Who: Three organizations, Upper Missouri Waterkeeper, Alliance for the Wild Rockies, and Save the Bull Trout teamed up to challenge the Montana Fish, Wildlife and Parks’ failure to exercise and enforce existing Murphy rights and instream reservations, which are water rights held in the public trust to protect fisheries and recreation, despite persistent drought, low river flows, and documented declines in the state’s wild trout fisheries.
The lawsuit alleges that FWP, as the state agency responsible for instream flows and aquatic wildlife, has a constitutional duty to use all tools on its toolbelt to improve river health based on science, not voluntary planning or political decisions. The lawsuit also seeks to overturn FWP’s new Instream Flow Protocol, a new 2022 policy directive from the Governor’s Office that restricts the agency’s ability to apply instream flows based on unscientific metrics.
What: The group filed a legal complaint challenging FWP’s failure to apply the public’s instream flow rights in Montana’s First Judicial District Court in Helena, MT.
Where: FWP holds Murphy rights on all 12 “blue ribbon” streams in Montana, including Big Spring Creek, Blackfoot River, Gallatin River, West Gallatin River, Madison River, Missouri River, Rock Creek (Clark Fork), Smith River, Yellowstone River, and the Middle, South, and North Forks of the Flathead River. FWP also holds instream flow reservations on a variety of other Montana rivers.
Why: For the past several summers, FWP hasn’t used its Murphy Rights or Instream Reservations to bolster water flows, even with extreme drought and declining wild trout populations. In 2021, Governor Gianforte directed FWP to ignore these rights, claiming that a call for water would provide questionable benefit. Then, in 2022 FWP released a new “Water Right Call Protocol” that essentially makes it extremely difficult for FWP to call for water, and disregards the impacts to aquatic life.
It’s no secret that Montana’s watersheds are experiencing chronic and persistent drought, increasingly slim snowpacks, hotter temperatures, and more demand for water than ever before. This summer portions of waters in the Clark Fork Basin were approaching 0% percentile average flows, meaning literal dewatering of streams was occurring based on historic flows. Likewise, in several free-flowing reaches of the Upper Missouri Headwaters subbasin, rivers like the Big Hole and Jefferson were well below historic averages and less than 5% percentile of the average.
These climactic realities have been and continue to create serious challenges for river health, including the most sensitive uses of Montana’s waterways, its aquatic life, including our keynote wild trout fisheries.
Bolstering instream flows during summer conditions is an important tool for mitigating the worst ecological impacts of low-flows. Keeping water in rivers helps cool those waterways and keeps vital aquatic habitat available. When rivers become warmer, their ability to carry dissolved oxygen – a critical element for supporting fisheries and health bug life – also decreases. Those same warmer conditions also play a negative role in encouraging nuisance algal blooms, which also synergistically deplete dissolved oxygen and degrade aquatic habitat, disrupting food sources and shelter for aquatic life.
The good news is that FWP has developed science-based criteria – most notably its Wetted Perimeter Test – describing a range of flows based on protecting instream ecology. Flows below the Test’s lower inflection point are undesirable based on their probable negative impacts on food production, bank cover, and spawning and rearing habitats, while flows at and above the upper inflection point provide near optimal conditions for growth and propagation of fish and aquatic life.
Other Frequently Asked Questions:
What are instream flows?
Instream flows refers to the amount of surface water in a river or stream that’s not diverted for other uses (agriculture, drinking water, etc.) and is necessary for maintaining healthy aquatic ecosystems and recreational opportunities. Instream flow is also a legal term of art, defining a particular class of water right whose purpose is to support a waterbodies’ local ecology.
What is a Murphy Right?
In 1969, the Montana legislature enacted a law to allow the Montana Fish and Game Commission to file for water rights on the unappropriated waters of 12 “blue ribbon” streams in order to maintain stream flows necessary to preserve fish and wildlife habitat. These appropriations became known as “Murphy rights” after the principal bill sponsor.
How do water rights work in Montana?
Like most western states, Montana’s water rights are based on the prior appropriation doctrine, or “first in time, first in right” for beneficial uses of water.
Today, FWP possesses Murphy Rights and instream reservations for the public trust to benefit aquatic life and recreation that should be applied to prevent low flow conditions from harming fish and wildlife. It is also important to note that a water right simply grants the right to use water in a particular way. Under Montana law water itself is owned by the people of the state.
What does Montana’s Constitution say about this?
The state’s constitution says all waters are “the property of the state for the use of its people and are subject to appropriation for the beneficial uses as provided by law.”
The Constitution also guarantees citizens and requires state agencies to protect a “clean and healthful environment,” a fundamental right that was recently affirmed by the Montana Supreme Court in Held v. Montana. In the case at-hand, plaintiffs are arguing that FWP has a constitutional duty to be anticipatory and protect Montana’s river systems and the aquatic life they support by and through implementation of any available instream flow rights based on best-available science.
In short, the thrust of the case is that Montana’s waterways are experiencing unprecedented water quality and quantity challenges. In the face of this troubling ecological reality, argues FWP has a nondiscretionary duty to use all the tools on its tool belt to maintain and improve the health of Montana’s rivers and aquatic life by using its instream flow rights; failing to do so is a violation of its constitutional duty.
What do the conservation organizations hope to get out of this lawsuit?
The plaintiffs seek several important declarations as a matter of law. At its most basic the lawsuit seeks a determination that FWP is violating the state constitution by not using its water rights to bolster low flow conditions and prevent the worst harms from occuring..
Specifically, the groups are asking the Court to:
- Declare that Montanans’ constitutional right to a clean, healthful environment includes keeping rivers healthy with enough flow to support fish and aquatic life.
- Rule that FWP’s failure to enforce its instream water rights violates its constitutional duty to protect the environment.
- Find that FWP’s inaction breaches its role as trustee of Montana’s public water and fisheries.
- Strike down FWP’s current Water Right Call Protocol as unlawful and arbitrary.
Why should you care?
FWP’s inaction on Murphy rights and instream flow reservations means less water in rivers – negatively impacting aquatic life, recreational opportunities such as fishing and floating, and Montana’s outdoor economy – all things we value as Montanans. This lawsuit is about holding FWP accountable for doing its job to protect Montana’s public trust resources.