The fight for Montana's water

Can Montana water law survive the state's changing climate and rapidly growing population?
Yellowstone River flows at full bank
The Yellowstone River flows at full bank, downstream of Livingston, Montana (photo: Pat Clayton / Fish Eye Guy Photography).

Earlier this spring, Montana Fish Wildlife & Parks (FWP) warned of a historic decline in brown trout populations in southern Montana. In some streams, brown trout populations have dropped to the lowest levels recorded in 50 years. As a result, FWP asked the public for input on proposed fishing restrictions designed to protect brown trout in some of Montana’s most heralded trout water, including the Big Hole, Ruby, Boulder, Beaverhead, Yellowstone, Madison, Shields, and Stillwater rivers. Citing scientific studies conducted both by FWP and the U.S. Geological Survey, FWP identified low streamflows as the “primary limiting factor for many brown trout populations.”

Throughout the latter half of June, Montana’s famed Smith River—which is such a coveted river to float that thousands participate in an annual lottery for limited float permits—repeatedly broke records for low flows. The Smith became largely unfloatable by the second week of June, ending its season at least a month earlier than usual.

FWP has already taken action to protect trout populations around the state, where low flows and spiking water temperatures are creating lethal conditions. “Hoot owl restrictions,” which close rivers to fishing after 2 p.m., are in place on the Smith, Sun, Beaverhead, Big Hole, Jefferson, and Madison rivers. The Shields River, a tributary to the Yellowstone, is under full closure from its mouth to Rock Creek. According to the Upper Missouri Waterkeeper, these rivers are experiencing “death by a thousand cuts,” as low flows, climate change-induced warming temperatures, development, pollution, and increased fishing pressure combine to threaten Montana’s fisheries.

Despite the fact that these threats are increasing in both frequency and severity, all are either intermittent or relatively new challenges, except one. For far longer than Montana has been managing its trout as both an ecological and economic resource, Montana rivers have suffered low flows, due primarily to water withdrawals, or “diversions,” by the agricultural industry for use in irrigating farm and ranchland. For more than a century, thanks to what some consider a flawed Montana law, water users have been able to withdraw millions of gallons of water, sometimes with little or no regard for the consequences of their actions—in some cases draining rivers dry.

As stream conditions threaten to worsen, some are fighting to keep more of Montana’s water in its rivers and streams. For decades, one man—93-year-old Joe Gutkoski—has been leading that fight.

The beginning

Joe Gutkoski remembers glancing toward the Gallatin River as he crossed the interstate bridge while driving to his home in Bozeman. Squatting in the river, a dozer was raking the riverbed, pushing cobble aside to funnel water into an irrigation headgate.

“They were taking every drop they could from the Gallatin,” Gutkoski said. “The next time I looked, they had drug five of those concrete parking barriers in. With those five barriers, they were getting every drop. Not one drop was making it downstream.”

The summer of 1988 was hot and dry in Montana. After years of drought, plants had withered, and much of Yellowstone National Park went up in flames. Farmers and ranchers diverted as much streamwater as they could to keep crops and livestock alive. Fish died by the thousands as many trout streams, including the Gallatin, Big Hole, Beaverhead and Madison were reduced to trickles. Downstream of a diversion constructed by the Baker Ditch Company, the Gallatin riverbed was dry. Could irrigators do that? Sure. They were within their rights. But that didn’t sit well with Gutkoski, and he’s been trying to do something about it ever since.

ruby river diversion montana
A single diversion — this one on the on the Ruby River — can divert a large portion of a river's flow. In mid-June, streamflows in the Ruby River dropped to a mere 20 cfs, causing water temperatures to spike to over 80 degrees Fahrenheit and leading to emergency fishing closures (photo: Pat Clayton / Fish Eye Guy Photography).

Farmers and ranchers own many of Montana’s oldest water rights. In Montana and much of the West, those rights follow the doctrine of prior appropriation—a “first in time, first in right” policy—in which the oldest water rights have priority over newer ones. When streamflows decrease, an irrigator with senior water rights can “make a call” requiring any junior rights owners upstream to stop diverting water until the senior user gets their full amount. The system is further complicated by the fact that most river basins are over-appropriated. In many watersheds, more water is claimed on paper than actually exists.

In 1990, Gutkoski and other Montana Wildlife Federation leaders decided to join a few Gallatin River water-rights owners in suing the ditch company. Though the case eventually made it all the way to the Montana Supreme Court, the court ruled that the ditch company hadn’t violated Montana’s prior appropriation doctrine, handing the irrigators a victory.

“That court decision—leaving a beautiful river like that dry—that is still law,” Gutkoski said. “[Montana Fish, Wildlife & Parks] has always considered [the Gallatin] an important fishery. But with that Supreme Court decision, you can dry up an important fishery if you want to and you have the power.”

Changing the Law

After striking out in court, Gutkoski decided it was time to change the law to prevent water rights owners from draining Montana streams dry. He crafted a bill that would require farmers, ranchers, real estate developments, and other water users to limit their use in dry years to levels that would preserve at least 25% of a stream’s average annual flow. For almost four decades since, he’s stalked Montana legislators every biennium, trying to get them to sponsor his minimum in-stream flow bill.

Mill creek - paradise valley - above diversion Mill creek - paradise valley - diversion dam Mill creek - paradise valley - below diversion
This sequence of images of Mill Creek were captured on the same day, just a few miles apart. Images were captured upstream [top], at a diversion dam/site [middle], and downstream [bottom] of the creek's irrigation diversions (photos: Pat Clayton / Fish Eye Guy Photography).

But to some Montanans, preserving even that modest amount of streamflow is audacious. Gutkoski points out that his bill wouldn't limit water withdrawals from every river in Montana, only those that FWP considers important fisheries and which are consistently, sometimes chronically, dewatered. Currently, that list includes hundreds of streams, though FWP cautions that it hasn’t assessed all the streams in the state and hasn’t updated the list in 16 years.

“I thought [the bill] was very practical,” Gutkoski said. “It was predicated on what our FWP biologists said: maintain [the rivers and streams on] this list ... we weren’t bothering any mining claims or what-have-you. It was only the streams that were considered important fisheries.”

Over the years, the minimum in-stream flow bill has been introduced several times but has never gotten far. Gutkoski suspects that’s due to the lobbying and powerful influence of the agricultural industry. Even though the economic importance of Montana’s agricultural industry is declining—according to the latest available data, agriculture ranks 8th among Montana’s leading economic sectors and provides only 1% of Montana jobs, trailing growing industries like finance, government, and business services—agricultural interests hold enormous political power within the state. With about two-thirds of Montana’s land occupied by approximately 27,000 farms, many legislators are connected to the agricultural industry and listen to the irrigators who testify that such proposed regulations are a threat to their livelihood.

But that’s only half the story.

The Conservation Community Strikes Back

In 2011, Tom Facey of Missoula was beginning his first session as a senator in the Montana Legislature when a senior colleague asked him to carry Gutkoski’s bill. According to Facey, he didn’t realize what he was getting into.

“I put in the bill and all the conservation community comes unglued — Trout Unlimited ... every stakeholder in the book came unglued,” Facey said. “The ag guys weren’t too happy either ... I guess [Gutkoski] was a lone maverick, and it’s sort of like a lot of things in life: at first blush, it seems like a good idea.”

During the bill’s committee hearing, agriculture and real estate industry representatives predictably opposed the bill. But behind the scenes, it was conservation groups who pushed back even harder, Facey said.

Most conservation groups consider Gutkoski’s bill to be destined for failure, believing it could never pass a Republican-controlled Legislature. Montana water law has a 150-year history, and the state has piles of case law that back it up. Perhaps more importantly, in Montana, water rights are property. Farmers and ranchers can trade them, sell them, lease them and borrow money against them. Gutkoski’s bill, if passed, would alter some Montanans’ property—which the bill’s detractors argue is akin to stealing a chunk of someone’s land.

Agreeing to oppose the in-stream flow bill has also served as a convenient bargaining chip for conservation groups needing the backing of the agricultural industry to pass other bills that fund FWP programs and increase access for hunters and anglers. And they’ve used it in that role more than once.

According to Bruce Farling, former executive director of Montana Trout Unlimited, Gutkoski would occasionally find a freshman legislator from an urban district and talk him into carrying the bill.

“Almost always, those legislators would call me or Stan Bradshaw, and we’d walk them through the problems with Joe’s approach,” Farling said. “Then they’d be like, ‘Okay, we’re not going to push this bill.’”

There was a time when Trout Unlimited and other conservation groups considered an idea similar to Gutkoski’s. During the 1990 legislative session, Farling and others attempted to win approval for a few pilot projects that would have allowed some irrigation water to remain in streams. But the proposals were stymied by strong opposition from the Montana Stockgrowers Association—a powerful organization that represents ranchers across the state. Frustrated, Farling and his conservation partners debated pursuing even more aggressive measures to achieve the same end—such as going to court or backing a statewide ballot initiative to see if voters would approve an in-stream flow mandate.

Everybody who depends on hunting or fishing on private land in this state would have come after Trout Unlimited if we would have done that.

“[Those] two were nuclear,” Farling said. “We could probably win in court, maybe get a ballot initiative passed. But that wouldn’t be the end of it. We’d get all this blowback that would really be extreme. And then what would we win?”

According to Farling, backing Gutkoski’s bill would have had the same effect as backing a court action or a ballot initiative—it would have brought down the wrath of the agricultural industry and landowners, which could have repercussions for hunters and anglers. In previous legislatures, when agricultural producers were angered by state actions, agriculture-friendly legislators voted to cut funding for sportsmen’s programs. Landowners have also protested by withdrawing their property from Montana’s Block Management Program, which allows public hunters to hunt on private land.

“Everybody who depends on hunting or fishing on private land in this state would have come after Trout Unlimited if we would have done that,” Farling said.

The Third Way

Under Farling’s leadership, which ended in 2017, Trout Unlimited never backed Gutkoski’s bill. Instead, Trout Unlimited and other conservation groups such as the Montana Wildlife Federation and Clark Fork Coalition opted to chip away at the system, lobbying to pass one small bill after another.

They won changes to water law that recognized the act of leaving water in-stream for fish as a beneficial use so new water rights claims could be established solely for the purpose of maintaining streamflows. As recently as 30 years ago, Montana law considered only human uses, such as crop irrigation, drinking or recreation, as beneficial uses.

In 1992, conservationists also helped acquire in-stream water rights for FWP in 245 streams or stream reaches in the Upper Missouri River Basin. Unfortunately, the rights are very junior, so FWP can’t make demands on many other water users to leave water in the river. But the water rights puts FWP in the game, giving it the authority to object to any changes to water rights on the river.

yellowstone irrigation canal
Diverted, cold stream water flows down an irrigation canal near the Yellowstone River (photo: Pat Clayton / Fish Eye Guy Photography).

They also worked to overcome the use-it-or-lose-it aspect of water rights. Traditionally, if any portion of a water claim went unused, the state could seize the rights to the unused amount and sell them to someone else. As a result, irrigators would often waste unneeded water simply to avoid losing their rights to it. Thanks in part to Trout Unlimited and other conservation groups, the law was changed to allow water right owners to leave water in the river or lease a portion of their rights to the state or conservation organizations, while retaining the option to get them back if needed.

Outside the Legislature, conservation organizations worked with watershed groups to develop drought plans, such as those of the Big Hole Watershed Committee and the Blackfoot Challenge where irrigators agreed to stop using water once streamflows dropped below acute levels. Those levels are less than Gutkoski’s 25% of average annual flow and the irrigators' commitments are voluntary and non-binding, but at least the rivers haven’t dwindled to a trickle.

“They’re kind of market approaches — which I kinda hate — but we really didn’t have many options,” Farling said. “I told Joe all these other options, they’re painstaking, they’re not sweeping, but in sum, they can really make a difference. He’d say, ‘That’s great stuff, Bruce.’ And then the next Legislature, he’d want to pass his bill again.”

Fishermen don’t have guts like we had ... We charge in there ... they all pussyfoot around. Now, this is just me talking, but they’ve never won anything significant.

Fighting On

Ask Gutkoski why he persists in taking his bill back to the Legislature, and he’ll say that despite the efforts that conservation groups have made to chip away at the issue, the Baker Ditch problem hasn’t gone away. In dry years, like the current one, Montana streams are still chronically dewatered, and fish still die on parched riverbeds.

joe gutkoski
Joe Gutkoski holds a copy of his minimum in-stream flow bill (photo: Laura Lundquist).

Gutkoski points to streams like Mill Creek (pictured above), a crucial Paradise Valley tributary whose cold flows are vital to maintaining trout-supporting temperatures in the Yellowstone River. Yellowstone cutthroat trout especially depend on Mill Creek’s cold water. But during drought years, 100% of what remained in the lower stretch of the creek was diverted for irrigation. In 1986, taxpayers spent more than $2 million to build a pipeline for irrigators so less water would be lost and a small portion of Mill Creek’s flows could be preserved for the benefit of the Yellowstone fishery. Not long after, some ranchers went back on the deal and expanded their water use. Now, the lowest 6 miles of Mill Creek is often bone-dry again in late summer.

Even where landowners have cooperated in restoration efforts, many streams still drop below 25% of their average annual flows. According to Gutkoski, the collaborative approach now favored by much of the conservation community never goes far enough.

“Fishermen don’t have guts like we had,” Gutkoski said, his soft voice taking on a growl.

“We charge in there ... they all pussyfoot around. Now, this is just me talking, but they’ve never won anything significant. They never pull that tight with the harness. They’re very selective, and they have a lot of money. They come out with their propaganda that doesn’t talk like I do," Gutkoski griped, adding "I’ve cussed them out too many times.”


While we get all distracted on the latest locations, gear & techniques .. the resource is fading away right in front of us.
Eventually it'll be mostly gone & we'll be left thinking ; 'what happened'
Elections matter & have a direct effect on the future prospects of all types outdoor recreation.