State’s Inaction Detrimental to Waterways, Aquatic Life, and Montanans
Last week, Upper Missouri Waterkeeper, Alliance for the Wild Rockies, and Save the Bull Trout filed a complaint against Montana Fish, Wildlife and Parks (FWP) for failing to exercise and enforce Murphy Rights and Instream Reservations, 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.
“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.”
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. However, in 1969, the State of Montana recognized that keeping water in streams benefits fish and wildlife, and established instream flow protections, also known as Murphy Rights, as legal water rights. Today, FWP possesses Murphy Rights and instream reservations for the public trust to benefit aquatic life and recreation that should be applied to mitigate low flow conditions from harming fish and wildlife.
Since 2021, by direction of Governor Gianforte, FWP has failed to apply its instream flow rights, despite historic drought across Montana’s river systems, plummeting trout populations, and the value gained from bolstering instream flows during low-flow conditions. In a letter to the FWP Director, the Governor stated that even with historic drought, “it is apparent that a call would provide questionable, if any, measurable benefit to the resources in question. As such, I am directing FWP to forgo a call for water on the Smith and Shields Rivers.”
“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.”
In the summer of 2022, FWP issued a new Water Right Call Protocol. The Protocol, which skirted formal rulemaking, states that “there are many basins where we do not consider call as there are alternative approaches to maintaining instream flow.” The new Protocol includes a four-part analysis FWP must make before issuing any call for an instream flow right, and fails to examine how aquatic life or recreational uses are protected in the absence of instream flow rights.
Montana’s Constitution states: “[a]ll surface, underground, flood, and atmospheric waters within the boundaries of the state 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.” (Mont. Const. art. IX, § 3(3). 29). The Constitution also guarantees citizens and requires state agencies to protect a “clean and healthful environment,” which was recently reiterated in Held v. Montana. 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.
The groups are requesting the Court:
- Declare that Montanans’ constitutional right to a clean and healthful environment includes healthy rivers with minimum flows that sustain aquatic life and fisheries;
- Declare that FWP’s failure to make calls on its instream water rights violates its constitutional duty to “maintain and improve and clean and healthful environment”;
- Determine that FWP’s failure to enforce its water rights breaches its obligation as the trustee of Montana Public Trust for water resources and fisheries; and
- Determine FWP’s Protocol is unlawful, arbitrary and capricious, and should be vacated for all FWP decision-making.
Upper Missouri Waterkeeper, Alliance of the Wild Rockies, and Save the Bull Trout have a vested interest in protecting Montana’s valued water resources and ensuring that state executive agencies fulfill their duty to protect and enforce water rights held in public trust, including exercising its water rights to protect our waterways now and into the future.