MONTANA RANCHING FAMILY WINS ACCESS RIGHTS

December 12, 2003 - For Immediate Release
Contact: William Perry Pendley

DENVER, CO. A Montana ranching family denied access to its private property by the U.S. Forest Service today won complete vindication of its water rights when a Montana federal district court quieted title to the property in its favor. Stephen and Jean Roth of Ravalli County, Montana, prevailed in their arguments that, because of two acts of Congress, they own property rights in the Tamarack Lake Dam and Reservoir and related ditches and the Forest Service may not deny them access to or use of those properties and the water they provide to their ranch. The ruling came after the Roths filed a lawsuit on March 11, 2002, and after discovery and the filing of briefs. Oral arguments occurred December 10, 2003.

“This is a great victory for the Roths and for ranchers across the West victimized by the refusal of the Forest Service to obey the law,” said William Perry Pendley of Mountain States Legal Foundation, which represents the Roths. “Land records, including documents generated by the Forest Service, confirm that the Roths have valid existing rights that may not be denied. Yet the Forest Service demanded that they sign away their rights.”

The Tamarack Lake Dam, which lies within the Bitterroot National Forest and the Selway-Bitterroot Wilderness Area in west central Montana along the Idaho border, was constructed in the late 1800’s. The water impounded by the Dam was applied to beneficial use by Roth’s predecessor and has been applied to beneficial use ever since. Although the Bitterroot National Forest was created in 1897, an 1866 Act of Congress protected any water-related facilities constructed prior to that date. In addition, in 1891, Congress adopted the Irrigation or General Right of Way Act, which provides for rights-of-way through public or reserved lands for the purpose of building irrigation and reservoir systems. The federal Wilderness Act of 1964 contains a provision that protects “valid existing rights,” like those held by the Roths.

For years, the Roths held a Forest Service special use permit, which gave them access to their irrigation facilities. Recently, the Forest Service refused to renew the permit. Instead, the Forest Service gave the Roths an ultimatum demanding that they relinquish their rights under federal law.

The district court held that “a right of way for the Tamarack Lake [D]am and [R]eservoir vested upon [its] construction” and that the Roths "established that construction of the[ir] ditches occurred before 1897, and that their predecessors possessed valid water rights under Montana law by that date as well... [Thus the Roths] possess an 1866 Act easement for those ditches. The [Roths] are accordingly entitled to a judgment quieting title to rights of way under the Act of 1866 for [their four] Ditches."

Mountain States Legal Foundation is a nonprofit, public interest legal center dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in the Denver, Colorado, metropolitan area.