HELENA — Montana’s top statewide elected officials held a discussion Monday, in response to questions about what happens when farmers and ranchers use their water rights on state trust lands.
The state Land Board includes the governor and the four other state executive elected officials: the attorney general, secretary of state, state auditor and superintendent of public instruction. They’re responsible for directing the management of trust lands – state-owned lands that are leased out to create revenue for schools and other public institutions.
In some cases, agricultural users leasing those lands direct water onto them for irrigating crops or watering livestock. In recent weeks – and again during Monday’s meeting – a number of users have expressed concern that the state could claim partial ownership over water rights they put to use on those lands.
“We can have all the grass in the world; if we don't have water, we have nothing, absolutely nothing,” said Jim Lane, a rancher from Wheatland County. “The state section I'm referring to has zero water on it until I pipe that over there.”
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“If we're going to pump water out there, we're going to lose it,” said Carl DeVries, a rancher from Roberts. “Why do we want to invest in that infrastructure? We need some assurances somehow that that is a temporary situation.”
At last month’s Land Board meeting, Attorney General Austin Knudsen and Superintendent of Public Instruction Elsie Arntzen called for the board to take a closer look at the issue, saying they had concerns about private property rights.
On Monday, Lt. Gov. Kristen Juras gave a presentation on how the administration and the Montana Department of Natural Resources and Conservation are handling these situations. She said it requires leaders to balance constitutional obligations.
“DNRC and the Gianforte administration, as well as all of you, we're all absolutely committed to protecting private property rights,” she said. “We also have – as the landlords, you have – a constitutional obligation to generate revenue from the school trust lands for the beneficiaries: the students who attend the public schools.”
Water rights are a complex issue in Montana. In general, they give holders the right to put a certain amount of water toward a beneficial use. They include specifics on the source of the water, where it will be diverted, how and where it will be used and how much will be diverted. All water rights claims dating back to before July 1973 are being adjudicated through the state Water Court. Later claims have to go through a different process.
Juras said the state can claim partial ownership in a water right, even if the point of diversion is on private land, if it was intended for use on trust land when it was originally claimed. She said that would only apply to the portion of the water right that is used for trust lands, and it wouldn’t extend to ownership in the wells or the infrastructure used to transport the water.
If a rancher or farmer has a water right entirely for their private land, they can go through a process with DNRC to temporarily redirect part of it to trust land for the duration of their lease.
“Now their water right’s going to look different,” Juras told the board. “If they solely develop it on private land, it might be a smaller water right than if they had included the state trust land as part of their place of use. So they're going to have to make a decision –maybe it's beneficial for them to include the state trust, and maybe it's not.”
Last month, the Montana Supreme Court issued a ruling upholding the state’s ownership of part of a pre-1973 water right that farmers in Gallatin County had claimed to irrigate crops on three parcels of private land and one of trust land.
In 2019, the Montana Legislature passed a law, House Bill 286, that prevented the state from unilaterally claiming ownership in post-1973 water rights through a process that didn’t allow landowners a chance to object. Juras said that law doesn’t mean the state can’t assert an interest in the future through a different process, and it doesn’t apply to pre-1973 rights.
The Supreme Court decision also said HB 286 didn’t apply to this case because it was pre-1973.
During Monday’s meeting, the Land Board unanimously backed a proposal from Knudsen, to require DNRC to come to the board for approval when asserting a state ownership interest in a water right with a point of diversion on private land.
“We as the Land Board, we as the Board of Land Commissioners, we're the client here,” Knudsen said. “This is ultimately our decision. It's our name on the caption.”
The board also asked staff to give them a review of the current cases they’re involved in on this topic – only three – at next month’s meeting.
