FJBC unprepared to meet water court legal challenges
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Editor,
Later this year the Montana Water Court (MWC) is expected to begin the next phase of its adjudication of all 1973 water right Statements of Claims filed in this region that have been examined by the MT Department of Natural Resources and Conservation (DNRC). As Karen Peterson reported in the Dec. 20, 2017 Valley Journal, the FJBC and DNRC differ over the total acreage to be covered by the FJBC water right Statements of Claims.
But acreage is only one component of a water right Statement of Claim. When the MWC makes its final judgement on a water right Statement of Claim it will do so only if it is satisfied with all sub-components – I call them sub-claims - within the Statement.
Thus, during MWC adjudication proceedings the FJBC will need to justify and defend all of its sub-claims including:
• that it has legal authority to hold a water right and is the owner of project water rights
• that 1855 is the right priority date for its project water claims
• that the maximum water flow and water volume rates contained in its claims are consistent with irrigation project water flows and volumes in 1973
• that the 1973 points of diversion and means of diversion associated with its claims are valid
• that its claims on places of use, including the acreage, are valid
Under MWC procedures, many entities will have an opportunity to challenge each and every one of these FJBC claims including not only the CSKT and Federal governments, but also individual property owners whose own claims are affected by the FJBC’s claims. The latter include property owners inside as well as outside the project.
All of the sub-claims within the FJBC’s Statements of Claim involve complex and contentious legal issues which were not in the scope of the DNRC examinations. But the FJBC is totally unprepared to meet the many legal challenges it will face in the Montana Water Court. It is only now beginning to commission legal work.
Dick Erb
Moiese
