Working and Playing the Land 



A Wealth of Water— "Murphy Rights" and 

 Other Claims 



Fishermen and wildlife managers want Rock 

 Creek's w-aters to flow freely from the Anacx)nda- 

 Pintlars to the Clark Fork River. They fear that 

 dewatering— from such consumptive uses as 

 agriculture or mining — may exacerbate drought, 

 pollute the stream and harm a priceless natural 

 fishery--* Throughout Montana, the battle between 

 "instream flow" advocates and the ranchers who 

 need water to do business erupts emotionally dur- 

 ing every biennial legislative session. 



But Rock Creek has been afforded special 

 protection. Its scenic and recreational values were 

 recognized in 1959 when the river was designated 

 a blue ribbon trout stream, and that in turn helped 

 prompt protection for its "instream flow." In 1969, 

 the state legislature authorized the Montana Fish and 

 Game Commission to recognize a right to "instream 

 water flows" on Rock Creek and eleven other blue 

 ribbon streams.^' Usually, water rights ential a 

 diversion — someone must take water out of a 

 stream for such purposes as irrigation or mining. 

 But these water rights, known as "Murphy Rights" 

 after the sponsor of the bill, were intended to ac- 

 complish the opposite. They were to keep water in 

 the stream for the benefit of fish and other wildlife. 



The Murphy bill did not specif\^ exactly how- 

 much water was to be protected in each stream. 

 That came later, after the Montana Water Use Act 

 of 1973 called for a new permit system and legisla- 

 tion known as Senate Bill 76 in 1979 authorized a 

 statew-ide accounting and adjudication of all existing 

 water rights. -*• Under this process, the Department 

 of Fish, Wildlife and Parks claimed some of the 

 unappropriated" waters on Rock Creek and the 

 eleven other blue ribbon trout streams. (Unap- 

 propriated waters are those not already claimed for 

 other uses.) For Rock Creek, rights claimed by the 

 Department apply to the entire stream, with slightly 

 different provisions for two sections: one for the 

 1-j miles from the mouth to Ranch Creek, the other 

 for the 42 miles from Ranch Creek to the head- 

 waters.^' 



The ranchers, too, of course, have water 

 rights on Rock Creek. The earliest irrigation rights 

 date to the 18^0s." By 1900, some 30 ranches had 

 established a total of "" water use rights for irriga- 

 tion of the Rock Creek basin. ^» For ranchers, the 

 water rights adjudication process was chaotic and 

 scary; it seemed to many that in this case, .Murphy's 



Law applied as much as Murphy Rights whatever 

 could go wrong did go wrong. 



Each rancher had to submit all v\'ater use 

 claims to the Montana Water Court for judgment, 

 and by the April 30, WHl deadline, most had done 

 so. The .Montana Department of .Natural Resources 

 and Con.servation assisted the Water Court by 

 reviewing documents and aerial photographs and 

 conducting interviews to 'verify ' claims; soon the 

 Department began to complain that many claims 

 were inflated and inaccurate John Westenberg, 

 water rights technician for the Department's 

 Missoula office, argued that the Water Court should 

 put off making any decree until it had more accurate 

 information. In the lower Rock Creek basin, he 

 wrote, subdivision had created a "hodge-podge " of 

 claims 'that could lead to future water disputes."'" 



Such complaints spurred the Department of 

 Fish, Wildlife and Parks to file with the Montana 

 Supreme Court challenging the judgments— or 

 decrees — issued by the Water Court." The Depart- 

 ment eventually settled out of court, agreeing to 

 limit its investigations to issues of accuracy- and 

 completeness, and let the Water Court use this in- 

 formation to make its own judgments. 



Throughout the Rock Creek basin, 708 

 claims were filed." (Of these, 278 were for irriga- 

 tion, 244 for stockwater, and 47 for mining.)" On- 

 ly two field investigations were conducted; these 

 were for two of the 61 largest irrigation claims. »■• 

 But almost 450 objections were filed. Most were 

 by ranchers who challenged mistakes or changes 

 made in their claims. These have yet to be settled. 



Despite the years of squabbling over water 

 rights. Rock Creek ranchers are the envy of many 

 of their neighbors. "In Rock Creek," says Flint Creek 

 rancher Ed Lord, "there's more water than land that 

 can use it " Indeed, the ranchers of Flint Creek are 

 supplied with enough Rock Creek water to irrigate 

 18,000 acres of their own crops. The Flint Creek 

 Storage project, on the East Fork of Rock Creek, 

 was built in 1935 to divert water over the divide " 

 But Rock Creek ranchers still fear shoruges It is 

 "scary for the agricultural person" to see water 

 anywhere in the state reserved for instream flow, 

 says rancher Lorraine Gillies.'* 



Likewise, it is scary- for fisheries biologists to 

 contemplate the future, even for a blue ribbon trout 

 stream. The staying power of .Murphy Rights has yet 

 to be tested; theoretically, the courts can overrule 

 them in favor of "more beneficial " uses for the 

 water In addition. Murphy Rights take priority only 



