Stockwater

Stockwater is one of Montana’s oldest water uses and is critical to the continued survival of a Montana livestock industry. Before the Montana Water Use Act of July 1, 1973, livestock water rights belonged to whomever owned and watered livestock on a customary range. The person did not need to own the land or file a claim. The right became private property as soon as the livestock drank water. The right was for exactly as much as the herd needed to drink and no more.

Livestock water rights were never adequately addressed in the Montana Water Use Act, which focused on irrigation, wells, and towns. For over a hundred years, Montana cattle have wandered their ranges and drank rainwater wherever it puddled, eaten snow wherever it drifted. All Montana water use has assumed that cows are in their pastures and have full access to the water there. This use has been taken tacitly into account in the adjudication, but never officially acknowledged.

June 28, 1934, Congress directed the US Secretary of Agriculture to determine which lands were “chiefly valuable for grazing” and to organize them into Grazing Districts. Grazing in these districts was adjudicated based (among other things) upon who had been grazing livestock there the longest, that is, under Montana water law as it then stood, upon who owned the oldest livestock water rights. These water rights have already been weighed against other claims and found adequate. The only thing they haven’t been, is recognized by the state of Montana.

In 1978, the Department of Natural Resources and Conservation (DNRC) reported that about half the state’s water rights were stockwater rights, that they didn’t really affect other users, that the current filing methods were inappropriate for them, and that the state could save a lot of money by just ignoring them. They advised the legislature to exempt stockwater from filing requirements to economize. The ranchers could file stockwater rights, but the DNRC actively discouraged them and in some cases erroneously told them they were not permitted to.

Meanwhile, the DNRC was not actively discouraging the Bureau of Land Management (BLM) from filing. Recall that until June 29, 1973, the BLM did not own a single solitary livestock water right for any livestock that they did not actually own. This means that many ranchers today have their right to water their livestock legally controlled by the BLM.

To save ranching in Montana, I’m asking our legislators to accept the results of the federal adjudication under the Taylor Grazing Act of 1934. The federal government made a proper adjudication with notification, filing, hearings, appeals, etc. They determined who was running livestock where and how many and, thus, exactly what stockwater rights existed. Under Montana law at that time, those federally determined stockwater rights were valid and vested, right up to June 29, 1973. The Supreme Court has agreed they were valid. Adequate filing procedures have never been available for them, and the Legislature officially exempted them from the filing requirement, so they haven’t been abandoned through failure to file. This approach is quick, clean, and simple. Our endless, expensive water adjudication and all the irrigators will be unaffected. We can give the ranchers a priority date of June 27, 1934, one day before the passage of the Taylor Grazing Act, since we know the true priority dates precede the Taylor Grazing Act, but we don’t know by how much. If you care about cowhorses and healthy rangelands and small towns and ranchers, please help me encourage the Legislature to accept the results of the federal adjudication!

Ron Stoneberg