BILLINGS - Ranchers are challenging some of the oldest water rights on Flatwillow Creek in Petroleum County — the oldest dating to 1882 — in a Water Court hearing that begins at 9 a.m. Monday in the Musselshell County Courthouse in Roundup.
“This is a pretty typical hearing,” said Ben Sudduth, who has been appointed Water Master for the hearing that could stretch through the week.
What’s not usual is one of the parties involved, Wilks Ranch Montana LTD. The ranching corporation is owned by billionaire brothers Dan and Farris Wilks of Texas who have purchased thousands of acres of land across the state to become Montana’s largest private landowners.
Other water experts have said the case also has the potential to be a landmark ruling since few cases involving an abandonment are ever heard.
Wilks Ranch, along with Petroleum County rancher Daniel Iverson, have challenged water rights claimed by Gene Klamert, owner of the Bullseye Ranch in Winnett and a part-time Billings resident. The objectors are challenging Klamert’s claim to five water rights on Flatwillow Creek, a tributary to the Musselshell River that flows east from the Big Snowy Mountains. Along its winding route the creek passes through the Wilkses' NBar Ranch.
Klamert has claimed rights to 34 cfs of water from the creek for irrigation on about 800 acres of land, according to state documents. Objections can be filed against claimed water rights when they are not being used or the amount of acreage irrigated has been expanded, Sudduth explained. In this case the objectors are saying Klamert’s water rights claims are inaccurate and that there may be abandonment issues, Sudduth said.
Wilks Ranch will present its case first, followed by Iverson and then Klamert’s defense.
So for what may be a week of testimony, Sudduth will oversee a hearing where all three participants will call expert witnesses and present testimony in support of their argument. Once the hearing adjourns it will be up to Sudduth to render an opinion. That could take a month or more.
Sudduth’s Water Master’s report will be given to the Water Judges who will issue an order, possibly early next year. The participants have the option to object to the report and can appeal the Water Judges’ ruling to the Montana Supreme Court.
“Certainly I think there will be a lot of facts and evidence to sift through,” Sudduth said.
Under Montana water law having a water right with an early priority date is beneficial since water is allocated on a “first in time is first in right” basis. The earlier the priority right the better the water right. Water rights in Montana also have value, increasing a property’s worth.
In 1973 Montana embarked on a massive water adjudication process for nearly all water rights. Claims for all existing rights were required to be filed with the Department of Natural Resources and Conservation by 1982. Those who missed the filing date received a reprieve in 1993 when the Legislature allowed them to file through 1996, but at a cost of $150.
The Klamert case has been working its way through the water court for a couple of years, Sudduth said.