US (Bureau of Land Management)

Annotate this Case

Download PDF

IN THE WATER COURTS OF THE STATE OF MONTANA YELLOWSTONE DIVISION - O'FALLON CREEK BASIN * * * * * * * * * * * * * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE O'FALLON CREEK DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE O'FALLON CREEK IN CARTER, CUSTER, FALLON AND PRAIRIE COUNTIES, MONTANA. IN THE WATER COURTS OF THE STATE OF MONTANA LOWER MISSOURI DIVISION - REDWATER RIVER BASIN * * * * * * * * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE REDWATER RIVER DRAINAGE AREA INCLUDING ALL TRIBUTARIES OF REDWATER RIVER IN RICHLAND, DAWSON, McCONE AND PRAIRIE COUNTIES, MONTANA. ) ) ) ) ) ) ) ) ) Case 40P-2 40P-W-077476, 40P-W-077477 40P-W-077480, 40P-W-077481 MASTER'S REPORT REGARDING UNITED STATES DEPARTMENT OF INTERIOR BUREAU OF LAND MANAGEMENT'S INSTREAM WATER RIGHT CLAIMS FOR WILDLIFE The Department of Interior Bureau of Land Management (hereafter the Bureau) made four claims in the Redwater River Basin and one in the O'Fallon Creek Basin for water rights for "wildlife" in instances in which no man-made appropriation of water existed. None of these rights were recognized as water rights in the Redwater River and O'Fallon Creek Preliminary Decrees. The Department of Justice, representing the Bureau, made objection to the denial of the rights, prehearings were held, and the matters submitted on briefs. Facts The Bureau claimed the following: Water Right Priority Date Flow Volume 40P-W-077476 February 10, 1937 1.60 gpm 1.71 acre feet/ year 40P-W-077477 April 15, 1937 1.00 gpm .82 acre feet/ year 40P-W-077480 April 15, 1937 1.00 gpm .82 acre feet/ year 40P-W-077481 April 15, 1937 1.00 gpm .82 acre feet/ year 42L-W-080401 February 21, 1940 .99 gpm .69 acre feet/ year Water rights claimed in the Redwater Basin are on an Unnamed Tributary of West Duck Creek in the SWNE of Section 21 and the S2SE of Section 22, T 16N, R 47E. The right claimed in the O'Fallon Creek Basin is in the S2SE of Section 30, T 6N, R 58E on an Unnamed Tributary of Lame Jones Creek.. The Bureau submitted a report by Gerold Gill including photographs of water pools and bottomland in the Redwater River Basin. The bottomland vegetation is obviously enhanced by the presence of spring-fed pools and by subirrigation. Mr. Gill identified evidence of the following wildlife species using the bottomland habitat: 11 deer, 2 coyote or fox, 2 racoon, I grouse or pheasant, 1 mouse, 9 sharptail grouse, and 4 pheasant. Memorandum The basis of an appropriative water right in Montana has generally been an appropriation for a beneficial use. 89-801 et seq. RCM 1947. A use by wildlife is considered a beneficial one. -2- 85-2-102 (2) MCA. In this instance, no appropriation has been made. Does the Bureau have a Congressional mandate to manage the Public Domain for the benefit of wildlife that creates a ailS0141/1- .. water right in these p r icu arG. 1'144-At claims? The Bureau called the Court's attention to 85-2-223 MCA, a section that makes possible a recognition of a public recational use in existing water right determinations-when such a right is asserted by the Federal Government. It also reminds the Court of the following language regarding instream use in Paradis Rainbow v. Fish and Game Commission, 148 Mont. 412, 419 & 420, 421 P.2d 717 (1966); "Under the proper circumstances we feel that such a public interest should be recognized." The Bureau administers the Public Domain as provided by the Taylor Grazing Act, enacted in 1934. 43 U.S.C. §315 et seq. It was Congress' major intention, by passage of the Act, .to change destructive grazing practices that existed in vast areas of the arid west. 43 U.S.C. §315 et seq. Aldrich, Recent Changes in the Law of Livestock Grazing, I Public Land Law Review, 83, 84 (1980). However, the Bureau was given other management directives as well, including the conservation and propagation of wildlife. That section of the Act reads, in part: "COOPERATION WITH ASSOCIATIONS, LAND OFFICIALS, AND AGENCIES ENGAGED IN CONSERVATION OR PROPAGATION OF WILDLIFE; LOCAL HEARINGS ON APPEALS; ACCEPTANCE AND USE OF CONTRIBUTIONS The Secretary of the Interior shall provide, by suitable rules and regulations, for cooperation with local associations of stockmen, State land officials, and official State agencies engaged in conservation or propagation of wild life interested in the use of the grazing .districts." Act-of June 28, 1948, 48 Stat. 1273, 43 U.S.C. 315h. Later enactments show congress' continued mandate that the Bureau manage the Public Domain, in part, for the benefit of wildlife. The Congressional declaration of . policy stated in the Land Policy and Management Act reads, in part: . "CONGRESSIONAL DECLARATION OF POLICY (a) The Congress declares that it is the policy of the United States that... (8) the public lands be managed in a manner... that will provide food and habitat for fish and wildlife and domestic animals...." 43 U.S.0 §1701 et seq. The Bureau has entered into Cooperative Agreements with the State of Montana, Department of Fish and Game pursuant to 43 U.S.C. 315h. See Exhibit B to Claimant's Brief. Agreement is made to cooperate in maintaining, im p roving and managing wildlife resources and wildlife habitat. Under the 1982 agreement, the Bureau has responsibility for "maintaining optimum habitat conditions for wildlife on the public land as determined through Bureau planning procedures [that]., must be comiDatibleith:.other recognized uses of the lands and waters concerned." The bureau argues that a water right for habitat is necessary. Wildlife will, of course, drink wherever there is water, but the habitat created by spring-fed pools and subirrigation on Unnamed Tributaries of West Duck Creek and Lame Jones Creek can be maintained with assurance only if the Bureau has been decreed a water right. Having reviewed the files and briefs submitted, the Master respectfully submits the following Findings of Fact and Conclusions of Law. It. should be remembered that this is s a very narrow issue, as pointed out by the Bureau. 'Ihere are no apparent competing claims with Bureau responsibilities for livestock, --4-* nor are there competing claims from private users. Findings of Fact 1. The Department of Interior Bureau of Land Management made claims for "wildlife" uses including the following: (a) Water right 42L-W-080401 located on an Unnamed Tributary of Lames Jones Creek in the O'Fallon Creek Basin, flow rate of .99 gallons per minute, volume of .69 acre feet per year with a priority date of February 21, 1940. (b) Water right 40P-W-077476 located on an Unnamed Tributary of West Duck Creek in the Redwater River Basin, flow rate of 1.60 gallons per minute, volume of 1.71 acre feet per year with a priority date of February 10, 1937. ¢ (c) 40P-W-077477 located on an Unnamed Tributary of West Duck Creek in the Redwater River Basin, flow rate of 1.00 gallons per minute, volume of .82 acre feet per year with a priority date of April 15, 1937. (d) Water right 40P-W-077480 located on an Unnamed Tributary of West Duck Creek in the Redwater River Basin, flow rate of 1.00 gallons per minute, volume of .82 acre feet per year with a priority date of April 15; 1937. (e) Water right 40P-W-077481 located on an Unnamed Tributary of West Duck Creek in the Redwater River Basin, flow rate of 1.00 gallons per minute, volume of .82 acre feet per year with a priority date of April 15, 1937. 2. None of these claims were recognized because there was no appropriation of water. The Department of Justice made. objection on behalf of the Department of Interior Bureau of Land Management. After basin-wide notice, no person indicated a desire to appear upon the objections. 3. Congress enacted the Taylor Grazing Act on June 28, 1934, mandating, in part, that the Department of Interior Bureau of Land Management cooperate with States, or other local groups, in the conservation and propagation of wildlife on the Public Domain. -5- 4. The Department of Interior Bureau of Land Management has agreed to "maintain optimum habitat conditions for wildlife on the public lands..." in it cooperative agreement with the State. (See Exhibit B to Claimant's Brief) 5. The water rights claimed create pools and subirrigation conditions that improve wildlife habitat. Conclusions of Law 1. The Water Court has jurisdiction to review all objections to preliminary decrees pursuant to 85-2-233 MCA. 2. Since June 28, 1934 it has been Congress' intention that the Department of Interior Bureau of Land Management cooperate in the conservation or propagation of wildlife on the Public Domain. 3. Recognition of water rights 42L-W-080401, 40P-W-0077476, 40P-W-077477, 42P-W-077480 and 40P-W-077481 would serve to correct the Redwater River and O'Fallon Creek Preliminary Decrees and the rights should be recognized in the Final Decree of Existing Rights in those Basins. Respectfully submitted this I day of March, 1985. z Al Sarah Arnett., Water Master ORDER Having read the Master's Report regarding the Department of Interior Bureau of Land Management.'s instream water right claims for wildlife in the O'Fallon Creek and Redwater River Basins,' it is -6- ORDERED that the following water rights will be recognized for purposes of "wildlife" in the Final Decree of Existing Water Rights in the O'Fallon Creek and Redwater River Basins: 1. Water right 42L-W-080401, flow rate of .99 gallons per minute and volume of .69 acre feet per year. 2. 42P-W-077476, flow rate of 1.60 gallons per minute and volume of 1.71 acre feet per year. 3. 40P-W-077477, flow rate of 1.00 gallon per minute and volume of .82 acre feet per year. 4. 40P-W-077480, flow rate of 1.00 gallon per minute and volume of .82 acre feet per year. 5. 40P-W-077481, flow rate of 1.00 gallon per minute and volume of .82 acre feet p er year. DATED this day of March, 1985. W.W. Lessley, Chief Water Judge cc: John R. Hill, Jr. tiport6cOidijA Water Courts thereby certify that the Instrument tt) which the certificate is r.: ¢ '..:rd 1 . ¢ true% correct and comparod copy pith: on file in the office of the Clerk of the Water Courts. Witness rny hand end the seal of the Water Courts of the State of Montana this 1935, fel of___Ci-SIS--b 5 _Ca:an= CFA of the . Water Courts

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.