Water Rights Claim is an Outrageous Grab by State

Imagine you agree to help your neighbor remodel a deck on his house one weekend. You even bring your own power tools to get the job done quicker. When done, your neighbor admires the improvements, then turns to you and says, "Leave your tools. They're on my property. They belong to me now."  

Any Montanan would roll his eyes at such an asinine demand and likely laugh as he gathers his tools and walks away. And yet, similar illogical nonsense is being espoused right now by state bureaucrats who argue they have the authority to seize certain water rights temporarily lent to make improvements. We aren't laughing, nor can we just walk away. The bureaucrats behind this are serious, and the ramifications, if left uncorrected by the

Montana Land Board, will be a blow to private property rights and state revenues.

At issue is a practice that has been a norm in Montana for over a century. For a fee paid to the state, farmers and ranchers lease public lands to graze livestock or grow crops. Money from the leases generates revenue for the state whether through crop share agreements, agriculture, or grazing leases, all which generate revenue for schools. To ensure success in either venture, some farmers and ranchers with water rights on private property will spend their money to improve the public land while they lease it. This can include providing water tanks for cattle or irrigation for crops. Whatever the improvement, the provided water might come from an established water right on the leaseholder's private property. When a lease expires, the leaseholder stops using the land and providing water. In the past, the state policy aligned with this ideal: the lease is temporary, and the private owner retains the water right.

In 1986, an attorney for the then-Department of State Lands wrote a letter to the state Water Court making this quite clear: It is the state's general policy, he wrote, "not to assert ownership of water rights where the diversion point is on private land."

However, the Department of Natural Resources and Conservation, formerly the same Department of State Lands, has now decided otherwise.

Incorrectly citing a 1985 state Supreme Court ruling, the DNRC now asserts ownership of private property rights developed on private land that are used temporarily on a state lease.

Like the ridiculous, make-believe neighbor staking claim to your tools, the agency is telling farmers and ranchers: You can leave, but your property rights stay with us.

This is government bureaucracy gone insane. It would be laughable if not so absurd. The Supreme Court case these bureaucrats cite, the Department of State Lands vs. Pettibone, involved a leaseholder who developed water ON the state lease and used it there. That case never addressed a water right developed on private property.  

Public land leases are mutually beneficial: Leaseholders get use of the land for a fee, which generates important revenue. If the DNRC continues to make this kind of claim to the water right, those mutual benefits will surely cease. No responsibleowner of water rights will risk losing them by using them on leased state lands. Who would lend tools to a neighbor if he thought the tools would never be returned?

There is potential good news, though. The state Land Board has the authority to end this overreaching DNRC claim. The elected members of the board – the governor, the auditor, the attorney general, the secretary of the state, and the superintendent of public instruction – have the authority to reverse the DNRC's course. We believe it is the Land Board's constitutional duty to do so. We urge all Montanans to ask the state Land Board to restore the policy that protects private property rights.

Carl DeVries is a 5th generation rancher in Roberts. He sits on the board of directors of the Rock Creek Water Users Association and is a board member of Senior Ag Water Rights Alliance.