Big Hole National Battlefield Administrative History

Chapter Six:
Natural and Cultural Resources Management: Water Rights

No other resource issue at Big Hole National Battlefield is so closely tied to the area's ranching community as that of water rights. Several old irrigation ditches cross the national battlefield, and a number of area ranchers assert water rights that could potentially effect national battlefield resources.

Historically the NPS, like other federal agencies, recognized state water law to pertain wherever waters traversed federal lands under its jurisdiction. Montana state water law is based on the Prior Appropriation Doctrine, which recognizes the priority of water rights, or the order in time in which they were originally acquired. Adapted to the region's semi-arid climate, the doctrine provides that in times of water shortage, appropriators who have prior or senior rights can use water from a given stream before appropriators with later or junior rights on that same stream. Under the doctrine, appropriators can claim a water right by putting water to beneficial use, such as for mining or irrigation purposes. In addition, Montana state water law provides for ditch rights that are distinct from water rights. In most cases, ditch rights are easements with the same legal status as any other easement, such as an easement for an access road. [81]

Within the boundaries of the national battlefield, Ruby Creek and Trail Creek converge to form the swampy headwaters of the North Fork of the Big Hole River. Subsequent to 1877, and mostly prior to the establishment of the national monument in 1910, upstream waters that flow through the national battlefield were appropriated for use in mining and ranching operations. In addition, appropriators built a number of ditches through the area now contained within the boundaries of Big Hole National Battlefield, thereby establishing ditch rights. Not all of these appropriative water rights and ditch rights are in use and some may no longer be valid. As a whole, however, these water rights and ditch rights have presented three distinct but related issues for park administration. First, the National Park Service has sought to ensure the unit's own water supply. Second, it has taken steps to protect the battlefield setting from intrusive physical developments associated with ditch rights – particularly the reconstruction of a trestle across the bottomland that would flume the water diversion from one side of the river to the other. Third, it has striven to establish a federal reserved water right that will protect instream flow and the biotic resources that are dependent upon it.

The National Park Service first addressed the issue of water rights for administrative use in 1944. On the initiative of Acting Director Hillory A. Tolson, NPS officials inquired with the Forest Service as to whether it had filed a water claim by the United States for Big Hole National Battlefield Monument. [82] Although the Forest Service had appropriated water for domestic use by the ranger station and campers, it appeared that the appropriative right had never been perfected. The Forest Service had no water claim in its records and probably none had ever been filed. [83] In further reply to this inquiry, the Forest Service disclaimed any interest in the existing water supply system associated with the ranger residence and campground, these facilities having been transferred to the NPS by the 1939 boundary extension. [84]

Four years later – the reason for the delay is unclear – the NPS filed a Notice of Appropriation of Water Right with the state of Montana and Beaverhead County. The water right notice was prepared by the service's Water Resources Branch based on information provided by Yellowstone's assistant park engineer. The NPS filed a claim for domestic, recreational, irrigation, and other purposes for Big Hole Battlefield National Monument based on a prior appropriation date of December 31, 1909. The water claim amounted to a modest 0.025 cubic feet per second, or the total flow of a "nameless spring" located within the monument. [85]

In 1962, following the introduction in Congress of House Resolution 11781 to enlarge the national monument, the NPS reviewed its water claim and considered the need for an additional water source to supply a prospective visitor center on the top of the bench on the opposite side of the river. As a result, the Midwest Regional Office programmed $700 for a field study of potential well development and an additional $600 for test-drilling and test-pumping of the water supply. It requested the U.S. Geological Survey to conduct the two-phased project. [86] The well was completed in 1966. A second water right filing for the national battlefield was made soon afterwards. [87]

In 1973, the Montana legislature passed the Water Use Act, establishing new administrative procedures for adjudicating water rights. The state law affirmed the Prior Appropriation Doctrine by recognizing and confirming all "existing rights," or water rights with priority dates before July 1, 1973. [88] Passage of the Water Use Act, together with a drought in 1973, sparked new interest in water rights on the North Fork of the Big Hole River. That fall, Superintendent Al Schulmeyer reviewed the general situation and filed a lengthy memorandum to the assistant superintendent at Yellowstone. [89]

Schulmeyer noted that water rights on the main rivers in the Big Hole Valley had been contested and determined. In general, these water rights were the most senior in the valley. Water rights on the tributaries were another matter, however, as "priorities along the rivers apparently never covered waters of the tributaries which never reached the main river." Schulmeyer believed that later homesteads along the tributaries had traditionally taken what they needed regardless of downstream water rights. In recent times, as larger ranches in the valley acquired some of these homesteads, it formed the potential for litigation between "tributary waters vs. river priority rights." [90]

Trail Creek and Ruby Creek, converging within the boundaries of the national battlefield to form the North Fork of the Big Hole River, were two such tributaries. The headwaters of both creeks, Schulmeyer explained, were in the national forest. Trail Creek flowed eastward through Willow Ranch before entering the national battlefield. Ruby Creek began southwest of the battlefield and flowed northeastward through Ruby Ranch, then under the highway and through a corner of Willow Ranch before entering the national battlefield. There were privately held water rights on both creeks. There were also claims to three or four irrigation ditches running through the national battlefield. [91]

Encumbrances on Trail Creek, Schulmeyer continued, began with the formation of an irrigation company "about 1912." (Subsequent research would disclose an earlier claim by a Ruby Water Company, whose notice of appropriation of a claim to 250 cubic feet per second was filed in February 1901. Further, the company filed an application for ditch right-of-way in 1904. [92]) The so-called Ruby Ditch began at a point of diversion upstream from the battlefield site, ran along the bench on the north side of Trail Creek to the point where it joins with Ruby Creek. From that point, the company had built a flume and trestle across the bottomland to the Ruby Bench on the south side. The Ruby Water Company had failed early in the twentieth century, its ditch had fallen into disuse, and the trestle had eventually collapsed. Although the Ruby Ditch had not been used for decades, the owners did occasional maintenance work to maintain the right. In 1973, Schulmeyer thought the ditch was owned by Mark Clemow whose ranch bordered the national battlefield on the east. [93]

Water diversions along Ruby Creek also dated to the early twentieth century. Ruby Ranch itself was "laced with irrigation ditches," Schulmeyer wrote. Near the point that Ruby Creek enters the national battlefield, Schulmeyer reported the existence of "an unused dam which can divert the entire water of Ruby Creek into Ditch #1," or Ruby Ditch. According to Schulmeyer's information:

One of the ditches on Ruby Ranch takes off Ruby Creek water and crosses the highway and enters the Battlefield where yet another dam is capable of dividing the waters between Irrigation Ditches #2 and #3. The Rights to Ditch #3 are 100% owned by Mark Clemow and has not been used for decades. On the other hand, Ditch #2 is very active and is owned on shares. Mark Clemow owns 1/3 which he does not use. The other 2/3's are owned by the Fred Else Ranch. As ditch #2 passes from the Battlefield it enters Clemow's Ritschel Ranch and then finally on to the Fred Else Ranch. [94]

Schulmeyer recommended that the NPS negotiate with the ditch owners. If it could not obtain the ditch rights, the NPS should prove its claim to any waters not reserved and forestall any other claims to additional waters within the national battlefield. [95]

Spurred, perhaps, by the new Montana water law, one local rancher after another began to assert interests in the Ruby Ditch. "If everyone who had told me that they had a share of the claim were valid, there would be an army," Schulmeyer remarked. [96] By 1978, these ranchers were proposing to rebuild the flume and trestle and reactivate the ditch – actions that would have a profound visual effect on the battlefield scene and an impact on the amount of water flowing in the creek bed respectively. Organized first as the Ruby Ditch Company, later as the Big Hole Irrigation District, and still later as the Trail Creek Water Association, the ranchers asserted claims to the water right and ditch right based on a U.S. Forest Service special use permit issued in 1911 to the Trail Creek Water Company. The ranchers claimed to be heirs of the Trail Creek Water Company. [97] The proposal remained inchoate until September 1982, when the Trail Creek Water Association submitted a written plan to the NPS. [98]

The NPS had two options for deflecting this threat to the national battlefield. It could block the development altogether by invalidating the ranchers' claim on the grounds that the right-of-way was abandoned. Or it could mitigate the effects of the development by having the flume and trestle relocated upstream, west of the national battlefield. Litigate or negotiate. Schulmeyer tried both tacks at once.

Schulmeyer was unsuccessful in his effort to obtain a legal opinion that the ditch right-of-way was abandoned. First the NPS sought an opinion from the field solicitor in the Department of the Interior's office in Billings, but the interior solicitor insisted it was a question for the Department of Agriculture since the ditch right-of-way originated under a Forest Service permit. Next the NPS requested a determination by the Forest Service's Office of General Counsel. The result was disappointing. Attorney Lawrence M. Jakub found that the right-of-way should be treated "as a valid existing easement." Moreover, he did not think a rerouting of the easement could be required as a condition for reconstructing the flume and trestle. Short of condemning the easement, he wrote, the government had "no legal means to prevent appropriate use of the easement for irrigation purposes." [99]

This legal finding left the NPS with little choice but to negotiate with the ranchers on the location of the easement. (There is no indication in the written record that NPS officials were interested in pursuing condemnation of the easement. Schulmeyer recalls that the possibility of condemnation was never broached, but he also insists that that had nothing to do with the ill-feelings brought about by the earlier condemnation of Clemow property. [100] In Clemow's deed to the National Park Foundation of April 18, 1972, the conveyance was made subject to "the use and maintenance of an irrigation ditch." [101]) In May 1983, the NPS received notice from David C. Moon, attorney for the ranchers now organized under the name Trail Creek Water Association, that his clients intended to reactivate the ditch. The Rocky Mountain regional director replied to Moon:

The National Park Service is greatly concerned about the proposed development associated with your reactivation project and we request that Trail Creek Water Company personnel coordinate very closely with the Park Service Superintendent, Mr. Alfred Schulmeyer, to mitigate the adverse impacts on the Big Hole National Battlefield. [102]

He requested that the ranchers furnish Superintendent Schulmeyer with plans and maps of the proposed development for his review "pending final approval" of the project.

Based on the Trail Creek Water Association's plans, NPS officials in the Lands Division, Rocky Mountain Regional Office, proposed an alternative route for the Trail Creek crossing approximately 1/4 mile west of the national battlefield boundary. The new easement would cross wetlands on both the Beaverhead National Forest and the Big Hole National Battlefield; consequently, the Forest Service and the National Park Service cooperated in the preparation of a joint environmental assessment, completed in June 1984. [103]

Three alternatives were considered. Alternative A, "No Action," assumed that the proposed action did not take place. Alternative B, "Use of the Existing Right-of-Way," involved burial of a siphon within the right-of-way as routed in the original easement. The existing right-of-way paralleled Trail Creek Ditch downstream for about 1/4 mile from the point of diversion on Trail Creek, then turned southeastward to cross Trail Creek within Big Hole National Battlefield. It also crossed a corner of land owned by the Dick Hirschey Cattle Company. Most of the easement lay within the national battlefield. Finally, Alternative C, "Use of a New Right-of-Way," involved burial of a siphon within a new right-of-way located west of the national battlefield boundary, and an extension of the Ruby Ditch 728 feet westward to an intersection with the siphon. Most of the new easement would span the Dick Hirschey Cattle Company property. [104]

Before the environmental assessment was released, Schulmeyer alerted the Nez Perce Tribe to this threat to the national battlefield. The Nez Perce Tribe registered its opposition to the development in a strongly-worded resolution in January 1984. The Nez Perce Tribal Executive Committee urged the NPS to disapprove the plan. Noting that the inverted siphon would "deface" the site, the Tribe defined the proposed action as "an act of disgrace and dishonor to the significance of the memorial site." [105]

Local landowner Wayne D. Petrik also objected to the proposal. Petrik owned 40 acres in the southwest corner of Section 23, about one mile west of the national battlefield. The Trail Creek Ditch ran through his property. According to Petrik's own research, the members of the Trail Creek Water Association were not heirs to the Trail Creek Water Company's ditch. Petrik provided his documentation to the NPS. Petrik's argument focused on the transfer of lands to Beaverhead County for tax delinquency in the 1920s and their repurchase by the Bankers Loan and Mortgage Company of Billings a few years later. Petrik believed that name confusion between the Trail Creek Water Association and the Trail Creek Water Company had led officials to dismiss the issue of abandonment too quickly. [106]

In 1985 and 1986, the ranchers advanced two more proposals. The Soil Conservation Service office in Dillon assisted with the plans and cost estimates. The plans involved new rights-of-way and in the first instance a new water filing claim for 70 cubic feet per second, reduced from 176 cubic feet per second. The Forest Service raised concerns about potential impacts to the Nez Perce Trail and Lewis and Clark Trail west of the national battlefield. [107] The Nez Perce Tribe renewed its objections to the development. Gwendolyn B. Carter, Water Resources Coordinator for the Tribe, noted that the plan did not include costs for monitoring by an archeologist. In burying the siphon, "the potential for uncovering graves is great since Nez Perce who lost their lives during the Battle were buried where they had fallen." [108]

As the ranchers' legal costs and projected construction costs mounted, their interest in the project waned. Schulmeyer believed that the ranchers eventually turned away in frustration. "Let's say I tied them up with bureaucracy and they gave up," the former superintendent recalls. [109]

In 1988, two members of the Land Resources Division, Rocky Mountain Regional Office, Lloyd Garrison and Richard Young, reviewed the history and current status of the proposal to reactivate the Trail Creek Ditch. At that time the Trail Creek Ditch Association was exploring an alternative that would route the ditch around the national battlefield, but little had been heard about the plan since 1986 "very likely due to the depressed state of agriculture in general." The NPS expected the issue to resurface. When it did, the NPS would have three options: to allow the ditch to be reactivated and a siphon installed on the original right-of-way through the National battlefield; to resist all attempts to reactivate the ditch; or to work with the ranchers in an effort to have the siphon relocated outside the national battlefield boundaries. It was Garrison and Young's assessment that the first option would provoke "a highly critical reaction" and a lawsuit by the Nez Perce Tribe, while the second option would require condemnation and perhaps a sizable outlay of funds. Consequently the NPS stood ready to negotiate further should the ranchers desire to proceed. [110]

No sooner did the reactivation proposal for the Trail Creek Ditch recede than another threat arose, this time involving a ditch on the north side of the river where the national battlefield abuts the Clemow property. On October 12, 1986, Superintendent Schulmeyer filed the following incident report:

In the morning of October 7, the park neighbor, Mark Clemow, had a very large earth moving backhoe (bucket about 3' wide) come to his ranch, traveling along the fence to the northeast part of the park along the valley floor. It did cross the North Fork of the Big Hole River. The contractor makes a living maintaining irrigation ditches. The machine dug an irrigation ditch along the toe of Battle Mountain for a distance of 1,940 feet, to connect with sloughs and pools of a meandering river and thus make a new water diversion from the main river, the North Fork of the Big Hole, which passes through the park. [111]

After conferring in person with Clemow and by telephone with his superiors in the Rocky Mountain Regional Office, Schulmeyer averred that the NPS regarded Clemow's action as a trespass and would seek restitution for damages.

One week later there was a second alleged trespass, again by contractors working for Clemow. The workers extended their excavations in an easterly direction to Clemow's property. [112] Two days later Field Solicitor Richard K. Aldrich advised Schulmeyer that he was referring the matter to the U.S. attorney to institute legal proceedings against Clemow and seek a restraining order. [113] A few days after that, Monte Clemow and his son, Mark Clemow, visited headquarters and produced some documents that purported to show an existing ditch where his men were excavating. Mark Clemow announced that he had filed for water rights on the project. [114] Afterwards Schulmeyer reluctantly admitted that there may indeed have been a ditch in that place unbeknownst to the NPS. If so, Clemow had the right to clean the ditch. When it came to ditch maintenance, however, "cleaning it up," Schulmeyer had had occasion to observe, really meant making the ditch "a little wider and a little deeper." [115]

After review of property records, aerial photos, and the physical ground, the Montana Department of Natural Resources (MDNR) stated that "there has been a ditch there for quite some time." Based on photographic evidence and the size of the brush growing in the ditch, the MDNR estimated that the ditch was more than 35 years old. [116]

Again the NPS sought a compromise solution. The NPS would pay to have the ditch lined. In return, it would have better control over maintenance activity. Not only would the arrangement prevent Clemow from getting in there with a backhoe again, the ditch lining would tend to protect the national battlefield from losing additional water out of the North Fork to water migration through the intervening swampy ground. [117] Clemow and the superintendent signed a letter of understanding on October 6, 1988, stipulating that Clemow would notify the NPS one year in advance of any ditch maintenance within the national battlefield. [118]

By the 1990s, issues involving ditch rights and water rights were receding from view. The Trail Creek Ditch was inactive; the Clemow ditch was lined. As long as these private interests remained intact within the national battlefield the potential for adverse development remained, but nothing appeared imminent.

On a separate track, meanwhile, NPS officials worked with the Montana Reserved Water Rights Compact Commission to define the federal reserved water right at Big Hole National Battlefield. These negotiations were part of a larger process to define the federal reserved water rights for all national park lands in Montana. The intent was to establish what each NPS unit required so that the unit's natural resources would be protected and so that state and private interests would be able to claim or develop anything left over. An initial effort to reach a compact in the 1980s broke down – primarily over issues at Glacier National Park and Big Horn Canyon National Recreation Area where water courses extended onto Indian reservations – but in 1991 the Montana Reserved Water Rights Compact Commission invited the NPS to renew negotiations. In January 1993, the NPS signed the first of two compacts, which defined the federal reserved water rights for Glacier and Yellowstone national parks, and Big Hole. In May 1994, the NPS signed the second compact involving Little Big Horn National Battlefield and Big Horn Canyon National Recreation Area. [119]

Once approved, the compact would establish a federal reserved right for Big Hole National Battlefield involving minimum flow of 10 cubic feet per second in winter and a limitation on the amount of water that could be taken upstream in other seasons. After the Montana State Legislature ratified the two compacts they were submitted to the state water court as preliminary decrees awaiting objections.