Montana DNRC, US (Bureau of Land Management)
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IN THE WATER COURTS OF THE STATE OF MONTANA LOWER MISSOURI DIVISION - FRENCHMAN 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 FRENCHMAN CREEK DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF FRENCHMAN CREEK IN PHILLIPS AND VALLEY COUNTIES, MONTANA. ) ) ) ) ) ) ) ) ) CLAIM 40L-W-0 CLAIMANT: United States of America, Bureau of Land M OBJECTOR: United States of America, Bureau of Land Management MASTER'S REPORT FINDINGS OF FACT I The United States of America, Bureau of Land Management filed an objection to the purpose of right, "no right" remark, volume and flow rate of their claim. II The Temporary Preliminary Decree of the Frenchman Creek Basin includes the following "no right" remark on this claim: "The Water Court finds no legal basis for this purpose to be considered a beneficial use or appropriation of water." III Upon review of the claim file, it appears that this remark was added because this claim is for a pothole lake with no diversion. IV The Temporary Preliminary Decree of the Frenchman Creek Basin does not state a volume figure or flow rate figure. V The volume should be 1.09 acre feet per year, the volume originally claimed. VI On November 17, 1986 the Bureau of Land Management filed an affidavit specifying the correct flow rate. VII The flow rate should be runoff. CONCLUSIONS OF LAW I The Water Court has jurisdiction to review all objections to temporary preliminary decrees pursuant to 85-2-233, Montana Code Annotated. II As this adjudication is for rights existing prior to July 1, 1973, the applicable law is that which was in effect at the time of the appropriations. III The applicable statutes 89-801 et seg. RCM did not define appropriation nor require a physical diversion. 2 IV Older cases, e.g., , Sherlock v. Greaves, 76 P.2d 87 (Mont. 1938), and the early rules and customs of miners and irrigators speak of a requirement for a diversion; however, the sine qua_ non of an appropriation is the application of water to beneficial use. See e.g. Stone, Legal Background on Recreational Use of Montana Waters, 32 Mont. L.Rev. 1, 13-14(1971) and other authorities there cited. V The Montana Supreme Court has expressed its willingness to recognize a right to instream or in situ use, under proper circumstances, stating: Under proper circumstances we feel that such a public interest should be recognized. This issue will inevitably grow more pressing as increased demands are made on our water resources. An abundance of good trout streams is unquestionably an asset of considerable value to the people of Montana. Paradise Rainbows v. Fish and Game Commission, 421 P.2d 717, 721 (Mont. 1966). VI Under pre-1973 law, the United States of America is entitled to decrees for wildlife drinking and habitat despite the absence of a "man-made" physical diversion. VII The United States of America, Bureau of Land Management has a valid right for wildlife use of this pothole lake with no physical diversion. VIII The no right remark should be removed. 3 IX The volume and flow rate should be added as stated in Findings of Fact V and VII. DATED this day of ORDER After review of the Master's Report it is ORDERED that the above changes are to be made to the Temporary Preliminary Decree of Existing Water Rights of the Frenchman Creek Basin. DATED this22nd day of January , 1987. W.W. Lessley Chief Water Judge CC: United States of America USDI, Bureau of Land Management P.O. Box 36800 Billings, MT 59107 John R. Hill, Jr., Attorney U.S. Dept. of Justice Land and Natural Resources Division 1961 Stout Street, Drawer 3607 Denver, CO 80294-3607 4
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