Motion Requests FWP Explain Refusal to Call Senior Instream Flow Right
Last week, Upper Missouri Waterkeeper, Alliance for the Wild Rockies, and Save the Bull Trout filed an emergency motion for preliminary injunction asking the Lewis and Clark County District Court to require Montana Fish, Wildlife & Parks (FWP) to explain why it is refusing to use an instream flow right it holds for the Beaverhead River, especially when the river faces a drastic reduction in flows amidst the continued decline of the fishery.
The emergency motion comes as FWP announced that flows in the Beaverhead River will be drastically reduced to 25 cfs, with declines in flow beginning on September 1, and subsequent fishing closures as a result. FWP’s stated basis for the reduction is that the Bureau of Reclamation (BOR), Clark Canyon Water Supply Company, and the East Bench Irrigation District informed FWP of their plans to reduce flows. Current flows are approximately 217 cfs, already well below the roughly 400 cfs average for this time of year.
“FWP has systematically shirked its obligations to enforce the very water rights it owns, which have the potential to mitigate one of the many problems plaguing Southwest Montana’s rivers – low flows. Failing to protect the public trust harms small businesses, recreation, our way of life, and our rights,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “Like other state agencies, FWP continues to ice the public out of decisionmaking and has failed to explain why it’s not using the tools in the toolbelt to bolster flows and better protect our fisheries – especially in the face of low flows, poor water quality, declining trout populations, and the upcoming spawning season.”
The lawsuit, originally filed in August 2025, challenges FWP’s failure to exercise and enforce instream water rights when rivers approach minimum flows. It also alleges that FWP’s failure to act violates the Montana Constitution, violates its duty as the trustee of Montana’s public trust water resources, and that the agency’s instream water rights protocol is unlawful.
“I am particularly frustrated by the lack of transparency about how, and why, the government agency with a public instream flow right for hundreds of cubic feet per second in flow has not used such a right when the conditions on the ground would stand to benefit,” said Montana fly fishing outfitter, Toby Swank. “The Beaverhead’s brown trout population spawn in the fall, and stable flows generally improve spawning and population recruitment in wild trout fisheries. I’m very concerned that the State of Montana is not doing everything within its power to protect our waterways and wild trout fisheries from unreasonable – and preventable – harm.”
In his affidavit, longtime outfitter on the Beaverhead River, Shaun Jeszenka, said:
The fact that this water right is not being used is stunning and shows that a very few are benefitting from a public resource. We need better fisheries management dictated by science, instead of decisions forced on the public by political interests. The angling community both public and commercial has endured the brunt of dramatic fishing closures as if they are the problem. We are told by FWP that they are using all of the “tools in their tool belt’” to address the declining fishery, while they hold a trump card in their back pocket. Swank’s affidavit is also linked here.
The Beaverhead River provides a strong example of these failures. FWP holds Water Right 41B 194351-00, an enforceable Beaverhead River instream flow right with the priority date of June 12, 1931 and a 200 cfs maximum flow rate. Montana Department of Natural Resources and Conservation’s Water Rights Database identifies BOR’s Clark Canyon storage claim 41B 40854-00 as a 1961 right, and East Bench/BOR’s Beaverhead direct-flow claim 41B 40850-00 as a 510 cfs right with a 1965 priority date. Yet, as the Beaverhead is about to approach critically low flows, FWP has not explained why it is refusing to assert that right.
The emergency motion seeks that the Court require FWP to explain its refusal to assert its decreed Beaverhead River instream right in the face of ongoing fishery decline and current low flow conditions. The motion does not ask the Court to order FWP to make a particular water right call or to compel the release of already impounded storage water from Clark Canyon Reservoir.
The motion states: “Where the economic pressure to maintain the existing management regime is immense, constitutional and public-trust accountability matter more, not less. The issue is not whether agriculture matters. It plainly does. The issue is whether a trustee agency may silently allow a public fishery to absorb all of the externalized sacrifice without openly explaining why a decreed senior state-held right is not being used to abate the problem.”
The day after filing the motion, FWP released a press release stating a full fishing closure will begin on September 1 from Clark Canyon Dam to Pipe Organ Fishing Access Site, confirming that the Beaverhead fishery is under immediate threat, a reduction in flows to benefit junior storage rights is imminent, and the agency is not and has not made call on its uniquely senior instream flow rights, which are capable of mitigating harm to public trust resources.
Waterkeeper et al. responded by filing an application for an emergency temporary restraining order, requesting the Court issue an emergency ex parte temporary restraining order pending hearing on the preliminary injunction motion before the low flow reduction takes effect on September 1.
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.