State of Montana Website Montana State Parks Website
The Legal Landscape
Ray Kuhns Wildlife Area
Ray Kuhns Wildlife Area

Introduction

The legal landscape of environmental and natural resources law—both nationally and in Montana—u nderwent revolutionary change after 1970. Indeed, all of modern environmental and natural resources law has developed since the late 1960s. Whether it was a function of political activism spawned by the Viet Nam War, a growing awareness of the environmental implications of decades of industrial expansion, or a combination of these and many other factors, environmental laws such as the National Environmental Policy Act of 1969, the Clean Air Act of 1970, the Clean Water Act of 1972 and the Endangered Species Act of 1973 received widespread bipartisan support at the national level. Similarly, many of our laws governing management of the vast public lands were reformed during this period, including the Federal Land Policy and Management Act and the National Forest Management Act, both passed in 1976.

Concern with environmental quality was widespread in Montana as well. Environmental quality and the environmental effects of a century of mining in the state were high on the list of concerns of the delegates to Montana's 1971 Constitutional Convention. Their work resulted in Montana's 1972 Constitution establishing the inalienable right of every individual to a clean and healthful environment and imposing obligations on the state legislature to protect the environment, to prevent the unreasonable depletion and degradation of natural resources, and to assure that lands disturbed by the taking of natural resources are reclaimed. The Montana Legislature adopted the Montana Clean Air Act and the Montana Water Quality Act in 1967, the Montana Environmental Policy Act in 1971, and the Major Facility Sitting Act in 1973.

The last 30 years have also witnessed significant developments in the field of Indian law, with major implications for the management of natural resources in Indian Country. Tribal governments have come into their own during this period, including in some tribal governments wildlife and natural resource departments both capable and committed to protecting tribal interests. Tribal interests in wildlife and natural resources may extend well beyond the geographic boundaries of tribal reservations to encompass off-reservation activities with an impact on the reservation and, depending on the nature of the rights established when the reservation was created, activities occurring in the tribe's aboriginal hunting and fishing grounds. In addition, Congress has expressly authorized Indian jurisdiction over a number of environmental programs.

The laws addressing environmental protection and natural resources are largely statutory and administrative, as opposed to judicial (although the judiciary plays an important role in interpreting the laws). As a result, these laws are responsive to changes in public values and public interests, as filtered through the legislative process. All of the laws mentioned above that were adopted in the late 1960s and early 1970s have since been amended; some in only minor respects and some significantly. On an annual basis in Washington and a semi-annual basis in Helena, efforts are made to revise these laws to better reflect current public values (or at least perceptions of those values) and to accord with current scientific understanding. It is the challenge of these laws to provide stability while responding in due course to changes in public values and interests and advances in scientific knowledge.

This section provides a brief snapshot of many of the laws directly and indirectly affecting fish and wildlife in Montana. Laws regulating hunting and fishing and protecting endangered species have obvious impacts on fish and wildlife; but laws regulating the allocation of water and the subdivision and development of land, for example, have implications for fish and wildlife that are no less significant, even if less obvious.

Fish and Wildlife Management

The laws directly affecting the management of fish and wildlife generally seek a balance between conservation on the one hand and recreation and the economic benefits of sport fishing and hunting on the other. The legal developments in this area range from defining the extent of state authority to regulate wildlife to specific wildlife management issues such as alternative livestock ranching and Yellowstone bison.

The Foundation for State Fish and Wildlife Management Responsibilities—T he Public Trust and The Police Power

Throughout most of the twentieth century, it was understood that states derived their regulatory authority over fish and wildlife from a combination of the state's ownership interest in wildlife and the state's inherent police power to legislate for the public health, safety and welfare. An 1896 U.S. Supreme Court ruling provided that the common ownership of game by the people of the state—and the resulting public trust that must be exercised by the state for the benefit of its citizens—and the state's inherent police power endowed the state exclusively with the right to regulate the wildlife within its borders. 1

In 1978, the U.S. Supreme Court, in a case challenging the differential fees charged by Montana for resident and nonresident hunting licenses, signaled a shift away from a state's absolute sovereignty over its wildlife resources. The Court went so far as to characterize the theory of state ownership of wildlife as "a 19 th century legal fiction;" although the Court went on to uphold the state's authority based on the state's police power. Commentators and state courts (including those in Montana) have argued that the Supreme Court's decisions have not overruled the historical theory of wildlife being owned in common and held in trust by the state. The Montana Supreme Court has restricted the U.S. Supreme Court's decisions as applying only to wildlife regulations implicating federal constitutional issues. 2 For all other purposes, the Montana court held "the ownership of wild animals is in the state, held by it in its sovereign capacity for the use and benefit of the people generally, and that neither such animals nor parts thereof are subject to private ownership except insofar as the state may choose to make them so." 3

Wildlife advocates, in Montana and elsewhere, have turned to the public trust theory as a check on state legislative and state administrative actions affecting wildlife. 4 The theory itself is evolving, with some advocates arguing the state's obligation is to manage wildlife for the benefit of the citizens of the state, while others argue the state's obligation is to manage wildlife and resources for the "diversity and stability of the resident biotic community." 5 The public trust doctrine was raised in an argument before the Montana Supreme Court in 1995 in an attempt to prevent domestic sheep grazing on public land in the Sula National Forest because of the threat of disease transmission to wild sheep populations. 6 The National Wildlife Federation filed an amicus brief arguing for application of the public trust doctrine to halt the grazing; however, the court avoided incorporating the doctrine in its decision, deciding the case based on the insufficiency of the Forest Service's environmental review. 7

The Regulation of Wildlife with Interstate Implications

For more than a century, the federal courts have been asked to strike down state regulations governing wildlife that have interstate implications, generally on the ground that such regulations violate the U.S. Constitution's commerce clause, which vests exclusive jurisdiction in Congress to regulate interstate commerce. In general, the U.S. Supreme Court has analyzed state wildlife laws with interstate implications by employing the same criteria it uses to evaluate other state laws with interstate implications: (I) does the challenged statute regulate evenhandedly, with only "incidental" effects on interstate commerce; (II) does the challenged statute discriminate against interstate commerce either on its face or in practical effect; (III) does the statute serve a legitimate local purpose; and (IV) are there alternative means that could promote this local purpose as well without discriminating against interstate commerce. Although the U.S. Supreme Court upheld Montana's practice of charging different fees for resident and nonresident hunters in 1978, a recent case in the federal Ninth Circuit Court of Appeals suggests the law in this area may be changing. 8 In a challenge to Arizona's ten percent cap on the number of nonresident elk licenses, the Ninth Circuit ruled that Arizona's cap substantially affects and discriminates against interstate commerce and therefore is subject to strict scrutiny and may be upheld only if Arizona can show that it has no other means to advance its legitimate interest in regulating hunting to conserve its population of game and maintain recreational opportunities for its citizens. The U.S. Supreme Court declined to review the Ninth Circuit decision.

Major Federal Wildlife Restoration Funding Sources for State Wildlife Agencies

The Federal Aid in Wildlife Restoration Act of 1937, commonly called the Pittman-Robertson Wildlife Restoration Act, 9 provides federal funding to states for management and restoration of wildlife. Pittman-Robertson funds are generated by an 11-percent manufacturers' excise tax on sporting rifles, shotguns, ammunition, and archery equipment used in hunting, and by a 10 percent manufacturers' excise tax on handguns. The U.S. Treasury Department collects the taxes and transfers the money to the U.S. Fish and Wildlife Service, which may retain a portion of the funds for administrative services, then allocates the remainder to state wildlife agencies. States match Pittman Robertson funding with a 1/4 match ($1 of state money for every $4 of Pittman-Robertson funding).

Since it was created in 1937, the Pittman-Robertson program has generated more than $2 billion for wildlife and wildlife-related recreation. 10 Between 1966 and 1985, Pittman Robertson funding increased from about $24 million to $128 million. 11 Examples of the types of projects funded through the Pittman-Robertson Act include wildlife habitat improvement, research on wildlife problems, surveys and inventories of wildlife populations and habitats, provision for public use of wildlife resources, hunter education programs, and development of shooting ranges. Pittman Robertson funding may not be used for other activities commonly associated with state wildlife management agencies such as law enforcement or public relations. Apportionment of Pittman-Robertson funding is based on a formula that takes into account the total area of the state and the number of licensed hunters in the state. In 2003, this formula produced a final allocation for Montana totaling $5,958,327. 12

The Federal Aid in Sport fish Restoration Act, also known as the Dingell-Johnson Act of 1950, 13 was modeled after the Pittman-Robertson Act to create a similar program for management, conservation, and restoration of fishery resources. Following the model provided by Pittman-Robertson, the Dingell-Johnson Act is funded through an excise tax collected by the U.S. Treasury from the manufacturers of fishing rods, reels, creels, lures, flies and artificial baits.

Similar to the formula established for allocation of Pittman-Robertson funds, each state receives Dingell-Johnson funds based on 60 percent of its licensed anglers (fishermen) and 40 percent of its land and water area. Dingell-Johnson funding also requires a 1/4 match by the state for each expenditure. In 2003, Montana received $6.298,060 in Federal Aid in Sport Fish Restoration funds. 14

Montana's Fish, Wildlife & Parks Commission

In Montana, most of the state's policies concerning the protection and management of wildlife are established by the Fish, Wildlife & Parks Commission, which consists of five members appointed by the governor for staggered four-year terms. 15 The counties in Montana are divided into 5 districts and one commissioner is appointed from each district. The Commission's authority extends among other matters to setting the policies for the protection, preservation, management and propagation of wildlife; establishing the hunting, fishing, and trapping rules of the Department of Fish, Wildlife & Parks; establishing wildlife refuges and bird and game preserves; and approving all acquisitions or transfers of interests in land or water by the Department of Fish, Wildlife and Parks. 16 For further information, see the Fish, Wildlife & Parks Commission Web site.

Wildlife Management on Private Lands—The Block Management Program and Conservation Easements

Much of Montana's premier wildlife habitat is privately owned for agriculture and recreation. At one level, there is little new in that statement. For much of the past century, most of the plains of eastern Montana and the valleys of western Montana have been in private ownership. At another level, however, that ownership has changed significantly in the past 30 years, especially in western Montana. A significant number of the large, working farms and ranches of the past have been divided into smaller farms and ranches or subdivisions. Some of the large parcels have been sold to persons who reside elsewhere, but who hold these large parcels for recreation or investment. 17

The implications for wildlife and those who enjoy observing or hunting wildlife can be profound. As farms and ranches are divided into smaller parcels, wildlife habitat is altered and fragmented and interactions with humans and domestic animals are increased. As long-time agricultural families accustomed to opening their properties to friends and neighbors for hunting are replaced by newcomers with different values and expectations, access to wildlife is restricted. The combination of the physical fragmentation of wildlife habitat and the privatization of access to wildlife present major challenges to policymakers in their efforts to preserve both wildlife habitat and access to wildlife. Two important responses to these challenges in Montana have been the Block Management Program and the utilization of conservation easements.

Montana has developed one of the nation's premier private lands access programs making private lands available for public hunting. Under the cooperative Block Management Program managed by the Montana Department of Fish, Wildlife & Parks, private landowners voluntarily enroll and provide free access to members of the public. 18 In return, the participating landowners may receive complimentary sportsmen's licenses, limited liability protection, livestock loss reimbursement, and compensation (up to $12,000) to offset potential hunting impacts. 19 Block Management agreements can also be flexibly tailored to accommodate the landowner's agricultural operation, and the administrative responsibilities for the program fall on the Department of Fish, Wildlife & Parks. The public is also greatly benefited by increased access to wildlife resources. This program is expected to become increasingly important as farming and ranching lands, which have traditionally been made available to the public for hunting as a matter of courtesy, continue to be converted to residential and recreational endeavors closed to public access. For more information see Access to Recreation and FWP's Block Management Program.

Conservation easements are voluntary conveyances of partial legal interests in land. Conservation easements allow land to remain in private ownership while ensuring the property's natural resource values will not be compromised by land uses that are incompatible with those resource values. This is accomplished by placing perpetual restrictions—tailored to meet the agricultural, economic and ecological goals of the landowner—on subdivision or other development.

Montana allows the granting of both perpetual and term conservation easements, but term easements must be granted or renewed for minimum 15-year terms. 20 While the state legislature has spelled out allowable restrictions that may be imposed by a conservation easement, the definition broadly encompasses acts that are detrimental to conservation, and "… other acts or uses detrimental to such retention of land or water areas in their existing conditions." 21 The legislature has specifically authorized the acquisition of conservation easement by "qualified private organizations." 22

Activities generally restricted by a conservation easement include: (1) subdivision for residential or commercial activities, (2) construction of non-agricultural buildings, (3) nonagricultural commercial activities, (4) dumping of non-compostable or toxic waste, and (5) surface mining. Conversely, conservation easements on agricultural lands typically allow the landowner to: (1) continue existing agricultural and silvicultural uses, (2) construct buildings, fences, water and other improvements necessary for agriculture that are compatible with conservation objectives, (3) sell, devise, or gift the property subject to terms of the easement, (4) control access to the property, (5) construct family or employee residences that are compatible with the conservation objectives of the easement; (6) protect, restore and enhance fish and wildlife habitat, and (7) engage in any other land uses not specifically prohibited by the easement. 23

Conservation easements are an incentive-based conservation tool—in contrast to mandatory land use regulations. Conservation easements are granted voluntarily by a property owner in return for certain economic benefits, which can include the payment of compensation to the property owner or income tax deductions equal to the decrease in the property's value as a result of the development restrictions. Conservation easements also reduce the property's value for purposes of real estate taxes and estate taxes.

Because many of the agencies and organizations that use conservation easements to protect wildlife habitat, agricultural lands and other open space cooperate with other easement granting entities on conservation projects, much of their reporting overlaps, making it difficult to pinpoint the exact acreage under easement statewide. However, according to a report compiled by the State for the Secretary of Agriculture, Montana leads the nation in total acreage under conservation easement. 24 Between 1978 and 1999, the acreage protected by use of conservation easements in Montana increased from 840 acres to more than 600,000 acres. 25 More than half of that increase occurred between 1993 and 1997. 26 A more recent estimate made by the Trust for Public Lands places the total area under conservation easement in Montana at 778,500 acres. 27

In 1999, the state legislature passed the Montana Agriculture Heritage Act, 28 which created the Montana Agricultural Heritage Program to contribute state funding toward the purchase of agricultural conservation easements, or purchased development rights (PDR), to help stem the development of critical farm, ranch, and forest land with significant public values. The program was funded by an initial allocation of $1 million from the general fund, and is overseen by a citizen commission charged with acquiring conservation easements from willing sellers and donors. During its first year in existence, the commission approved eight landowner grant applications totaling $888,000. The grants were leveraged with $6.36 million from federal, local, and private sources, including the participating landowners. The program has preserved 9,923 acres of agricultural land. 29 For additional information see Room to Roam.

The Habitat Montana Program encompasses all four of the Montana Department of Fish, Wildlife & Parks' habitat conservation programs. The program most significant to a discussion of conservation easements is House Bill 526 (the program is actually named "HB 526"), which is 1987 legislation that provides annual, earmarked funding for a wildlife habitat acquisition program. The law sets aside approximately 2.8 million hunting license dollars annually to acquire interests in land through fee title acquisition, securing conservation easements or leasing. The program had helped protect nearly 250,000 acres by the end of 2001. 30

Montana's Forest Legacy Program is the state implementation of the U.S. Forest Service's Federal Forest Legacy Program, which focuses on protecting environmentally important private forest lands threatened by conversion to non- forest uses. 31 The Forest Service works with the Montana Department of Fish, Wildlife & Parks to implement the Montana Forest legacy Program. The program essentially works by granting federal funding at a 3:1 ratio to acquire fee-title to, or conservation easements on private forest lands.

The following organizations are active in arranging and holding conservation easements in Montana.

Local/Regional nonprofit land trusts National nonprofit land trusts State and Federal Agencies
Bitterroot Land Trust The Nature Conservancy Montana Department of Fish, Wildlife & Parks- Habitat Montana Program—Montana/Federal Forest Legacy Program
Five Valleys Land Trust/Rock Creek Trust Trust for Public Lands U.S. Fish And Wildlife Service—Partners for Fish and Wildlife program 32
Gallatin Valley Land Trust Rocky Mountain Elk Foundation  
Mid-Yellowstone Land Trust    
Montana Land Reliance 33
Prickly Pear Land Trust
Save Open Space, Inc.
Vital Ground Foundation
   

Alternative Livestock Ranching

In 1983, the Montana Legislature adopted Montana Code Annotated Title 87, Chapter 4, Part 4 regulating alternative livestock ranching in the state. Wildlife species considered alternative livestock include all privately owned caribou, white-tailed deer, mule deer, elk, moose, antelope, mountain sheep, and mountain goats. Until 2000, alternative livestock offered agricultural operations additional income from selling various wildlife parts to fill overseas and unique market niches and from selling trophy-hunting opportunities inside fenced enclosures. In 2000, Montana voters approved initiative 143 (I-143), which banned the shooting of captive game farm animals for a fee, banned the licensing of new game farm operations, and prohibited the transfer of game farm licenses to new operators. I-143 has been challenged in both state and federal court, but so far it has withstood legal challenge. In the federal court challenge, the United States District Court for the District of Montana denied the challengers' motion for a preliminary injunction, which included the court's analysis of the likelihood that the challengers would prevail on the merits of their claims. 34 The Federal District Court noted that "protection of its wildlife is one of a state's most important interests," 35 and "[t]he state has a legitimate interest in promoting fair chase hunting ethics and Montana's hunting heritage and legacy when mandated by popular vote or otherwise." 36 The state court actions have not directly challenged the constitutionality of I-143, but the parties who have sought to circumvent the restrictions on shooting of game farm animals for a fee have so far been unsuccessful. 37

The Management of Yellowstone Bison

Managing the bison that wander outside the boundaries of Yellowstone National Park has a long and checkered history, pitting environmental, wildlife and agricultural interests against each other. The controversy centers around the fact that bison carry brucellosis, which can cause pregnant cattle to abort their unborn fetuses. Although there has never been a documented case of bison passing brucellosis to cattle on the open range, Montana's livestock interests have been understandably reluctant to gamble with the state's brucellosis-free status, which provides immunity from expensive testing and export requirements enforced by the U.S. Department of Agriculture.

Prior to 1967, the National Park Service intensively managed Yellowstone's bison population through corralling and culling. Because the Park Service maintained bison herds at artificially low numbers and confined them to certain areas within the Park, they did not wander outside the Park's boundaries. However, in 1967 the Park Service issued a new management plan that called for managing bison according to the goal of maintaining a truly wild, free-ranging bison population subject only to the influences of natural regulatory processes. The new management approach saw bison populations burgeon in the Park from 397 in 1967 to 2,500 in 1988 and approximately 4,000 in 2003. Since 1970, various management strategies for controlling the northern Yellowstone bison entering Montana have been tried, litigated and abandoned. The Park Service has tried hazing and fencing to prevent the animals from leaving the Park; Montana and the Park Service joined in "cropping" efforts (shooting) the bison as they left the Park boundaries. In 1985, the Montana Legislature authorized a program of regulated public hunting of the bison. Public protest and negative publicity brought an end to public hunting in 1991.

When it repealed public hunting, the Montana Legislature reclassified bison from "wildlife" to a "species in need of management," which resulted in splitting management jurisdiction over bison outside the Park between the Department of Fish, Wildlife & Parks and the Department of Livestock. The Department of Livestock is now charged with regulating publicly owned wild bison in the state that pose a threat to persons or livestock through the transmission of contagious disease. The 2003 Montana Legislature adopted Senate Bill 395, which provides for the sport hunting of wild bison as a management tool. The Montana Department of Fish, Wildlife & Parks is authorized to issue a limited number of licenses for the hunting of wild bison when authorized by the state veterinarian and the Montana Department of Livestock.

Tribal Rights to Manage Fish and Wildlife on Reservation and to Fish and Hunt Off-Reservation

As with many questions involving Indian law, it is difficult to assert principles that apply universally. Many questions involving jurisdiction of the tribes vis a vis the state or involving the rights of individual tribal members off-reservation are inextricably bound either to the particular treaty or other basis for establishing the Indian reservation or to the particular implications of the issue on tribal interests and tribal self-government. While some questions concerning tribal jurisdiction and rights involving fish and wildlife have been resolved in Montana, many of the difficult issues remain unresolved.

In State v. Shook, the Montana Supreme Court in 2002 upheld the Montana Fish and Game Commission 1997 regulation that prohibits big game hunting by non-tribal members on reservations. 38 The court held that such a regulation was constitutional and that such a regulation was a rational means to preserve wildlife populations for hunting by Indians, thus preserving the rights retained by the Indians to hunt and fish within their reservations. At the same time, the court acknowledged that the issue of jurisdiction to regulate hunting on reservations is extremely complex and is best left to resolution by agreement between the state and each tribe.

In 1990, the Federal District Court in Montana held that the Confederated Salish and Kootenai Tribes (CSKT) had the exclusive right to control fishing in the south half of Flathead Lake, 39 premised largely on a prior federal court ruling that found in favor of tribal jurisdiction over nonmembers' use of the bed and banks and waters of the south half of Flathead Lake because of the direct effect of such use on the political integrity, economic security and health and welfare of the Tribe. 40 In contrast, the court held that the issue of tribal/state jurisdiction with regard to other streams within the reservation was not clear.

The case that is largely responsible for the complexity of this subject is Montana v. U.S., a 1981 decision of the U.S. Supreme Court which found that although the Crow Tribe could regulate hunting and fishing by nonmembers on land belonging to the Tribe or held by the United States in trust for the Tribe, it had no power to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers. 41 The Court held, however, that the question of tribal jurisdiction depends in each instance on whether the conduct sought to be regulated by the tribe threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Thus, the question of tribal/state jurisdiction becomes case- and fact-specific.

Most treaties in Montana also reserved to the tribes the right to hunt and fish in customary areas outside the reservation in common with citizens of the state. These rights raise questions both as to the lands encompassed within the reference to customary areas and the extent to which tribal members are subject to state hunting and fishing regulations off-reservation. A related subject, and one with potentially significant implications for fish and wildlife management, concerns the extent to which these off-reservation hunting and fishing rights impose on the state an affirmative obligation to protect habitat and otherwise manage resources to preserve the fish and wildlife that are the subject of these rights.

Managing the Public Lands

Managing the public lands, at the state but especially at the federal level, has become as much an exercise in managing human conflict as in managing on-the-ground resources. For much of the country's history, the vast public lands of the West were primarily considered a stockpile of land, with title held in the federal government until the time arrived to convey title to the property (or at least the right to use the property) into private hands. Beginning in the late 1800s, Congresses and Presidents reserved and withdrew public lands from their availability for transfer to private parties. Lands were set aside as national parks, forest reserves, and wildlife refuges. Until the last half of the twentieth century, the public lands of the West managed by the U.S. Forest Service and the Bureau of Land Management were, by legal decree, managed primarily (if not exclusively) for their economic productivity. The forests were managed to maximize timber harvesting, the plains and grasslands were managed chiefly as grazing lands, and nearly all public lands were available for mineral exploration and extraction. Beginning in 1960 and extending through 1976, Congress responded to changes in public values by revising the purposes for which public lands were to be managed. 42 In addition to the long-standing purposes of timber harvesting and grazing, the public lands were also to be managed for outdoor recreation, watershed and wildlife and fish purposes. While these acknowledgments of multiple interests and multiple purposes may make good politics, they greatly complicate management. Recreational and wildlife uses often conflict with timber harvesting and grazing; and since the law's management objectives are not prioritized, public land managers must make decisions that benefit some uses at the expense of others—leading inevitably to conflict among those holding different views of what the management agency's priorities ought to be.

Public land management is further complicated by the many levels of government and multiple agencies involved. The federal, state and tribal governments each manage the public lands within their legal jurisdiction. These public lands often abut each other, and even when they do not physically adjoin, management decisions in one area impact the environmental and habitat conditions in another. Federal public lands themselves are overseen by five agencies within two different departments.

The U.S. Forest Service

Management of the national forests (except for areas designated as wilderness, see below) is governed by the Multiple Use-Sustained Yield Act of 1960 (MUSY), which declares that "the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes." 43 In 1976, the National Forest Management Act (NFMA) was enacted to establish a planning process whereby the Forest Service would make its decisions implementing the goals of MUSY with respect to specific areas managed by the Forest Service. 44 In addition, planning and management decisions by the Forest Service (as well as other agencies) are subject to the National Environmental Policy Act (NEPA), which provides a public process for assessing and evaluating the environmental effects of federal government decisions significantly affecting the quality of the human environment. 45 The result is that the Forest Service is charged with developing and implementing forest management plans and specific forest management practices responsive to congressionally mandated objectives that often conflict with each other. These decisions are made in a public process which itself provides for public participation and public challenge, and in a process subject to the mandates of NEPA with its public participation components and opportunities for public challenge. Not surprisingly, the Forest Service has experienced frustration and delay in carrying out its management responsibilities as its decisions are frequently challenged in both administrative and judicial forums. 46

The Bureau of Land Management

The Bureau of Land Management was formed in 1946 with the merger of the Grazing Service and the General Land Office. The Taylor Grazing Act of 1934 47 was the primary guidance for the BLM until Congress enacted the Federal Land Policy Management Act of 1976 (FLPMA). 48 While the Taylor Grazing Act authorized the establishment of grazing districts and the use of federal public lands for the grazing of private livestock pursuant to permits, FLPMA was designed to be the BLM's equivalent of the Forest Service's multiple use directives, requiring BLM to manage lands not already dedicated to specific uses "under principles of multiple use and sustained yield," in accordance with land use plans to be developed by the Department of Interior. 49

Wilderness Areas

Any federal public lands may be designated as wilderness pursuant to the Wilderness Act of 1964. 50 Lands so designated are in essence removed from the legal mandates otherwise directing their management, and they are instead to be administered by the agencies responsible for their administration "for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness." 51 Except to the extent the Wilderness Act provides protection for preexisting valid claims, wilderness designation prohibits subsequent uses inconsistent with maintaining the wilderness character. Numerous current controversies center around the management of areas identified by Congress for study as potential wilderness. Management of these areas is to avoid jeopardizing the wilderness values, while respecting that the areas have not yet (and may never be) designated as wilderness. These wilderness studies were originally expected to last a number of years, but they have now extended into decades.

Mining and Mineral Development on the Federal Public Lands

In the midst of all the public lands and environmental laws that have undergone serious revision since the middle of the twentieth century stands the General Mining Law of 1872. 52 Although Congress has supplemented or limited the General Mining Law, the basic scheme established by the law remains unaltered since its adoption more than a century and a quarter ago. The General Mining Law provides a process by which individuals may discover and mine minerals on unwithdrawn public lands free of charge; and, after complying with process requirements; they may purchase the land for a nominal charge. Although lands such as national parks, wilderness areas and wildlife refuges are not open to new hardrock development, most BLM and forest service lands are. In addition, laws reserving wilderness and forest lands do so subject to valid preexisting claims.

Oil, gas, coal, shale oil and four fertilizer minerals are subject to mineral leasing under the Mineral Leasing Act. 53 The Mineral Leasing Act establishes a system of bidding for leases, entitling the highest bidder to exclusive rights to mine or drill an area while paying royalties to the federal government. Unlike the General Mining Law, the government retains ownership of the surface lands and retains more control over the development.

The National Park Service

Unlike wilderness areas which are to be managed to preserve their wilderness characteristics, even at the expense of human enjoyment, the national parks are to be managed to "conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such a manner and by such means as will leave them unimpaired for the enjoyment of future generations." 54 Therein lies the challenge, especially with a burgeoning population both visiting and living near the National Parks: how to conserve the special features of the parks while facilitating the public's enjoyment of those features. As discussed previously, Yellowstone National Park is embroiled in a longstanding controversy over the management of the bison who wander from the park each winter in search of food. A second continuing controversy at Yellowstone revolves around winter recreational access to the Park, especially snowmobile access. People seeking the quiet solitude of a near-wilderness experience object to the noise and pollution caused by snowmobiles in the Park, as well as the threat snowmobiles pose to wildlife. This controversy typifies the disputes that can arise between access and preservation.

The Management of State Public Lands

In Montana, the state public lands are managed by the Department of Natural Resources and Conservation, under the direction of the board of land commissioners. 55 The board of land commissioners, which consists of, the governor, superintendent of public instruction, state auditor, secretary of state and attorney general, 56 has general authority over the care, management and disposition of state lands. In the exercise of these powers, "the guiding principle is that these lands and funds [arising from the leasing, use, sale, and disposition of these lands] are held in trust for the support of education, and for the attainment of other worthy objects helpful to the well-being of the people of this state…" 57

As with the federal lands, there is often a tension among the purposes for which state lands are to be managed, although state law perhaps provides more guidance regarding the priority of interests. On the one hand, state law is clear that the state is to "seek the highest development of state-owned lands in order that they might be placed to their highest and best use and thereby derive greater revenue for the support of the common schools, the university system, and other institutions benefiting there from, and that in so doing the economy of the local community as well as the state is benefited as a result of the impact of the development." 58 On the other hand, the Montana Statutes indicate that state lands are to be managed under the multiple-use management concept, which is defined as utilizing the state lands in "that combination best meeting the needs of the people and the beneficiaries of the trust …" 59 These statutes make clear that the primary purpose of state lands is as an economic resource generating revenue for the state. The people of the state may use the state lands for recreational purposes, but even then the state is to be compensated for the value of the recreation. 60

The Management of Tribal Lands

Under the supervision of the Bureau of Indian Affairs, tribes have the power to regulate the use of resources within the boundaries of their reservations. As with other governments, tribes may through their tribal constitutions or other adopted laws establish policies and priorities governing the management of tribal lands and resources.

The Protection of Endangered Species—The Federal Endangered Species Act

The purposes of the Federal Endangered Species Act of 1973 (ESA) 61 are to: "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." 62 To fulfill these purposes, the ESA provides for the identification and listing of endangered and threatened species of flora and fauna, it imposes obligations and limits on federal agencies whose actions may impact listed species, and it prohibits actions by private parties and governments that pose particular risks to listed species.

Listing

The trigger for applying the substantive rules of the ESA is whether the proposed action may affect a threatened or endangered species. As a result, the "listing" process assumes tremendous importance. The ESA defines an "endangered" species as "any species, which is in danger of extinction throughout all or a significant portion of its range;" 63 and a "threatened" species is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 64 The Secretary of the Interior is to list species as endangered or threatened either on his own initiative or in response to a petition from an interested person, if the Secretary finds that the species is endangered or threatened because of habitat modification; over utilization for commercial, recreational, scientific or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors.

Within 12 months after receiving a petition requesting that a species be listed, the Secretary must find that the listing is not warranted, that it is warranted, or that the listing is warranted but other pending listing proposals preclude the Secretary from proceeding with the listing determination at the present time. 65 The Secretary may also withhold listing on the basis of protection efforts being made by a state or any political subdivision of a state. 66 The law imposes limited protections for species proposed for listing, where the final listing determination is pending. 67 The ESA requires that at least once every five years the Secretary is to review all the species listed as endangered or threatened to determine whether any of the species should be removed from the list, or changed from threatened to endangered or vice versa. 68

Critical Habitat Designation

The ESA anticipates that when the Secretary lists a species as endangered or threatened, the Secretary will also designate the habitat of the species that is considered to be critical habitat. 69 Critical habitat consists of: (i) specific areas within the geographical area occupied by the species at the time of listing on which are found physical or biological features essential to the conservation of the species which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time of listing if the Secretary determines such areas are essential for the conservation of the species. 70 In designating critical habitat, however, the Secretary is to take into consideration the economic and other relevant impacts of specifying any particular area as critical habitat. 71 Further, the Secretary "may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned." 72

Recovery Plans and Delisting

The Secretary must develop and implement recovery plans for the conservation and survival of endangered and threatened species, unless the Secretary finds that such a plan will not promote the 73 conservation of the species. 74 The Secretary is to give priority to species that are most likely to benefit from the plans, especially if the species is or may be in conflict with construction, other development projects or other forms of economic activity. 75

Recovery plans address the ultimate purpose of the ESA: to restore endangered species to the point at which they no longer require the protections of the act for survival. Recovery is one of three reasons supporting delisting a species. A delisting decision based on recovery of the species is to be based on the same five factors relevant to the listing decision. In point of fact, since most species are threatened or endangered because of habitat modification, the focus of attention in delisting is whether sufficient habitat has been restored and protected to assure recovery of the species. Under the ESA, the listing decision (and thus also the delisting decision) is to take account of the existing state regulatory mechanisms to protect the species and its habitat. Thus, a delisting decision may rest in significant part on the adequacy of a state's (or several states') regulatory mechanisms to provide or protect habitat or otherwise protect the species. 76

The "Taking" Prohibition

Section 9 of the ESA makes it unlawful for any person (which is defined to include individuals; corporations; states or political subdivisions of states; or officers or employees or departments of the federal, state or local government 77 to "take" a listed species. 78 The term "take" is broadly defined in the ESA to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct." 79 It is clear that this statutory directive makes it unlawful for any person or entity to engage in any such activity directly impacting the listed species. The Department of Interior has interpreted "harm" in the definition of "take" to include indirect injury to a listed species through alteration or destruction of habitat. 80 In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the U.S. Supreme Court upheld the Department's interpretation to the extent the habitat modification causes actual, as opposed to hypothetical or speculative, death or injury to identifiable protected animals. 81

Incidental Take Permit Exception to a Section 9 Taking

An action that would otherwise be prohibited as a taking under section 9 may be authorized by the Secretary of the Interior if the taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity and the taking will not appreciably reduce the likelihood of the survival and recovery of the species. 82 The applicant for an "incidental take permit" must submit to the Secretary a habitat conservation plan, specifying the impacts likely to result from the taking, the steps the applicant will take to minimize and mitigate those impacts, and the alternatives to a taking that the applicant considered and why those alternatives are not being utilized. 83 The Secretary must issue the incidental take permit if the Secretary finds that the taking will be incidental, the applicant will (to the maximum extent practicable) minimize and mitigate the impacts of the taking, the applicant will ensure that adequate funding for the plan will be provided, the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild, and the applicant will fulfill any other measures the Secretary has determined are required as being necessary or appropriate for purposes of the habitat conservation plan. 84

The Limit on Federal Actions

Section 7 of the ESA provides that federal agencies may not authorize, fund or carry out actions "likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which has been determined to be critical." 85 The extension of the limit on federal actions to actions, which the federal government "authorizes", implicates many private party actions that require federal government approvals or permits.

The ESA establishes an explicit, progressive analysis to be followed by a federal agency whose action may affect a threatened or endangered species. First, the acting federal agency is to inquire of the U.S. Fish and Wildlife Service whether there are any endangered or threatened species or species proposed for listing in the area of the proposed action. 86 If endangered or threatened species are believed to be in the area of the proposed action, then the acting federal agency must conduct a biological assessment to identify any endangered or threatened species, which are likely to be affected by the proposed action. 87 If the biological assessment determines that a threatened or endangered species is likely to be affected by the proposed action, the acting agency must formally consult with the U.S. Fish and Wildlife Service. The formal consultation results in a biological opinion issued by the FWS. 88 If the biological opinion concludes that the proposed action would jeopardize the species or destroy or adversely modify critical habitat, then the action may not go forward unless the FWS can suggest an alternative that avoids such jeopardy, destruction or adverse modification. 89

Incidental Take Permit Exception to Section 7

If the biological opinion concludes that the proposed agency action will not result in jeopardy to the species or destruction or adverse habitat modification, but will result in the "taking" of an endangered species or threatened species incidental to the agency action, then the Secretary may allow the action to proceed subject to a Section 7 incidental take permit. 90 In the Section 7 incidental take permit, the Secretary shall specify the impact of the incidental taking on the species, those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize the impact on the species, and the terms and conditions that the federal agency must comply with to implement the necessary measures. 91

The Duty of Federal Agencies to Conserve Species

Federal agencies are also under a statutory obligation to "conserve" listed species. 92 This duty is in addition to the prohibitions against jeopardizing species or harming habitat. The duty to conserve requires agencies to consult, develop and take whatever actions are required to ensure the survival of each listed species. 93

Water

Pollution

Water quality has significant, obvious implications for fish and wildlife. Since the federal Clean Water Act (CWA) 94 was adopted in 1972, the control of water pollution and the management of water quality have been addressed through a program of cooperative federalism. Under this program of cooperative federalism, the federal government establishes a comprehensive program (the Clean Water Act and its regulations) which is largely managed by the federal Environmental Protection Agency (EPA); however, states, if they so choose, may assume management of the federal program within their borders. Montana has been delegated authority to implement the CWA, pursuant to the Montana Water Quality Act. 95 Tribal governments may also qualify to be treated the same as a state under the approach of cooperative federalism. States have the primary responsibility for establishing water quality standards for the waters within the state. 96

The CWA and the Montana Water Quality Act consist of several approaches to control water pollution and to protect the quality of the state's waters. These approaches include a comprehensive permit program regulating the discharge of pollutants to the waters of the state from discrete (point) sources, water quality standards designed to assure that waters of the state can fulfill the purposes served by those waters (including wildlife-related purposes such as the propagation of fish and wildlife and recreation), a program intended to limit the contribution of pollutants to the waters of the state from point sources and nonpoint sources (such as runoff from agricultural lands), a program restricting the degradation of state waters that are already cleaner than state standards, and regulations governing the discharge of dredged or fill material into wetlands subject to federal government jurisdiction.

Controlling the Discharge of Pollutants from Point Sources—The Permit Program

The CWA prohibits the discharge of a pollutant from a discernable, discrete and confined conveyance (a point source) to the waters of the state unless the discharger has a valid permit. 97 Montana law is actually somewhat more expansive in this respect. Under Montana law, it is unlawful for any person to cause pollution of state waters without a permit, 98 and "pollution" is defined to mean any alteration of the physical, chemical, or biological properties of state waters that exceeds that permitted by Montana water quality standards, or the discharge, seepage, drainage, infiltration or flow of substances into state waters that is likely to create a nuisance or render the waters harmful, detrimental or injurious to public health, recreation, safety or welfare, to livestock, or to wild animals, birds, fish or other wildlife. 99 In addition, the prohibitions in Montana law clearly extend to the protection of groundwater as well as surface water, 100 while there is continuing uncertainty over the extent to which the federal CWA protects groundwater.

As noted, pollutant discharges are allowed under both the federal and state laws, provided the discharger first obtains a permit. In Montana, point source discharges are required to obtain a Montana Pollutant Discharge Elimination System permit (MPDES permit). An MPDES permit authorizes the discharge of pollutants; however, the permit imposes limits on those discharges. The discharge limits in the permit reflect two factors. The first factor is U.S. EPA technology-based standards that are industry specific —reflecting the degree of pollution control that is technologically and economically viable for facilities in that particular industry. This factor establishes the minimum discharge limits applicable to the particular discharger. The second factor is derived from state-adopted water quality standards. Each state is to divide all of its surface waters into discrete segments reflecting differences in physical, chemical and biological properties. Each segment is then classified in accordance with its present and future most beneficial uses. 101 The state then adopts water quality standards, reflecting the physical, chemical and biological characteristics of water necessary to fully support the different uses. The result is that for each water segment in the state there are water quality standards defining the minimum water quality necessary to support the uses designated for that segment. If the Montana Department of Environmental Quality (DEQ) concludes that a discharge, even after meeting the applicable technology-based standards will cause the receiving water to exceed the applicable water quality standards, then the DEQ is to impose further restrictions in the permit so that the water quality standards will not be exceeded.

Controlling Pollution from Nonpoint Sources—The Total Maximum Daily Load Program

Most observers concur that the federal CWA and state law equivalents have done a good job controlling pollution from point sources. The acts have been less successful in addressing nonpoint pollution, for example, pollution from surface water runoff and infiltration from agricultural and silvicultural operations, urban stormwater and construction site runoff, and runoff from abandoned mines. One approach to address these issues has been to characterize some traditional nonpoint sources as point sources in order to include them within the point source permit program that imposes specific discharge standards. This approach has been adopted for some urban stormwater runoff, construction site runoff and abandoned mines. Although this approach has the benefit of imposing permit requirements on these activities, the standards imposed have been more in the nature of best management practices, and activities have been subjected to general permits, rather than to site-specific permits. The result has been improvement in controlling pollution from these sources, but less than complete success.

Another approach has evolved under the CWA's total maximum daily load (TMDL) program. 102 That program requires states first to identify all waters within the state that, even after all point sources comply with the relevant technology-based discharge standards, fail to meet the relevant water quality standards. 103 After the state has compiled this list of impaired waterbodies, the state is to establish a priority ranking of these waters, taking into account the severity of the pollution and the uses to be made of the waters. 104 Thereafter, each state is to assess (in order of priority) the impaired waterbodies and determine for each waterbody the total maximum daily load of pollutants that the waterbody can tolerate and still meet the applicable water quality standards. 105 With this information in hand, the state is to develop a program limiting both point and nonpoint sources of pollution. The federal EPA has been struggling with the implementation of the TMDL program and implementation of the program in Montana is still in its infancy. There is hope that the program might finally present a vehicle for addressing nonpoint source pollution, but others believe the program is too cumbersome and that the program assumes a state of scientific knowledge that simply does not exist.

All of the water quality programs described above are concerned with restoring polluted waters to a condition meeting the water quality standards or with preventing pollution that would cause waters to exceed the water quality standards. Particularly in a state like Montana, which still has many waterbodies with water quality better than the water quality standards, there is an additional concern with protecting the existing water quality, rather than allowing it to be degraded to the level of the water quality standards. To address this concern, the federal CWA requires each state to adopt an anti-degradation policy (generally referred to as "nondegradation" in Montana). Montana's nondegradation policy is a three-tiered approach. 106 First, existing uses of state waters and the level of water quality necessary to protect those uses must be maintained and protected. This absolute standard prohibits anyone from altering the water quality in a way that would jeopardize the use of that water for an existing use, such as a fishery. Second, state waters that have been classified as outstanding resource waters 107 may not be degraded, meaning that there can be no worsening of the physical, biological or chemical properties of those waters. Third, waters of the state that meet or exceed the relevant water quality standards may not be degraded unless the DEQ authorizes degradation after determining that: (i) the proposed project will result in important economic or social development and the benefit of the project exceeds the costs to society of allowing water quality degradation, (ii) existing and anticipated uses of state waters will be protected, (iii) some degradation is necessary because there are no economically, environmentally, and technologically feasible modifications to the proposed project that would result in no degradation, and (iv) the project will fully implement the least degrading water quality protection practices determined by DEQ to be economically, environmentally, and technologically feasible. These stringent nondegradation protections are reduced somewhat by provisions in Montana law that exempt certain activities classified as "nonsignificant" from the nondegradation rules. 108

Controlling the Discharge of Dredged or Fill Material into Wetlands

The federal CWA also regulates the discharge of dredged or fill material into the waters of the United States. Under the CWA, it is unlawful for any person to discharge dredged or fill material into the waters of the United States unless they first obtain a permit to do so from the U.S. Army Corps of Engineers. 109 The authority of the CWA extends only to waters subject to the jurisdiction of the federal government, a jurisdiction whose reach is dependent on the Commerce Clause of the U.S. Constitution. Not all surface waters of the country are subject to federal jurisdiction, and certainly all wetlands within a state are not subject to federal jurisdiction. The courts are continuing to identify the factors determining which wetlands are subject to federal jurisdiction. 110 Given the importance of wetlands to fish and wildlife, the extent of federal protection of wetlands in Montana is a significant issue.

The CWA does not prohibit the dredging or filling of wetlands; rather it establishes a permit program and criteria and conditions applicable to those who desire to engage in those activities. In summary, the provisions discourage the filling of wetlands where there are alternatives to the project that do not entail the filling of wetlands. Where the filling of wetlands is unavoidable, the CWA and regulations implementing the CWA require that the loss of wetlands be minimized and that the loss of any wetlands be mitigated. Mitigation usually takes the form of enhancing or developing new wetlands in the area so as to compensate for any wetland values or functions (e.g., wildlife habitat, filtration) lost as a result of the filling of wetlands.

The Role of Tribes Under the CWA

Under the CWA, tribal governments may qualify to be treated the same as states in the cooperative federalism arrangement established by the CWA. 111 To qualify for treatment as a state, an Indian tribe must show to the EPA that the tribe has a governing body carrying out substantial governmental duties and powers and that the tribe is reasonably expected to be capable of carrying out the functions required for the administration of the CWA. Once a tribe has qualified for treatment as a state, the tribe may (subject to EPA approval as to each program) assume responsibility for issuing permits to dischargers on the reservation, establish water quality standards applicable to waters on the reservation, or engage in most other activities available to states under the CWA. An important issue concerns the extent to which a tribe may regulate and adopt standards applicable to non-Indians on fee lands within the exterior boundaries of a reservation. It appears that with respect to protecting the quality of waters within the reservation, tribes will have authority even over non-Indians on fee lands. 112

The Right to Use Water—Water Allocation in Montana

Wildlife and most especially fish need water in streams to survive; recreationists want water in streams so they can boat and float. At the same time, farmers and ranchers need water for irrigation and stock ponds and residents need water for domestic purposes. In semi-arid Montana, particularly in drought years, there is insufficient water in some watersheds to satisfy all the interests. The question for the law is whose interests in the use of the water are superior. The answer to that question has developed, and continues to develop, through a combination of the state constitution, state statutes, and court decisions interpreting both.

The Tradition of the Prior Appropriation Doctrine

In Montana, as in most of the arid and semi-arid West, 113 rights to the use of water are established pursuant to the prior appropriation doctrine. The foundation of the doctrine is simple: "first in time, first in right." A party could obtain a right to use a quantity of water simply by having an intent to apply the water to a beneficial use, actually diverting the water from the stream or other natural source and then applying the water to the beneficial use within a reasonable time. That right would continue so long as the person entitled to the water right did not abandon the right, even if there were some years in which the water was not used. The right to use the water was subject to the rights of all those who had previously obtained their rights to use water from the same source. In years in which there was an inadequate flow to satisfy all those entitled to use water from a stream, water would be allocated so that the senior water right holder would be entitled to his full share, then the second most senior, etc., until the supply of water was exhausted and junior rights holders would be left without additional water. Such a scheme seemed sensible in an unsettled, arid land where the government wanted to encourage people to invest in water-intensive enterprises like farming, ranching and mining. Water was viewed as an economic asset, necessary to fuel the settlement of the West. And this water was only useful when removed from the stream or the ground, when it could be applied in economically important ways like irrigation, stock water or transporting mining slurry. If settlers were to be encouraged to invest time and money in establishing farms, ranches and mines, they needed to be assured of their entitlement to use water. "First in time, first in right" provided that assurance.

In-Stream Flow Rights

Under this tradition, the two essential elements to establish a right to use water were removing the water from its natural source (a diversion) and applying that water to a beneficial use (such as domestic water, irrigation, mining). Leaving water in a stream did not involve a diversion, and water in-stream to support a fishery was not a recognized beneficial use—thus leaving in-stream uses of water outside the established framework for legally recognized uses of water. The logical outcome of the prior appropriation doctrine, which encouraged the diversion of water and its application to uses out of the stream and which did not recognize in-stream uses as valid beneficial uses, was that the entire flow of streams (and more) could be allocated to diversionary users, with the result that streams could be entirely dewatered.

In 1966, the then Montana Fish and Game Commission asserted a water right in the public, acquired by the public's beneficial use of Armstrong Spring Creek in Park County for fishing. 114 The Commission argued the public's historical use of the creek as a fishing stream and natural fish hatchery which predated the plaintiff's dam would require the plaintiff to release water through a fish ladder to maintain sufficient in-stream flow for the fishery. Although the Montana Supreme Court held there were insufficient facts to support the Commission's argument, the court was prescient in its dicta:

Under the proper circumstances we feel that such a public interest [the public's beneficial use of the stream for fishing] should be recognized. This issue will inevitably grow more pressing as increasing demands are made on our water resources. An abundance of good trout streams is unquestionably of considerable value to the people of Montana. 115

In the wake of Paradise Rainbow, the Montana Statutes were amended in 1969 to authorize the Fish and Game Commission to file for new in-stream appropriative rights in 12 blue-ribbon fishing streams. 116 These rights, which have come to be known as "Murphy rights," were the first in-stream reservation of water to support a fishery.

Subsequent years witnessed substantial changes to Montana's water laws, including changes with implications for in-stream flow rights. Montana's 1972 Constitution reaffirmed the state's prior appropriation doctrine, but it also required the state legislature to develop a system for the administration, control and regulation of water rights, including a system of centralized records. 117 In response to the constitutional directive, the state legislature in 1973 adopted the Montana Water Use Act. 118 The Water Use Act established a comprehensive adjudication system to review all existing water rights, it subjected all new water rights to a permit system, and it recognized in-stream flows as a legitimate use of state waters. 119 Under the latter provision, the state, any political subdivision of the state, the United States or any agency of the United States may apply to the state Department of Natural Resources and Conservation to acquire a state water reservation "to maintain a minimum flow, level, or quality of water throughout the year or at periods or for a length of time that the department designates." This provision clearly authorizes the state to apply to have water left in a stream; however, the state's rights under such a reservation will be subject to all pre-existing rights. If a stream has already been over-allocated, such a reservation will be of no help.

To provide the state with some ability to respond where important fisheries are threatened by over-allocation, in 1989 the state legislature authorized the Department of Fish, Wildlife & Parks to restore or augment stream flows by leasing water from water rights holders. 120 In other words, the Department may pay irrigators or others with water rights to forego their rights of diversion so that more water may remain in the stream.

A recent Montana Supreme Court case overruled conflicting precedent and raises the prospect that longstanding public use of waters for fish, wildlife, and recreation may entitle the public to a valid in-stream flow right that predates diversionary uses initiated after the public use. 121 In Bean Lake III, the Montana Supreme Court held that "to the extent Bean Lake [decided in 1988] suggests that fish, wildlife, and recreational uses are not beneficial uses, it simply misstates Montana precedent and is hereby overruled." 122 The court further clarified that a diversion of water was not required to perfect a water right where the beneficial use does not physically require a diversion. The court instructed the Water Court, in the course of its basin-by-basin water rights adjudications, to identify, review and hold hearings on all pre-1973 recreation, fish and wildlife claims and determine the validity of such claims. 123

Federal and Indian Reserved Water Rights

The allocation of water on federal lands held by agencies such as the Bureau of Land Management and the Forest Service, and at least part of the allocation of water on Indian reservations, is based on the reserved water rights doctrine. Under that doctrine, when the federal government withdrew land from the public domain and reserved it for a federal purpose, or when land was set aside as an Indian reservation, the government by implication reserved un-appropriated water to the extent needed to accomplish the purposes of the reservation. As such, the United States or Indian tribe acquired a reserved water right on the date of the reservation that is superior to the rights of all subsequent appropriators. The United States Supreme Court in Winters v. United States first considered the development of Indian reserved water rights. 124 What have come to be known as "Winters rights" are water rights vested in the tribe (or in the United States government for the benefit of the tribe) at the time the reservation is created, in an amount necessary to fulfill the purposes of the reservation. And unlike appropriative rights, Winters rights are not forfeited through nonuse.

In United States v. Adair, the Ninth Circuit Court of Appeals in a decision the U.S. Supreme Court declined to review, found that Indian tribes may also be entitled to a right to use water based upon their aboriginal use of water to support a hunting and fishing lifestyle 125 These "Adair rights" relate to an instream water use, such as sufficient flow to maintain a fishery, and they predate the establishment of the reservation.

It is one thing to establish that an Indian tribe holds Winters rights and possibly Adair rights, it is quite another to establish the quantity of water to which the tribe is entitled. The quantity of water to which the tribe is entitled must be determined, however, because the Indian water rights must ultimately be factored into the state's other water rights. In a system in which seniority and quantity determine which water rights holders are entitled to water in times of shortage, and in a system in which water sources may not be oversubscribed, the rights of all water right claimants junior to the tribal claims are in doubt until the tribe's rights are quantified. Federal law authorizes the quantification of Indian water rights, and also that of other federal reserved water rights, in state court. 126 An alternative to state court adjudication of the quantity of Indian reserved water rights is for the tribe and the state to enter into a compact, in essence negotiating an agreed quantification and other terms of management of Indian water rights. The Montana Water Use Act of 1973 established the Montana Water Rights Compact Commission for the purpose of negotiating Indian and federal reserved water rights with the tribes and the federal government. 127 To date, the Commission has completed compacts with five of Montana's seven tribal reservations. Water rights on the Blackfoot and Flathead reservations remain un-quantified.

The quantification of reserved water rights for federal lands has been much less of a priority for at least two reasons. First, many of the federal lands contain headwaters and the uses for which the lands are reserved (e.g., national forests) would call for longstanding, generally non-consumptive uses of those waters. Thus, quantification of those federal rights would not alter the stream flows historically leaving these federal lands. Second, on those federal lands that are not headwaters (e.g., many BLM lands), water has historically been used for the purposes for which the lands were reserved (e.g., stock water, support of native vegetation), and again quantification would not likely alter the historic flow regime.

The Allocation of Interstate Waters

Allocating the right to use waters that flow between states, like the Missouri and Clark Fork in Montana, is particularly difficult. Each state through which these waters flow has its own regime for allocating water rights among the citizens of that state; and in theory an upstream state employing the prior appropriation doctrine could allocate the entire river flow among its citizens. Clearly such a result would be unacceptable to downstream states and most would agree such a result would be inequitable.

Disputes involving the allocation of interstate waters have been resolved either by judicial allocation resulting from suits between states, compacts resulting from negotiations between states, or Congressional allocation (employed only once to address the allocation of the Colorado River). In suits between states, the U.S. Supreme Court has original jurisdiction. In instances in which the U.S. Supreme Court has resolved disputes over the interstate allocation of water, it has generally employed a federal common law doctrine of "equitable apportionment," in which the underlying tenet is equality of right, not equality of amount. Under this tenet, the Court is able to consider a number of equitable factors in allocating interstate waters, beyond simple priority dates of competing users. The generally preferred method for allocating rights to interstate waters is through a compact negotiated between or among the affected states. A compact is essentially a contract setting forth terms agreed to by the parties to the agreement—in this case the affected states. Under the U.S. Constitution, a compact between states is not effective until ratified by Congress. Interstate compacts have been used 22 times to allocate interstate waters. Most interstate compacts, as with most U.S. Supreme Court allocations, ultimately come down to an obligation on upstream states to deliver to downstream states a specified quantity of water or a specified proportion of the river flow.

The Right to Access Waterbodies in Montana for Recreation

In the United States, it has long been recognized that the navigable waters of inland streams and their beds and banks belong to the states, to be held by them for the use and enjoyment of the public. Pursuant to this public trust doctrine, the navigable waters of the state and the beds and banks are the property of the state, to be managed by it for the use and benefit of its citizens. This doctrine leaves open the question of where the title of a property owner abutting a navigable water leaves off, and the title of the state begins; a question of great importance to the public's right to access public waters. In an 1895 case, the Montana Supreme Court held that a riparian owner's boundary on a navigable stream, unless a contrary intent is expressed, extended to the low-water mark; on a nonnavigable lake or stream, ownership extended to the middle of the lake or stream. 128 Even so, the court held, the public had a right of access to the strip of land between the high and low water marks where private land abutted a navigable stream or river.

Montana's 1972 Constitution, several cases, and acts of the legislature have subsequently refined the law of stream access in Montana. The 1972 Constitution provides:

All surface, underground, flood, and atmospheric waters within the boundaries of state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law. 129

While generally reflecting the traditional public trust theory, the 1972 Constitution extended the public's rights to both navigable and nonnavigable waters. In a subsequent case, the Montana Supreme Court concluded that the constitutional guarantee grants the public a right to use all waters for recreational purposes that are capable of such use and that riparian landowners holding private property adjacent to Montana's streams and rivers cannot control or interfere with the public's recreational use of the waters. 130

In a case shortly thereafter, the Montana Supreme Court held the public has the right to use rivers and streams up to the high water mark, with limited portage rights around barriers. 131 The court also reaffirmed its earlier holding regarding public recreational use of streams.

Following these two cases, the 1985 legislature passed the Stream Access Law, in order to further define the boundaries of the public stream access easement and the permissible activities on the easement. 132 The Stream Access Law established two classes of water: class I waters which are navigable waters (where the state has title to the bed and banks); and class II waters, which are surface waters that are not class I waters, except lakes (the statute does not address lakes). The statute provided that "all surface waters that are capable of recreational use may be used by the public without regard to ownership of the land underlying the waters." 133 The statute defined recreational use to include activities (with some limitations) such as big game hunting, overnight camping, placement of permanent duck blinds, and boating in floatation devices or motorized craft.

As a consequence of a subsequent legal challenge to the Stream Access Law, the Montana Supreme Court held some of the statute's provisions unconstitutional. 134 Several provisions affecting class II waters were found to be unconstitutional because they were not a necessary part of the easement granted to the public for its enjoyment of Montana's waters. Further, big game hunting was disallowed because it, too, was not a necessary part of the easement granted to the public. Overnight camping and the placement of permanent objects was restricted only to situations necessary for the public's use of the water itself, and both required the permission or contractual arrangement with the riparian landowner. Finally, riparian landowners could not be made to provide portage routes around artificial barriers.

The Stream Access Law was subsequently amended to comport with the court's decision. 135 The law of stream access in Montana today appears to be that the public has a right to use and enjoy all waters of the state, free from landowner interference while using the waters. Some uses, such as overnight camping and the placement of permanent facilities like duck blinds are explicitly prohibited in certain areas. The law grants a member of the public making recreational use of the water a limited easement above the ordinary high-water mark to portage around artificial barriers in the water. The portage is to be conducted in the least intrusive manner, avoiding damage to the landowner's land and violation of the landowner's rights. 136

Land Use Planning, Subdivision Regulation and Zoning on Private Lands

As both the permanent and second-home populations of Montana grow, the state's landscape is divided, re-divided and developed. Those activities occur on private lands proximate to Montana's urban centers, but also in beautiful settings within an hour or two of those urban centers and in even more remote locations. In Montana, many of those activities are subject to few restrictions or standards. Impacts on wildlife and wildlife habitat are to be taken into account in subdivision review; but many development activities with potential impacts on wildlife and habitat do not occur in the context of a "subdivision" of land, even many divisions of land escape subdivision review, and there are no standards or criteria for how wildlife and habitat impacts are to be assessed or mitigated in the subdivision review process.

Planning, Zoning and Subdivision Regulation in Montana

By and large, Montana leaves land use regulation in the hands of local government (counties, cities and towns). Montana law authorizes local governments to employ three basic tools to address growth and development within their borders: comprehensive plans (known as "growth policies" in Montana), subdivision regulations, and zoning regulations. Of these three, state law requires only that local governments adopt subdivision regulations.

Montana began the 1970s with basic statutes authorizing (but not requiring) local governments to engage in comprehensive planning and zoning. The laws governing zoning have seen few changes since 1970. While most, larger cities in the state have adopted zoning ordinances, zoning remains the exception rather than the rule in county areas outside the larger urban areas. Where zoning does exist in counties, it has generally been adopted in limited areas pursuant to what is known as citizen-initiated zoning (or Part 1 zoning), whereby property owners within an area petition their county government to create a planning and zoning district.

The state statutes authorizing local governments to engage in comprehensive planning have been revised by the legislature on a periodic basis since their adoption in 1957, including several changes since 1970. The most significant changes were adopted by the 1999 legislature, which, for the first time, required local growth policies to address a number of listed subjects, such as housing needs, economic conditions and natural resources, and which required a strategy for implementing the objectives established in the growth policy. 137 On the other hand, the 2001 legislature and the 2003 legislature revised the law to remove growth policies as an independent basis for local governments to employ when reviewing subdivisions and development proposals.

Since subdivision regulations are the only form of local land use control required by the state, it is not surprising that local governments have relied predominantly on their subdivision regulations as the means for addressing land use issues. It is also not surprising, then, that the state laws governing subdivision regulation have been the focus of a great deal of attention (and revision) since they were first adopted. Since 1967, state law has required that an agency of state government approve the sewage and water supply facilities before a parcel may be subdivided for a use requiring the supply of water or sewage disposal. Since 1973, state law has required the governing body of every county, city and town to adopt and enforce local regulations governing the subdivision of land.

A frequent subject of amendment has been defining which parcels of land are subject to review. Local regulation of subdivisions was established in the original 1973 act as extending to divisions of land resulting in a parcel of 10 acres or less. In 1974, local jurisdiction was expanded to cover any division of land creating one or more parcels of less than 20 acres. In 1993, the law was amended again to increase local jurisdiction to include any division of land creating one or more parcels of less than 160 acres.

Another frequent subject of legislative attention has been identifying divisions of land that are exempt from local subdivision review, even though they otherwise meet the criteria of a subdivision. A major amendment in 1974 exempted from local review divisions made for the purpose of a gift or sale to members of the landowner's immediate family (the family transfer exemption), divisions in which the buyer and seller enter into a covenant that the divided land will be used exclusively for agricultural purposes, and a single division of a parcel where the transaction is an "occasional sale." The occasional sale exemption was eliminated in 1993, but the family transfers exemption remains (although it has been restricted).

Environmental, Wildlife, and Conservation Issues in Subdivision Review

Environmental, wildlife, and conservation issues should play a significant role in the review and approval of subdivisions. The local review of a preliminary subdivision plat must include the effect of the subdivision on the natural environment, wildlife, and wildlife habitat. 138 In most instances, this local review is to be informed by an environmental assessment that must include, among other matters, a description of every body or stream of surface water that may be affected by the proposed subdivision, together with available groundwater information, and a description of the topography, vegetation, and wildlife use within the area of the proposed subdivision; and a summary of the probable impacts of the proposed subdivision on wildlife and wildlife habitat. 139

At least four factors have limited the effectiveness of local subdivision review in protecting the environment and wildlife and conservation values. First, many land divisions are exempt from local subdivision review altogether, and even some subdivisions otherwise subject to some level of local review are exempt from the environmental assessment requirement. 140 Second, the quality of information provided in the environmental assessment is inconsistent. The law establishes no standards for the nature and extent of information required in the environmental assessment; thus, some environmental assessments provide incomplete or inadequate information regarding the impact of the proposed subdivision. It is up to the local community to insist on more complete information, and many local communities are reluctant to do so, or they lack the expertise or resources to even recognize that information is incomplete. Third, the law provides no standards regarding what is an unacceptable impact on environmental quality or wildlife and conservation values. And fourth, although a local government may require the sub-divider to design the subdivision to reasonably minimize potentially significant adverse impacts, mitigation is not required. 141

The overall result of the land use legal structure in Montana has been that land use planning in the state has been reactive rather than proactive; relying almost exclusively on subdivision regulation. This means that only developments qualifying as a "subdivision" receive any type of local review, and that review is constrained to a consideration of the specific proposal in light of the local government's subdivision regulations. Unless the local government's subdivision regulations have been developed to incorporate objectives and standards protecting environmental, wildlife and habitat values (which is rarely the case in Montana), subdivision review does little to protect these resources.

Montana's Constitutional Environmental Provisions

Somewhat of a wild card in understanding the law in Montana concerning environmental quality and natural resources is presented by the 1972 Montana Constitution, which grants all Montanans an inalienable right to a clean and healthful environment, 142 requires the state and each person to maintain and improve a clean and healthful environment in Montana for present and future generations, 143 and requires the legislature to provide adequate remedies for the protection of the environmental life support systems from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources. 144 There is substantial controversy over what these constitutional provisions really mean, but the Montana Supreme Court made clear that it considers the right to a clean and healthful environment to be a fundamental right entitled to stringent protection; a right to be infringed by state action only when there is a compelling state interest. 145

In a subsequent case, a majority of the Montana Supreme Court employed the constitution's environmental provisions as additional support for a warrantless search of an angler's live well. 146 (146) In the court's words: "our Constitution, laws, and regulations mandate special considerations to assure that our wild places and the creatures that inhabit them are preserved for future generations." 147 It remains to be seen the extent to which Montana's unique constitutional environmental provisions will afford protection to Montana's fish and wildlife beyond that provided by the state legislature.

Five Major Themes from the Legal Landscape

  1. The Rights of Indian Tribes to Wildlife and Natural Resources. As tribal governments in Montana assert their rights to wildlife and natural resources both on- and off-reservation, the legal landscape in the state must shift to accommodate those rights. The nature and extent of tribal rights, especially off-reservation, is evolving; but it appears likely that some tribes in Montana have off-reservation rights that will influence the state management of wildlife and the resources and habitat on which they depend.
  2. Nonpoint Source Pollution. Controlling pollution of our rivers and streams from nonpoint source pollution has proven intractable; yet we have arrived at a time when most of the pollution impairing our waterways is from nonpoint sources. The law has not yet proven up to the task; a shortcoming perhaps due to lack of political will or regulatory difficulty. The handwriting is on the all, however, and the future will bring new restrictions on the discharge of runoff and sediment from agricultural and silvicultural activities that degrade water quality and impair fish habitat.
  3. The Privatization of Access to Wildlife. As important wildlife habitat is fragmented and conveyed, our legal system needs to develop tools to assure that adequate intact habitats are preserved and public access to enjoy wildlife is maintained. Conservation easements and public access programs such as the Block Management Program are important steps toward meeting these objectives.
  4. Land Use Planning on the Private Lands. Tremendous pressure on wildlife habitat and stress on fisheries is a consequence of the development of private land. Yet, most communities in the state have done little to restrict or regulate development and subdivision, even where those activities-alone or in combination with other activities-adversely impact the environment or fish and wildlife.
  5. The Montana Constitution. The Montana Supreme Court is in the early stages of interpreting and applying the environmental provisions first appearing in the state's 1972 Constitution. It is too early to predict whether the court's interpretations will significantly alter how the state approaches fish and wildlife management, but certainly there is a potential for environmental values such as fish and wildlife to trump competing interests.

1 Geer v. Connecticut, 161 U.S. 519 (1896).

2 See, State v. Fertterer, 255 Mont. 73, 79 (1992).

3 Id. at 79.

4 Deborah G. Musiker, Tom France and Lisa A. Hallenbeck, The Public Trust and Parens waterbodies Doctrines: Protecting Wildlife in Uncertain Political Times, 16 Pub. Land L.Rev. 87 (1995).

5 Id. at 99.

6 Ravalli County Fish and Game Association, Inc. v. Montana Dept. of State Lands, 903 P.2d 1362 (Mont., 1995).

7 Id. at 1368 and 1371.

8 Conservation Force, Inc. v. Manning, 301 F.3d 985 (9 th Cir. 2002).

9 16 U.S.C. §669

10 http://www.chinabiodiversity.com/shengwudyx2/training/chapter12.htm, citing Williamson, L. L. Evolution of a Landmark Law, 1-17, and Phenicie C. K., How P-R Works 19-29, both contained in Kallman, H., Restoring America's Wildlife, United States Department of the Interior, Fish and Wildlife. (1987).

11 United States General Accounting Office, Excise taxes on Sporting Arms, Ammunition and Archery Equipment, 5 (August 1986).

12 U.S. Fish and Wildlife Service website: U.S. Fish and Wildlife Service Revised Final Apportionment of Federal Aid in Wildlife Restoration Funds for Fiscal Year 2003, http://federalaid.fws.gov/apport/wrfinalapportionment2003.pdf, accessed (October 19, 2003).

13 16 U.S.C. 777

14U.S. Fish and Wildlife Service website: U.S. Fish and Wildlife Service Final Apportionment of Federal Aid in Sport Fish Restoration Funds for Fiscal Year 2003, http://federalaid.fws.gov/sfr/fasfr.html (Accessed October 19, 2003).

15See MCA §§ 2-15-3402 and 2-15-124 (2003).

16MCA § 87-1-301 (2003)

17For example, 40% of all ranches purchased in the Greater Yellowstone Ecosystem during the past decade have been sold to buyers that can be classified as "non-agricultural," meaning they bought the property for other amenities, investment or conservation. William R. Travis, et. al., Center of the American West, Ranchland Dynamics in the Greater Yellowstone Ecosystem, 3 (July 2002).

18Mont. Code Ann. § 87-1-265—267.

19 Landowner's Guide to Montana Fish, Wildlife & Parks Landowner Programs.

20 Mont. Code Ann. §76-6-202 (2003).

21 Mont. Code Ann. §76-6-203(6), (8).

22 Mont. Code Ann. §76-6-204 (2003).

23 http://www.mtlandreliance.org/easment.htm

24 Montana Department of Fish, Wildlife & Parks, Montana Forest Legacy Program Final Assessment of Need, 47 (February 29, 2000).

25 Id.

26 Id.

27 Sonja Lee, Montana Embraces Conservation Easements; State's owners take lead in protecting land, habitat, Great Falls Tribune (March 24, 2003).

28 Mont. Code Ann. § 2-15-3312 - §3322 (2003).

29 Western Governor's Association, Trust for Public Lands and National Cattleman's Beef Association, Purchase of Development Rights; Conserving Lands, Preserving Western Livelihoods, 26 (June, 2002).

30 Western Governor's Association, Purchase of Development Rights; Conserving Lands, Preserving Western Livelihoods, 26. A detailed breakdown of the projects funded with the help of HB 526 is available at: http://fwp.mt.gov/habitat/wildlifehabitat.html

31 S ee generally, Montana Department of Fish, Wildlife & Parks, Montana Forest Legacy Program Final Assessment of Need

32 The U.S. Fish and Wildlife Service's Partners for Fish and Wildlife Program had worked to purchase easements protecting 60,000 in Montana through 2000. Additionally, the program focuses efforts on acquisition of private in-holdings in National Wildlife Refuges.

33 By the end of 2002, MLR had partnered with 515 landowners to protect nearly 500,000 acres of agricultural land, open space and wildlife habitat, including 45 miles of river corridors.

34 Kafka v. Hagener, 176 F. Supp. 2d 1037 (MT 2001).

35 Id. at 1041.

36 Id. at 1042.

37 See, Spoklie v. Mont. Dept. Of Fish, Wildlife & Parks, 2002 MT 228 (2002).

38 State v. Shook, 313 Mont. 347 (2002).

39 Confederated Salish and Kootenai Tribes v. State, 750 F. Supp. 446 (MT 1990).

40 Confederated Salish and Kootenai Tribes v. Namen, 665 F. 2d 951 (9 th Cir.), cert. denied 459 U.S. 977 (1982).

41 Montana v. United States, 450 U.S. 544 (1981).

42 See Multiple Use-Sustained Yield Act of 1960, 16 U.S.C. §§ 528-531; Federal Land Policy Management Act of 1976, 43 U.S.C. §§ 1701-1784.

43 16 U.S.C. § 528.

44 16 U.S.C. §§ 1600-1614.

45 42 U.S.C. §§ 4321-4361.

46 See, e.g., the 2002 USDA Forest Service Publication, The Process Predicament, available in pdf. format at www.fs.fed.us/projects/ last visited February 2, 2003.

47 43 U.S.C. §§ 315-315r.

48 43 U.S.C. §§ 1701-1784.

49 43 U.S.C. § 1732.

50 16 U.S.C. §§ 1131-1136.

51 16 U.S.C. § 1131(a).

52 30 U.S.C. §§ 22-45.

53 30 U.S.C. §§ 181-287.

54 National Park Service Organic Act of 1916, 16 U.S.C. §§ 1-18f. Quote is from § 1.

55 Mont. Code Ann. § 77-1-301.

56 Mont. Const. Art X, § 4.

57 Mont. Code Ann. § 77-1-202.

58 Mont. Code Ann. § 77-1-601.

59 Mont. Code Ann. § 77-1-203.

60 Mont. Code Ann. § 77-1-202(2).

61 16 U.S.C. § 1531-1544.

62 16 U.S.C. §1531(b).

63 16 U.S.C. § 1532(6).

64 16 U.S.C. § 1532(20).

65 16 U.S.C. § 1533(b)(3)(B).

66 16 U.S.C. § 1533(b)(1)(A).

67 16 U.S.C. § 1536(a)(4). If a species is only proposed for listing, federal government agencies contemplating action must "confer" with the U.S. Fish and Wildlife Service, but they are not prohibited from taking some action.

68 16 U.S.C. § 1533(c)(2).

69 16 U.S.C. § 1533(a)(3)(A). The ESA provides, however, that the designation of critical habitat may be postponed for up to one year where the critical habitat of the species is not determinable at the time the species is listed as endangered or threatened. (16 U.S.C. § 1533(b)(6)(C).

70 16 U.S.C. § 1532(5)(A).

71 16 U.S.C. § (1533(b)(2).

72 16 U.S.C. § 1533(b)(2).

73 The other two are extinction and discovering that the data on which the species was listed in the first place were incorrect. See 50 C.F.R. § 424.11 (2003).

74 16 U.S.C. § 1533(f)(1).

75 16 U.S.C. § 1533(f)(1)(A).

76 For an excellent discussion of delisting issues, see Cheever, The Rhetoric of Delisting Species Under the Endangered Species Act: How to Declare Victory Without Winning the War, 31 Environmental Law Reporter 11302 (2001).

77 16 U.S.C. § 1532(13).

78 16 U.S.C. §1538(a)(1)(B). The prohibitions against taking in section 9 of the ESA expressly apply only to endangered (and not threatened) species. However, the Secretary has the authority under the ESA to prohibit any act for threatened species that is prohibited by statutes for endangered species. 16 U.S.C. § 1533(d). By regulation, the Secretary has extended the section 9 protections to threatened species.

79 16 U.S.C. § 1532(19).

80 50 C.F.R. 17.3.

81 515 U.S. 687 (1995)

82 16 U.S.C. § 1539.

83 16 U.S.C. § 1539(a)(2)(A).

84 16 U.S.C. § 1539(a)(2)(B).

85 16 U.S.C. § 1536(a)(2).

86 16 U.S.C. § 1536(c)(1).

87 16 U.S.C. § 1536(c)(1)

88 16 U.S.C. § 1536(b)(3).

89 16 U.S.C. § 1536(b)(3)(A).

90 16 U.S.C. § 1536 (b)(4).

91 16 U.S.C. § 1536(b)(4)(C).

92 16 U.S.C. § 1536(a)(1).

93 Sierra Club v. Glickman, 156 F.3d 606 (5 th Cir. 1998).

94 33 U.S.C. §§ 1251-1387.

95 Mont. Code Ann. §§ 75-5-101—705.

96 33 U.S.C. § 1313.

97 33 U.S.C. § 1311.

98 Mont. Code Ann. § 75-5-605.

99 Mont. Code Ann. § 75-5-103(25).

100 Mont. Code Ann. § 75-5-103(29).

101 Mont. Code Ann. § 75-5-301.

102 33 U.S.C. § 1313(d).

103 33 U.S.C. § 1313(d)(1)(A).

104 33 U.S.C. § 1313(d)(1)(A).

105 33 U.S.C. § 1313(d)(1)(C).

106 Mont. Code Ann. § 75-5-303.

107 Outstanding resource waters are surface waters located wholly within the boundaries of areas designated as national parks or national wilderness areas as of October 1, 1995, or other surface or ground waters classified as such by the board of environmental review and approved by the legislature. Mont. Code Ann. §75-5-103(20).

108 Mont. Code Ann. §§ 75-5-303(2); 75-5-301(5)(c); 75-5-317.

109 33 U.S.C. § 1344.

110 See, e.g., Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).

111 33 U.S.C. § 1377.

112 Montana v. U.S. Environmental Protection Agency, 137 F.3d 1135 (9 th Cir. 1998), cert. denied 525 U.S. 921 (1998).

113 The prior appropriation doctrine is also predominant in Arizona, Colorado, Idaho, Nevada, New Mexico, Utah and Wyoming.

114 Paradise Rainbow v. Fish and Game Commission, 148 Mont. 412 (1966).

115 148 Mont. at 419—420.

116 Revised Code of Montana § 89-801.

117 Mont. Const. Art. IX, § 3.

118 Mont. Code Ann. §§ 85-2-401 et seq.

119 Mont. Code Ann. § 85-2-316.

120 Mont. Code Ann. §§ 85-2-436—437.

121 In the Matter of the Adjudication of Existing Rights to Use All the Water, Both Surface and Underground, Within the Missouri River Drainage Areas, Including All Tributaries of the Missouri River in Broadwater, Cascade, Jefferson, Lewis and Clark Counties, Montana (Basin 411), 2002 MT 216 (2002) (hereinafter " Bean Lake III").

122 2002 MT 216 paragraph 17.

123 311 Mont. 327, paragraph 41.

124 207 U.S. 564 (1908).

125 723 F.2d 1394 (9 th Cir. 1983), cert. denied Oregon v. United States, 467 U.S. 1252 (1984).

126 43 U.S.C. § 666.

127 Mont. Code Ann. § 85-2-701—705.

128 Gibson v. Kelly, 15 Mont. 417 (1895).

129 Mont. Const. Art. IX, § 3(3).

130 Montana Coalition for Stream Access, Inc. v. Curran, 210 Mont. 38 (1984).

131 Montana Coalition for Stream Access v. Hildreth, 211 Mont. 29 (1984).

132 Mont. Code Ann. §§ 23-2-301—322 (1987).

133 Mont. Codei Anni. § 23-2-302(1) (1987).

134 Galt v. State ex rel. Department of Fish, Wildlife & Parks, 225 Mont. 142 (1987).

135 Mont. Code Ann. § 23-2-301—322 (2001).

136 Mont. Code Ann. § 23-2-311 (2001).

137 Pursuant to SB 326 passed by the Montana Legislature in 2003, local communities have until 2006 to revise their growth policies to comply with the standards adopted in 1999.

138 Mont. Code Ann. §76-3-608(3).

139 Mont. Code Ann. §76-3-603(1).

140 Mont. Code Ann. §76-3-609(3).

141 Mont. Code Ann. §76-3-608(4).

142 Mont. Const. Art. II, § 3.

143 Mont. Const. Art. IX, § 1.

144 Mont. Const. Art. IX, § 1.

145 Montana Environmental Information Center v. Department of Environmental Quality, 988 P.2d 1236 (1999).

146 Montana Environmental Information Center v. Department of Environmental Quality, 988 P.2d 1236 (1999).

147 308 Mont. 276, para. 22.

This report was completed in 2004.