Montanans were justifiably shocked when the news broke last week that Governor Gianforte stopped the Department of Fish, Wildlife and Parks from enforcing its instream flow water rights on the nationally famous Smith River as well as the Shields River. Thanks to the “right to know” provision in Montana’s Constitution reporters were able to get the records revealing that the governor betrayed both his Bible-sworn Oath of Office to uphold the Montana Constitution as well as the Public Trust Doctrine, in which he serves as trustee to preserve our publicly-owned rivers and their world-renowned wild trout fisheries.
To make a long and complex story much shorter, Montana allocates water rights based on the Doctrine of Prior Appropriation — which means those who divert water from rivers, lakes, and streams for beneficial uses have rights to the water that are prioritized as “first in time, first in right.” Simply put, those who claimed their rights first have “senior” rights to the “junior” rights that were claimed later.
It’s no secret that Montana’s rivers, like most of the West, are over-appropriated — meaning more water rights have been claimed than there is water in the river. During the severe drought that gripped the state last year and has worsened this year, the senior water rights holders can “put a call” on their rights and legally require upstream junior users to cease diversion until the senior rights are fulfilled.
For many years the concept of holding water rights for instream flows — to protect the health of the river, aquatic ecosystems, fish and recreation — were not legally recognized. But in 1969 Montana filed “Murphy Rights” that gave the state allocations on 12 major rivers, including the Smith. While these rights are junior compared to many of the water rights filed in the 1800s, they nonetheless are senior to the water rights filed after that time — of which there are 82 on the Smith and 44 on the Shields rivers.
When the flows on the Smith and Shields dropped due to lack of runoff from low mountain snowpack, Fish, Wildlife and Parks did what the agency should have done — prepared to put a call on its instream flow water rights to preserve the rivers, their fisheries and ecosystems.
But before that happened, Gianforte stepped in and ordered the agency to halt. In effect, the governor unilaterally decided to forego both his and the state’s responsibility to preserve the public’s rivers in a stunning dereliction of duty and betrayal of the state’s Constitutional mandate that: “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” (Art. IX, Sec. 1)
Obviously, a river with little or no water in it is neither clean nor healthful. When rivers are dewatered the effects are significant. Low flows and high temperatures force smaller fish into the deeper holes where they are summarily eaten by the larger fish they would normally avoid by remaining in shallow water and side-channels. When flows fall even further and water temperatures exceed the tolerance of cold-water fish like trout, the big fish die, too.
It takes a black heart to knowingly sign a death warrant on a Montana trout stream as Gianforte did. But then again, this is a guy who shoots trapped, treed, and collared Yellowstone National Park research wildlife…so what’s a few fish, ehh?
Last year was brutal on Montana’s prized wild trout rivers and this year promises to be even worse — especially with a governor who so willingly betrays his public trust and constitutional responsibilities.
