Montana Supreme Court to hear argument on water rights

The Montana Supreme Court will hear an oral argument on Friday, Sept. 23, at the State Bar of Montana’s Annual Meeting at the Holiday Inn in Great Falls in a case that will decide whether the federal government owns state water rights in certain reservoirs used by private livestock owners.

Professor Michelle Bryan of the University of Montana’s Alexander Blewett III School of Law will give an introduction to the case of BLM v. South Phillips Water Users Group. The introduction will begin in the Holiday Inn Ballroom at 10:15 a.m., with the oral argument to follow at 10:45 a.m. The Holiday Inn is at 1100 5th Street South.

According to Professor Bryan, the court will principally consider the question of whether the U.S. Bureau of Land Management owns state water rights in certain reservoirs constructed on BLM lands but used by private livestock owners with BLM grazing leases.

South Phillips Water Users Group, a group of livestock owners grazing on BLM lands in Phillips County, seek title to the BLM's claimed water rights under the theory that the livestock owners (or their predecessors) grazed on or near these BLM lands when they were open range, prior to the BLM creating its grazing lease program.

The Water Court held in favor of the United States, concluding that the BLM can develop and own water rights for use by grazing lessees, and need not own the livestock that beneficially use the water. The Water Court further held that any water rights that the private livestock owners may claim from their days of grazing on the open range would be separate claims that can co-exist with the BLM water rights.

The Water Court also agreed with the BLM that a natural prairie pothole located on BLM grazing land should receive special classification as a federal "reserved" water right under an early federal law that withdrew from the public domain those water bodies large enough to support public uses for watering purposes. The livestock owners argued that the pothole was too small to qualify for withdrawal under the law.

South Phillips Water Users Group has appealed these Water Court rulings.