Montana Supreme Court’s Smith River Decision Could Set Precedent

By Hal Herring, 4-14-06

	Caption: The Smith River. Photo from Travel Montana.

The Montana Supreme Court this week decided in favor of Trout Unlimited and eleven other petitioners, among them flyfishing guides, outfitters and landowners along the Smith River, in a long-running lawsuit over water rights in the Upper Missouri basin, of which the scenic Smith River is a part.

Just another water rights battle in a state where water has been the subject of court cases, feuds, fistfights and murders ever since white men decided to try farming dry country. Right?

Wrong. With the new decision, the state Supreme Court has recognized the concept of "connectivity," of ground water to the surface waters in rivers, opening a can of worms that will have far-reaching effects for agriculture, development and recreation in Montana.

The losers in the decision (Click here for the full PDF of the Court's decision) were a group of ranch owners who had planned new irrigation operations that would draw from a series of wells in the watershed of the Smith. The ranchers applied for the permits years ago, and the litigation initiated by Trout Unlimited had held them up. Some of them had already invested in the infrastructure and the equipment -- big center pivot irrigation systems -- to utilize the water from wells that now cannot legally be drilled.

In the early 1990's the upper Missouri River Basin was closed to further allocations of surface water rights. But the assumption, until Trout Unlimited and others filed the suit four years ago, was that the groundwater flowing under the basin could still be utilized.

"The Montana Department of Natural Resources was saying that the groundwater did not recharge the rivers," said Bruce Farling of Trout Unlimited, "So we got them to do a hydrological study to see if that was true. The study showed that the groundwater did indeed charge the river, and that there was a problem, but DNRC continued to process these well permits. One estimation by the DNRC said that if these 16 permits were approved, the flow in the Smith River at Camp Baker could be reduced by as much as 22 cubic feet per second. Well, it only runs at 70 cubic feet per second there now during July and August. It is already chronically dewatered, the fishing is terrible on the lowest stretches, and it's almost dry before it ever reaches the Missouri River down by Ulm."

Farling points out that everybody involved recognized that the groundwater charged the river, they just preferred not to acknowledge it. "We had one Hutterite colony that had applied for a permit to drill a well right beside the river," he said. "And the plan was to pump the water up to a holding pond where it could be used for irrigating. We said, 'If the water is not part of the river, why don't you just drill the well by the pond?' But of course, there was no water up by the pond."

The issue was the legal recognition that the water under the ground was part of the river, and that water, despite whatever value it might have to fish or wildlife, which have little or no consideration under water rights' law -- was already allocated to the holders of senior water rights.

"People who don't understand this case think it is a conflict between agriculture and fishermen," Farling said. "But it's not. The permits would have allowed the people who drilled the wells to capture water that legally belonged to other irrigators, who held the senior water rights. That is what the conflict was about. The Supreme Court just established that the connectivity of groundwater to surface water in a river is real. You cannot separate the two."

DNRC Director Mary Sexton said the ruling will have an immediate effect on how her agency operates.

"This is a broad-based decision, with a wide range of impacts," she said. "The Court was split 4-to-3, and it was the reversal of an earlier District Court decision. We already knew that this was a serious concern, and have had a groundwater working group studying it for over a year. Now we have to determine what it means for us."

Mike Geary of Helena operates Lewis and Clark Expeditions, the largest outfitter on the Smith River, guiding flyfishermen and sightseers down what is one of Montana's premier floating and fishing destinations. The Smith runs through a huge expanse of mostly private land, and is accessible to fishermen at very few points along its course, unless you float it with a raft or canoe. The river is unique, too, in that it runs through a high prairie country, austere and wild. It has become very popular in recent years, and recreational use of its waters has become an important part of Montana's economy, something that has not yet been factored into the conflict over water rights, but which definitely played a part in the bringing of this lawsuit. Geary was a litigant with Trout Unlimited in the lawsuit over the well drilling permits.

"It was not that complicated," Geary said. "Groundwater is in finite supply, and there is competition for it. These permit applicants were trying to capture the groundwater that charged the river, a capture of water that was already allocated to senior water rights holders. Now, the basin is closed to any new permits that would affect surface water. The DNRC's own research showed that if you drilled these wells, you would have a direct effect on the surface water. That should have been it. But it wasn't. The reason we went to the Supreme Court was because the state government had failed us."

Geary also said that the economic contributions of tourism and fishing were simply ignored in the dispute over the well permits. "The DNRC's environmental assessment said that there would be a $200,000 plus for the economy if the permits were approved for the irrigation projects, but a $200,000 loss to downstream users. No recreational value was ever factored in… My business is predicated on surface waters, on rivers and water flows. Recreational use of the river is new compared to agriculture, and I don't know how it compares in employment or revenues, but it is a factor. And it is part of the heritage of this state, too."

Geary said the effects of the ruling would be felt far beyond the Smith River and the Upper Missouri basin. "Almost every major river across Montana has these subdivisions going in, every house dependent on well water. This is an issue that will be with us for a long long time."

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