Fish and wildlife have rights, too
by Joshua Zaffos
Fish, wildlife, anglers and river runners in Montana have earned their rights to water. The breakthrough came in October, when the state Supreme Court ruled citizens and government agencies can maintain their water rights without having to divert the water from rivers and streams. The ruling amends the age-old "use-it-or-lose-it" philosophy of Western water law, and validates state and federal government claims to water rights for "instream flows."
Jake Cummins of the Montana Farm Bureau Federation says the ruling, which came in response to an appeal from the Montana Department of Fish, Wildlife and Parks, threatens irrigators' rights. "We could all be without water," says Cummins, "if they decided they needed all of it for the spotted gazelle or something."
But Bruce Farling of Trout Unlimited says most instream claims - even old government claims - have junior rights, meaning irrigators' water will not be affected. The Farm Bureau "needs to calm down," says Farling, because the ruling also "assures farmers that if they leave water instream, (their rights are) still secure."
On the same issue, the Wyoming Legislature stalled last year on a bill that would have allowed irrigators to leave water instream temporarily. Wyoming's present instream law makes rights for fish and wildlife considerably more difficult to obtain than diversionary rights, and does not recognize instream claims for recreation, public health or aesthetics. The issue came up again in an October public hearing, with agricultural interests lining up against change.