Water rights questions need answers
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Editor,
The Flathead Joint Board of Control has 146 water right claims on irrigation project water that were filed in 1982 at the Montana Department of Natural Resources and Conservation in accordance with Montana water rights adjudication law. Recently the FJBC hired a consultant to address technical issues raised by DNRC, at the request of Montana Water Court, on FJBC claims.
But there are many legal questions concerning the FJBC claims that also need to be addressed before the next phase of the Water Court’s adjudication process begins on June 1, 2018 or possibly earlier.
For example, the FJBC is listed as the current water rights owner on most of its claims. But does the FJBC have the legal authority to own a water right? If not, can the FJBC amend its claims by substituting an alternative owner? What is a possible alternative?
The Bureau of Indian Affairs also has on file at DNRC claims that are almost identical to FJBC. How does the Montana Water Court deal with conflicting claims? Will the BIA claims take precedence over FJBC claims? If so, why?
The FJBC claims list 1855 as the enforceable priority date. What is the legal basis for this date given that the irrigation project was not developed until the early 1900s?
Under the FJBC statements of claim, individual properties are listed as places of use. In other words, individual irrigator property owners are not directly listed as owners of the water right. What are the implications for those who believe they have a direct claim on project water based on title documents from the U.S. government? What if claims were not filed on such lands by the 1982 filing deadline? Is there a conflict between the FJBC water right claim and those who filed a direct water right claim on project water in 1982?
Dick Erb
Moiese
