Montana
Montana Supreme Court sides with state in water right dispute
The Montana Supreme Court has sided with the state’s Department of Natural Resources and Conservation in a dispute involving a 64-year-old water right that’s used to irrigate both private and public land.
In a unanimous opinion authored by Justice Beth Baker, the court ruled that the state retains an ownership interest in a water right first claimed in 1960 by John Schutter of Gallatin County. The water right is somewhat unique in that it’s supported by a well that was drilled on private land, but used to irrigate both private and public land. Debra and Sidney Schutter use that well to grow potatoes and other crops on three, square-mile sections of land they own, as well as a square-mile section of state trust land that’s managed by the Department of Natural Resources and Conservation.
The dispute that inspired the lawsuit began in 2019 when the Montana Land Board — composed of the state’s top five elected officials — claimed ownership of the portion of the water right used to irrigate the state land. The Schutters objected to the state’s ownership claim and brought the matter before the Montana Water Court, which ruled in favor of the state.
In their ruling on April 30 upholding the Montana Water Court’s decision, the justices argued that the state must exercise some ownership over the water right to act in accordance with its directive to “secure the largest measure of legitimate advantage” for state trust land beneficiaries — Montana’s public schools.
The justices found that the use of the Schutters’ well water on state trust land plays a key role in the dispute because it demonstrates that the water is being put to “beneficial use” — one of the conditions that must be met before the state will authorize a water right. Had the state land been excluded from the water rights application, “the Schutters’ claim to a water right would have been different, perhaps smaller,” the justices wrote.
The justices further concluded that the water rights are intertwined with the state’s property rights because much of the state exists in a semi-arid zone where “control of water means control of the land itself.” To ensure that the state is maximizing its trust lands’ potential, it’s important that the state also exercise some control over the water rights used to irrigate state trust land, the justices suggested.
Carl Devries, who sits on the board of the Senior Ag Water Rights Alliance, described the state’s position as a “government bureaucracy gone insane” in a recent op-ed in the Billings Gazette about the lawsuit.
“This ruling significantly undermines private property rights and will have long-lasting and negative effects,” DeVries wrote in an email to Montana Free Press. “As a result of the Supreme Court’s decision, water rights holders are now faced with a tough choice: protect their valuable water rights or fully use their state-leased land.”
DeVries said the holders of water rights might now be inclined not to use their water rights on state-owned land out of fear that the state will claim partial ownership over the right. That, he wrote, would be a loss for both the lease-holder — who could be limited to a less-productive use of the land — and Montana’s public schools. Since land with water access is generally more productive, a lessee’s decision not to apply their water right to state trust land could result in a decline in revenues for school system coffers.
DeVries called for the Land Board to exercise greater oversight over the Department of Natural Resources and Conservation “so it can no longer make these unilateral decisions.” More specifically, he urged the Land Board to take up the matter when they meet on May 20.
The DNRC did not respond to MTFP’s request for comment.
Amanda Eggert is an environmental reporter for the Montana Free Press, a Helena-based nonprofit newsroom, and can be contacted at aeggert@montanafreepress.org.
Montana
University of Montana president job draws high interest • Daily Montanan
The search for a new University of Montana president has drawn more than 60 applicants, according to a spokesperson for the Office of the Commissioner of Higher Education.
“We do not have an exact count at this time, as several applications are still being completed and additional submissions are expected,” said spokesperson and Deputy Commissioner Galen Hollenbaugh in an email earlier this week.
In January, then-UM-President Seth Bodnar announced his resignation to pursue other public service. Wednesday, the final day of filing, he announced he was running as an independent for the U.S. Senate to try to unseat Republican incumbent Steve Daines.
Commissioner of Higher Education Clayton Christian earlier said that with the advice of AGB Search, a firm that’s helped the Montana University System conduct other executive searches, he would undertake an expedited process to appoint a new president.
Christian has been providing brief updates on a website dedicated to the search. Last week, he said he and AGB Search are reviewing applications, and the pool of candidates was “strong and diverse.”
The commissioner also announced he was convening a small working group to assist in the search, members who “represent a variety of perspectives to assist in vetting and narrowing this field of exceptional candidates.”
In an email this week, Hollenbaugh identified the members of the working group who are assisting Christian with application review as:
- Community member and former Regent Joyce Dombrouski
- Faculty Senate Chairperson Valerie Moody
- Staff Senate President Dominic Beccari
- Administration Representative John DeBoer (Vice President of Academic Affairs)
- ASUM (Associated Students of the University of Montana) President Buddy Wilson
Hollenbaugh declined to comment on the way the rest of the process would unfold or the role the working group members would play.
Christian earlier said he anticipated an appointment within one to three months, or as soon as early this month.
Montana
Montana Supreme Court allows ballot measure on initiative process to move forward
HELENA — The Montana Supreme Court has ruled in favor of a proposed ballot measure intended to simplify the process for introducing ballot measures in the future.
Justices ruled 5-2 that the measure, currently called Ballot Issue #8, did not violate state requirements that a single constitutional amendment can’t make multiple separate changes to the Montana Constitution.
“We’re very grateful to the Montana Supreme Court for agreeing with us that the attorney general’s finding of legal insufficiency for Ballot Issue #8 was incorrect,” said SK Rossi, a spokesperson for Montanans Decide, the group sponsoring the measure.
Montanans Decide argues the Montana Legislature has passed laws making it harder for the public to propose and pass ballot issues. The Montana Constitution already guarantees the people the right to pass laws and amendments through ballot measures, but Ballot Issue #8 would expand that to include a right to “impartial, predictable, transparent, and expeditious processes” for proposing those measures. It would seek to prevent “interference from the government or the use of government resources to support or oppose the ballot issue.”
Attorney General Austin Knudsen’s office argued the measure “implicitly amended” multiple provisions in the state constitution, including by limiting the “power and authority of public officials to speak officially on ballot issues that affect those officials’ public duties” and by putting restrictions on judges and on the Legislature. Montanans Decide, the group sponsoring Ballot Issue #8, disagreed – and the majority of justices sided with them.
“Its provisions operate together to define and protect a single constitutional right—the people’s exercise of initiative and referendum,” wrote Justice Katherine Bidegaray in the majority opinion. “They are closely related components of one constitutional design.”
Bidegaray’s majority opinion was joined by Justices Jim Shea, Laurie McKinnon, Beth Baker and Ingrid Gustafson.
Chief Justice Cory Swanson and Justice Jim Rice each wrote dissenting opinions, saying they would have upheld Knudsen’s decision to disallow Ballot Issue #8. Rice said the language restricting government interference with a ballot issue was not closely related and should have been a separate vote. Swanson agreed with Rice and said the measure’s attempt to fix a timeline for legal cases surrounding ballot measures was also a separate substantial change.
In a statement, Chase Scheuer, a spokesperson for Knudsen’s office, reacted to the decision.
“This decision only further muddies the courts’ jurisprudence on ballot issue questions,” he said. “This initiative would violate the separate vote requirement by amending multiple parts of the Montana Constitution, but the court contradicted its prior rulings. Attorney General Knudsen will continue to neutrally apply the separate vote requirement in his review of ballot initiatives.”
The court’s decision means that Knudsen’s office will now need to approve ballot language for Ballot Issue #8. Once that language is finalized, Montanans Decide could begin gathering signatures to qualify the measure for the November ballot.
However, last year, sponsors of another initiative went to the Supreme Court to argue that the ballot statements Knudsen prepared were misleading. If Montanans Decide object to their ballot statements, that could further delay signature gathering while the case plays out in court.
“Regardless, we’re going to push as hard as we can to get those petitions into the hands of voters and let them sign and support if they so choose,” said Rossi.
Rossi said the legal battle this measure has gone through – and the possibility of more to come – shows why Ballot Issue #8 is needed.
“The state Legislature, and also statewide elected officials, have taken every opportunity to create burdens and hurdles and rigamarole for campaigns to get through in order to just get to the signature gathering phase, and then to get through the signature gathering phase onto the ballot, and then get through the election phase,” said Rossi. “The reason we filed this initiative is just to make sure that the process is simple, that the timeline is clear, and that Montanans can have their will heard when they want to propose and pass laws that they deem worthy.”
Montana
Christi Jacobsen enters race for Western House seat
HELENA, Mont. — Montana Secretary of State Christi Jacobsen is running for Montana’s Western Congressional District seat, entering the race a day after U.S. Rep. Ryan Zinke announced he would not seek reelection.
Jacobsen’s announcement sets up a new contest for the open seat after Zinke, a Republican, said he would seek reelection.
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