Keeping the Public on Montana Public Land and Water. (Now and Forever!)

plwa_logoThe Public Land and Water Association is to heartily congratulated on the victory in the Montana Supreme Court opinion in PLWA v. Madison County.  The precedent-setting decision assures us all of continuing access to Montana’s public waters. They did all the heavy lifting in the case. Montana TU filed an amicus brief in support and Flathead TU would like to thank PLWA for all their hard work on this case. Here is the note from PSWA on the case:

Resounding victory for public access

On January 16, 2014  the Montana Supreme Court overturned a lower court and assured public access to the Ruby River from bridges on land owned by Atlanta media mogul James Cox Kennedy. The decision sets a precedent that validates all Montana stream and bridge access laws. The Court affirmed a previous decision that  two of the county road bridges – Duncan Road and Lewis Lane – have a 60-foot wide public easement intersecting the high water mark of the river. This is the decision that led to the Montana Bridge Access law.

What’s new is  that the court essentially threw out the District Court ruling on the third bridge – a bridge on the Seyler lane  road . The lower court had mistakenly ruled   there was no recreational  access on the bridge because it was on  a road created by prescription or regular public use  and recreational use was not a basis for creation of the prescriptive  right -of- way.

On Seyler Lane, the case was sent back to District Court with instructions to determine the width of the public road right-or-way which had been established by prescriptive use. Significantly, the Court held that once a prescriptive easement is established, access extends to all public uses including recreational use.

The Supreme Court justices rejected the District Court ruling that a secondary easement off the travel way existed only  to accommodate maintenance by state and county crews and recognized recreation travel as a legitimate use to help qualify a road for prescriptive easement status.

The Court also emphatically upheld Montana’s stream access law, stating “that the State owns all the waters in trust for the People . . . and that a riparian owner takes his property interest subject to a dominant estate in favor of the public. ”

John Gibson, President of PLWA, stated “Today’s ruling from the Montana Supreme Court confirms once again that our streams are public resources, and not the exclusive playgrounds for the select few. The public’s right to wade or float any river or stream in the state has been recognized, as well as the right to access those streams at bridges crossed by public roads. We want to thank Montana Trout Unlimited and the Montana Wildlife Federation as well as our loyal members for their contributions. ”

“We have been involved in this case for over ten years and this decision has justified our efforts,” Gibson says. He went on to say that “Much of our success is due to the great work of the Goetz Law Firm in Bozeman who lead us thru the legal maze surrounding access to the public waters of Montana.”

Resounding Victory indeed! Thanks again to all the good folks at the PLWA.

Help Protect the Smith River

Action Alert from Montana Trout Unlimited

SmithRiverTell Montana DEQ TODAY to require an EIS and better data for a proposed mining exploration in the Sheep Creek drainage of the Smith River.

The Canadian mining company Tintina Alaska, Inc., wants to excavate a mile-long exploration tunnel near Sheep Creek, an important spawning tributary of the Smith River, to evaluate an ore body for a proposed copper mine. The problem is the ore body contains sulfides, so the discharge from the tunnel and the waste rock the project will generate has a good probability of creating acid-mine drainage – a nightmare impact that can be impossible to rectify and which has polluted trout streams and groundwater all over Montana.

The Montana Department of Environmental Quality (DEQ) has issued a draft environmental analysis (EA) that purports to assess the impacts and “mitigate” for them. But it’s a flawed document. It omits key data and relies on future, still-to-be-determined actions and monitoring that would occur only after a permit is issued for the exploration.

Write DEQ today and remind the agency how special the Smith River and its fishery are. Tell DEQ in your own words why it can’t risk spoiling this gem by the type of mining that has ruined streams and groundwater across Montana.

Tell DEQ to:

  • Prepare an Environmental Impact Statement on the proposal and disclose exactly what the quality of discharge will be at the project, and what treatment will be in place to deal with pollution.
  • Require the company to have a modern water-treatment system in place before the tunnel is constructed and keep it going after the project is complete as long as pollution is present.
  • Collect complete baseline information on fish and wildlife in the area and describe in detail how they’ll be protected.
  • Detail in the EIS the specifics of the reclamation bond it will require for the project so the public can comment on its adequacy. DEQ has a long record of approving inadequate bonds, requiring taxpayers to pay for cleaning up mining messes.
  • Deny an exploration permit if the exploration work would result in treatment of polluted discharges in perpetuity.

Tell DEQ to protect the Smith River. It’s the only one we have!

Send comments by Aug. 26 to:


Herb Rolfes, DEQ, P.O. Box 200901, Helena, MT 59620

For questions, contact Mark Aagenes at

Stay Informed! Get involved! Check for important updates.

Thank you for doing your part to make a difference.

Thank Governor Bullock for his Good Work

(From Montana Trout Unlimited)

Please thank Governor Bullock for vetoing bad water bills and supporting important measures benefiting wild trout.

Several water policy bills Montana TU spent much of the session trying to defeat or amend made it to Governor Steve Bullock’s desk. After thoughtful deliberation with state agency staff, he vetoed the three worst bills. TU members really need to thank him for protecting Montana’s great rivers. The vetoed bills include:

SB 19, sponsored by Sen. Brad Hamlett (D-Cascade), would have codified an existing loophole in water law that allows developers to drill an unlimited amount of so-called “exempt wells” in subdivisions without requiring permits or an evaluation of how the cumulative effect of the pumping would affect connected surface water sources. We proposed amendments that would fix the measure, but the Legislature rejected them.

SB 337, also sponsored by Sen. Hamlett. It would have severely reduced the ability of Montanans who don’t have water rights in a particular basin, but have otherwise invested in streamflow conservation from having formal say in Montana’s adjudication of water rights. Gov. Schweitzer vetoed the same bill last session, just weeks after the Montana Supreme Court had upheld the right of TU to object in adjudication proceedings.

SB 347, sponsored by Sen. Chas Vincent (R-Libby), would have exempted massive groundwater pumping or surface diversions for mining from Montana’s nondegradation policy, which protects the state’s high quality waters from undue harm. This bill would have allowed mines to reduce flows in streams that are recharged by the pumped or diverted water. Despite numerous attempts by Montana TU and the governor to amend the bill in a way that would reduce harm, but still allow mines to pump groundwater, the mining industry insisted on a harmful version.

Governor Bullock also deserves special thanks for:

  • Approving a budget for FWP that adequately funds the Future Fisheries Improvement Program, which has invested in millions of dollars of fishery habitat restoration since 1995.
  • Helping develop and approving a bill that greatly improves Montana’s program for dealing with aquatic invasive species, including an appropriation of $1.4 million for the next two years.
  • Vetoing a line-item in a key budget bill that would have eliminated FWP’s ability to purchase important habitat or conservation easements.

Contact Governor Bullock at


call the Governor’s office at 406-444-3111.

And finally….Thanks for helping out this session when we asked you to contact legislators on certain bills, YOU RESPONDED AND YOU MADE A BIG DIFFERENCE!

For more information on the 2013 Montana Legislature visit or contact or

Stay Informed! Get involved! Check for important updates.

Thank you for doing your part to make a difference.

Tell Governor Bullock to Veto Senate Bill 347

Commentary from Montana Trout Unlimited Executive Director Bruce Farling

During pretty much every Montana Legislature the mining industry comes in asking for special gifts. This session the industry wants the ability to trump water rights — all water rights, including very old, established rights for agricultural irrigation, hydropower, municipalities and fishery protection. The Senate and House have obliged.

It is now up to Gov. Steve Bullock to tell the mining industry it can’t diminish the property of others. He should veto Senate Bill 347.

Evading water law

Sponsored by Libby Republican Sen. Chas Vincent, SB347 ensures that the effects of massive groundwater pumping or diversions for mines will not be reviewed under the “nondegradation policy” of Montana’s Water Quality Act. The standards under this policy aim to protect Montana’s highest-quality waters. One standard says that if diversions or groundwater pumping reduce streamflows by more than 15 percent, or 10 percent when streams are lowest, it triggers a review of the effects, possibly requiring alternatives or mitigation. But the industry doesn’t want to comply, so it’s asking for a special deal.

Massive pumping of groundwater for keeping underground mines dry can deplete connected surface flows in streams. The nondegradation standards are the only legal backstop existing water right holders have to ensure pumping doesn’t diminish their rights to surface water. Because pumping or diverting from streams to keep mining operations dry doesn’t require water rights, affected users with water rights, such as irrigators and cities, can’t file objections under Montana’s water use law claiming harm.

Mining groundwater

So if you irrigate in, say, one of the areas that could be facing future mining that requires massive groundwater pumping, such as near Sheep Creek and the Smith River, or, along Fish Creek in the Jefferson River watershed, or around Moose Creek in the Big Hole drainage, you could lose water you have a legal right to. If you run a hydroelectric dam on the lower Clark Fork downstream of two huge underground mines in the Cabinet Mountains that will pump millions of gallons of water a day, you might have less water to run your turbines, water you have a legal right to. Or, if you’re the city of Butte and want adequate water in Basin Creek Reservoir, a municipal drinking-water source, be concerned. Groundwater pumping for a mining operation upstream in the Highland Mountains could diminish your right to surface flows. Finally, if you think instream flow rights that Montana Fish, Wildlife and Parks has on the Blackfoot, Big Hole or Smith Rivers will protect these multi-million-dollar recreational gems, think again. SB347 allows mining to trump FWP’s fishery-based water rights.

SB347 passed the Senate by a wide margin because the bill was supposed to be fixed in the House. But it wasn’t. Vincent did add an amendment that purports to protect fish. But industry lobbyists ensured the language is vague and difficult to enforce, practically guaranteeing future lawsuits.

Everyone who uses water beneficially in Montana must have a valid water right. The priority of these rights follows our first-in-time, first-in-right system. Newer rights cannot trump old rights. Interests with senior rights can file objections with Montana’s water use agency or state water court if a new use will harm theirs. That’s our system. But under SB347, the mining industry can ignore this. Gov. Bullock should ensure mining doesn’t harm existing water rights and veto SB347.

Oil and Water II



August, 1998, 27 rail cars hauling barley and wheat went upside down, spilling their loads east of Essex, MT near Bear Creek, a tributary to the Wild and Scenic Middle Fork of the Flathead River.


Havre 2012

March 2011, 19 rail cars came unglued four miles west of Essex. One car dumped oatmeal into the river and another lost 200 frozen turkeys. ““Our cutthroats will have lower cholesterol this spring,” county commissioner Jim Dupont commented.

Sept. 2012, fourteen cars derailed east of Havre. January 2013, four locomotives and a freight car derailed near West Glacier. No cargo was spilled and no one was injured.  And of course we all remember the August 2012 derailment near Plevna, out in Fallon County that caused several rail cars filled with denatured alchol to explode and burn for several days.

Bakken oil heading west

Bakken oil heading west

These are just a few of the problems that BNSF has had carrying freight to market. Normally they do a good job, but every once in a while there is a glitch. Scary as that might be, it’s about to get a whole lot scarier. Oil from the Bakken oil boom is mostly carried by rail to all three U.S. coasts. This is a recent photo of a 100-car oil train just east of the divide and headed for the Flathead River Valley. Each of these cars holds almost 30,000 gallons of crude oil. If even a small portion of that load, not to mention 27 cars, were to find its way into the Flathead River we would be facing a real, long-term ecological disaster for fish and wildlife all the way down to Flathead Lake and beyond. The Yellowstone River pipeline spill released only about 60,000 gallons of oil. That’s about two rail cars worth.The Bakken expects to ship more than 40 million gallons of crude this year. We can’t afford ANY glitches.


Legislative Update from Montana TU

mtu_logoIt is now halftime at the 2013 legislative session, and legislators have headed home for a few days. If your legislators are planning local meetings during the break, we encourage you to attend and engage them in how they’ve been treating rivers, water and fish at the Capitol. You can get more details on all the bills we are supporting and opposing from the Legislative Hotlist on our website at

Unfortunately, much of what we’ve been doing is playing defense. Good bills are less abundant than bad bills. Here’s a thumbnail from the first half of the session:

Water – We were able to help kill HB 561 (Fitzpatrick-R, Great Falls), an awful bill that codified loopholes for allowing developers to use unlimited “exempt wells” for subdivisions or fish ponds, without having to account for how these depletions might affect connected trout streams or senior water rights. On the other hand, SB 19 (Hamlett-D, Cascade) lives on. It is a similar bill, only slightly worse. It passed the Senate 26-24. Killing it or amending it in the House will continue to be a priority for us. SB 347 (Vincent-R, Libby), a poorly devised bill, would allow mining companies, such as those contemplating large new operations along the lower Clark Fork or in the Smith River drainage, to dewater large groundwater sources, without regard for the impacts it could have on connected trout streams. It passed the Senate, but with amendments that improve it. SB 337 (Hamlett-D, Cascade) also passed the Senate. It prevents TU from having standing to object to bogus and exaggerated water right claims during the state Water Court’s adjudication of water rights – significantly diminishing a hard-fought right we won in a Montana Supreme Court decision two years ago.

Land use planning – A bevy of harmful bills affecting land use planning and zoning, including SB 23 (Rosendale-R, Glendive), SB 24 (Rosendale-R, Glendive), SB 41 (Buttrey-R, Great Falls) and SB 105 (Brown-R, Huntley), passed the Senate. Thankfully, SB 17 (Priest-R, Red Lodge) was tabled.  It would have placed a constitutional initiative on the general ballot altering constitutional language affecting private property in a way that invited blizzards of lawsuits by landowners who object to reasonable regulations that protect water, air, fish or wildlife. A similarly radical bill with the same objective, SB 284 (Rosendale-R, Glendive) was also tabled. Also dead are SB 155 (Vincent-R, Libby) and SB 169 (Brenden-R, Scobey), which would have placed impediments before FWP when it wants to purchase important habitat.

Gravel Pits – The Senate shelved SB 229 (Hamlett-D, Cascade) and SB 234 (Peterson-R, Buffalo), which aimed to make it easier to build gravel pits, even if they were next to trout streams and private property. Some of the ideas they entailed live on in SB 332 (Tutvedt-R, Kalispell). Rural counties, especially those in the Bakken region are agitating to have easier access to gravel. The problem is the ideas in these bills can be harmful to populous areas and nearby streams.

Funding – Appropriation bills are still in a holding pattern or slowly working their way through committees. Concern over the fate of funding of the Future Fishery Improvement Program, which has funded millions of dollars of great habitat restoration over the last 17 years has not diminished. Ensuring this program is adequately funded will continue to be a priority for the second-half of the session. Also important are proposals we are supporting to improve funding for dealing with aquatic invasive species.

Please keep checking  Don’t hesitate to contact us at 406-543-0054 or at  And importantly, keep checking these alerts. We might be calling on you.


2013 Legislature

Montana Trout Unlimited
phone: 406-543-0054