In the lawsuit, Coppes is asking a state district court judge in Helena to evaluate whether Montana’s government is fulfilling its constitutional obligation to prevent the “unreasonable depletion and degradation of natural resources” in its administration of water, which the state Constitution says is “the property of the state for the use of the people.”
Although it may be years before the lawsuit is decided, Coppes told MTFP that this summer presented the right moment to bring a ‘critical, missing piece’ to the conversation: an evaluation of how Montana’s public trust water resources interact with water rights, which are treated as a property interest that can be bought, sold, leased or — in the case of an “abandonment” — forfeited.
Upper Missouri Waterkeeper and its co-plaintiffs, Alliance for the Wild Rockies and Save Bull Trout, are critical of a July 2021 letter Gov. Greg Gianforte sent to FWP directing the agency to “forego a call” on the Smith and Shields rivers because it would “provide questionable, if any, measurable benefit.” The environmental groups argue that the “first in time, first in right” framework for allocating water Gianforte alluded to in his letter too often leaves fisheries in a lurch. They contend that FWP is often unwilling or slow to ask more junior water-right holders to stop using water, even in the face of unprecedented ....
Graham Coppes entered the spring hopeful. Despite a slow start to winter, most western Montana river basins were reporting a near-average snowpack by April. But when warm May temperatures brought an underwhelming runoff, Coppes knew it would be a long, difficult summer for aquatic ecosystems and the $1.3 billion recreational economy they support.
Slow-motion alarm set in as Coppes, a Missoula-based attorney, watched one blue-ribbon river after another dip to record lows. Montana Fish, Wildlife and Parks, which forecasted the difficult summer ahead in June, responded by partially or fully closing more than a dozen rivers to fishing after they reached low streamflow thresholds and high temperatures that can endanger trout.
In a lawsuit filed on Aug. 8, Coppes argued that FWP should have done more for iconic rivers such as the Blackfoot, Clark Fork and Big Hole to benefit the fish that live in them and the broader Montana public. Since then, rivers have remained at record lows, and Coppes told Montana Free Press in a recent conversation that the future is going to be “pretty bleak” for Montana’s aquatic ecosystems unless the state starts using and enforcing its water rights and reservations to bolster instream flows more assertively and proactively.
Upper Missouri Waterkeeper and its co-plaintiffs, Alliance for the Wild Rockies and Save Bull Trout, are critical of a July 2021 letter Gov. Greg Gianforte sent to FWP directing the agency to “forego a call” on the Smith and Shields rivers because it would “provide questionable, if any, measurable benefit.” The environmental groups argue that the “first in time, first in right” framework for allocating water Gianforte alluded to in his letter too often leaves fisheries in a lurch. They contend that FWP is often unwilling or slow to ask more junior water-right holders to stop using water, even in the face of unprecedented conditions.
But to other stakeholders, the state-held water rights in question are too junior — and too modest — to turn the tide of diminishing streamflows. Agricultural groups argue that the current system of water management, which benefits those with the oldest water rights, is too foundational and entrenched to change. Still others say FWP is right to defer to locally developed watershed groups that have taken root in basins where demand is snowballing for an increasingly scarce resource. The Big Hole Watershed Committee and Blackfoot Challenge, for example, say carrots have a stronger track record than sticks when it comes to improving watershed resilience.
The organizations’ executive directors wrote in an early September letter to the editor that cooperative, voluntary conservation measures are working in their basins and highlighted six-figure financial sacrifices irrigators have made to bolster streamflows. Requiring the state to use a heavy-handed approach to managing its instream flow water rights is “a short track to picking a handful of winners and leaving many more losers, including the fisheries and aquatic health of our streams,” they concluded.
Bill Schenk, who started working on instream flows for FWP in 2003, echoed this sentiment in a late September conversation with MTFP. He said stakeholder-led efforts have proven to be a “more durable, long-lasting solution” than sending out call letters alone. He also described the 84-page Water Right Call Protocol the agency issued in 2022 as an “almost verbatim” record of what FWP has been doing for years.
“There’s nothing to be gained by vilifying landowners and water users,” Schenk added. “The ecological system and the community economic system need to coexist.”
Coppes acknowledged that he’s “kicked a little bit of a hornet’s nest” with the lawsuit, but maintains that the status quo isn’t working.
“We can’t sit back and throw our hands up and say, ‘This is all we can do. We just have to accept these shitty conditions and fish dying.’”