973.

Their employers are often fairly new owners who know very little about the historic use of water on the land. When I started in Montana water rights, water users had helped irrigate the land as teenagers or learned the ropes from their older relatives and had rich memories of land and water use. Long-time irrigators were treated as expert witnesses, just as consultants and hydrologists are today. Now, water users must rely on consultants and attorneys to gather evidence to prove historic use.

The newest stakeholder in adjudication proceedings does not own any water rights at all. Montana Trout Unlimited (MTU), a member organization, had previously acted in Montana’s water adjudication only through litigation over Water Court decisions and participation in the Water Right Adjudication Advisory Committee, legislative hearings, and the Water Court’s rule-making proceedings. In 2007, when MTU filed objections to water rights in the Big Hole Basin, the Water Court dismissed them and held that MTU failed to demonstrate an ownership interest in water or its use that was affected by the decree. Instead, MTU’s interest in filing objections in the Big Hole Basin was to protect the Montana Department of Fish, Wildlife and Parks’ (DFWP) instream flow reservations and fulfill its goal of ensuring that its members could continue to fish the river.
The Montana Supreme Court overruled the Water Court decision and allowed the MTU objections to proceed. Although no other non-owner objectors have appeared to date, the MTU decision has the potential to add other groups who don’t own water rights.

Changes in Land Use

Ditch-flowing-through-subdivided-ranch-_-Water-Sage.jpg

Ditch flowing through subdivided ranch

Changes in land use, especially in the fast-growing areas in the western half of the state, have led to subdivided land and water rights. Many large ranches have been subdivided into 20-acre ranchettes or residential subdivisions where water rights are shared or co-owned by people who have never irrigated their land, or have been acquired to feed municipal suppliers. Some land developers were careful to apportion water rights to lots that were formerly irrigated while others simply apportioned water by acreage without regard to whether the land had been or could be irrigated.

The division of water rights became so problematic that the legislature enacted a law requiring that the developer of a subdivision with lots averaging less than 5 acres reserve the water rights and transfer them to a single entity, i.e. a water users association, or reserve and sever all surface water rights from the land. This process has distanced water users from their water rights.

New Technology
Technology has changed water rights adjudication by speeding up communication, adding precision to mapping and increasing accessibility to documents.

DNRC reviewers formerly verified irrigated acreage by placing Mylar, a translucent polyester film, over an aerial photo and tracing around the land that appeared irrigated. Then, a dot grid was laid over the drawing and the acreage was calculated by counting the dots and using a multiplier to account for the scale of the drawing.  Those days are clearly gone.  The DNRC now uses a GIS program and digitized aerial photos to calculate acreage to hundredths of an acre. One one-hundredth of an acre is 435.6 square feet, or approximately a 21-foot square.

Although new technology has facilitated a transition away from people-driven anecdotal information about water use to standardized, centralized approaches to understand water use, it has helped to speed up the process by providing better means of communication and disseminating decrees more widely. The widespread use of computers has made basin decrees more widely available. Early decrees were only available in hard copy printed on long sheets of dot matrix paper. The public could see them at the Water Court, the DNRC main office in Helena, and DNRC regional offices and District Courts in the basin. In addition to DNRC and court offices, decrees are now available online.

In the early nineties, ranchers did not have cell phones or even answering machines. In order to contact clients, I would sometimes show up at the office and make phone calls at 7 am. Most of them were surprised to get a call from their attorney’s office that early in the day, but it was the only way to reach them without using what we now call “snail mail.” Now, communication is far more efficient with email, cell phones and texting.

Water Rights Adjudication Today
Change is inevitable in the water rights adjudication, a process that may take 50 years to complete. Water rights adjudication has been changed by an expanded pool of stakeholders, new technology, changes in land and water use, water scarcity, Montana Supreme Court opinions and legislative amendments to the Montana Water Use Act.  

In the early 1970s, Powder River water users were able to meet with DNRC staff and show them how water was used on their land. Today, DNRC staff examine claims from their desks in regional offices and the Helena Adjudication Office using digitized aerial photos. Because downstream states demand water in increasing amounts, the Montana Legislature has increased the pressure to speed up the pace of water right claims examination, issuance and resolution of water right decrees. Until Montana has completed adjudication of all water rights in the state, it cannot defend its water use against other states' demands or calls on water. To that end, the Legislature increased funding for the DNRC and the Water Court and set benchmarks for completion of claims examination and adjudication. This necessitated the creation of the DNRC Adjudication Bureau in Helena instead of claims examiners that were part of local regional office staff.

What has not changed is the importance of water rights and the claims examiners’ need to interact with stakeholders. The DNRC examiner will often send out questionnaires or letters to obtain additional information to clear up errors or discrepancies in statements of claim. They will also send out review abstracts for claims, so water users can review any changes.  The Water Court will notify water rights holders by mail when the Basin Decree is issued. That’s why it is critical to make sure that owner name and address are correct on water right claims abstracts. In my experience, while these crucial aspects of water rights are the easiest to find and adjust, many are incorrect.

If you don’t have the time, patience, or specialized knowledge to protect your water use on your own, Ponderosa Advisors’ staff can help you sort out your water rights. Our team is made up of highly experienced consultants and GIS experts. Combining over 50 years of experience in water, our knowledge spans across several Western states and our role involves more than generating a report and handing it over.  We can inspect the land, document evidence, and take into account additional variables like the impact of adjacent properties, upstream senior water rights, seasonal elements or legal factors (past or pending litigation. While the water adjudication process may seem intimidating to navigate, there are lots of resources available to water rights holders today. And that’s an evolution we should all embrace.

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