‘Reserved water rights’ affect property values both on and off reservation
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Live off the Flathead Indian Reservation? Not worried about reserved water rights? Well, the DNRC is, as you may read below.
“This right is subject to all prior Indian reserved water rights of the Confederated Salish and Kootenai Tribes in the source of supply. It is the Tribe’s position that the exercise of junior water rights either within or outside of the exterior boundaries of the Flathead Indian Reservation may affect the reserved water rights of the Tribe within the exterior boundaries of Reservation. It is the Tribe’s position that the economic investments made in reliance upon this right do not create in the appropriator any equity or vested right against the Tribes. The appropriator is hereby notified that any financial outlay or work invested in a project pursuant to this right is at appropriator’s risk. The issuance of this right does not reduce the appropriator’s liability for damage caused by the exercise of the right. It does not make the Department liable for damage caused by the exercise of the right nor is the Department liable for any loss to the appropriator caused by the exercise of senior reserved water rights.”
No, this is not on the Reservation. This is what appears on a water right transfer off the Reservation. You can find it on the DNRC website, or the Western Montana Water Rights website: http://westernmtwaterrights.wordpress.com
First line: We are talking about reserved water rights, not treaty or aboriginal rights. Reserved rights are strictly on the Reservation. How did the reserved rights get off the Reservation, to which your transferred rights are “subject to?” There is no law or ruling defining reserved rights off the Reservation, any Reservation — see the Bilodeau Analysis.
Second line: “ ... the exercise of junior water rights either within or outside of the exterior boundaries ...” that would seem to include, among others, upper Flathead basin, Hungry Horse, etc. Surface or ground water? As the Tribe makes no distinction between surface and ground, most likely both. Do you have senior rights ... or thought you had? As evidenced and reinforced by the DNRC, you just may be junior. Again, “... outside the exterior boundaries ...”
Read it again. At your risk, without recourse. Not even through the DNRC/Water Court. Does this affect the property values? If you are grandfathered in without the above phraseology, what’s your property’s new value without the “grandfather?” Dumb buyer will never know. Nervous sellers will disclose. Or will they? Realtors beware. Is this strictly for the Flathead? That’s not where it first occurred. Another county. Not Lake. Please be aware.
