Daily Montanan Commentary: The Summer of Dead Trout has Begun

The Prior Appropriation Doctrine that defines Western water law falls short of any equitable management for trout in our new age of global baking.

July 22, 2024 By George Ochenski, Daily Montanan

This article was re-published under Creative Commons license CC BY-NC-ND 4.0. See the original article here.

Well, here we are fellow Montanans. Barely past mid-July in a non-ending series of high 90s and low 100s temperatures, no significant rainfall and no end in sight. Most of our major world famous trout streams are already under “hoot owl” restrictions—or shut down completely to fishing. And sad to say, Montana's tragic and likely to be historic summer of dead trout has already begun.

The picture that accompanies this column (as it appears on dailymontanan.com) came from an old friend who has lived most of his life on a tributary of the Bitterroot River. As he wrote: “This is Rye ‘Creek' under my bridge. Rye Creek used to have more fish per stream volume than any other creek in the valley. This happens regularly on many ‘chronically dewatered' creeks in the Bitterroot. Hoot owl fishing regs do not help with this.”

He added it's “the result of growing hay during hot weather and drought. Next come the herons looking for easy pickings.”

He's right, of course.

The Prior Appropriation Doctrine that defines Western water law falls woefully short of any sensible or equitable management regime for ever more scarce water resources in our new age of global baking.

For those unfamiliar with how the Prior Appropriation Doctrine works—or doesn't—it basically derives from “settling” the West when the government allowed individuals to claim as much water as they said could be put to “beneficial” use. So if great-great grampa 150 years ago wanted to use all the water in, say, Rye Creek, and put in a claim, he received “water rights” to divert and consume that much water.

Moreover, the system is based on “first in time, first in right.” So those who came afterwards could file claims—and so many did that Montana has over-appropriated all our rivers and streams—but they'll have “junior” rights. When water is scarce the senior water rights holders get theirs first and can legally shut off junior rights holders.

Like so many things from the past that really don't function well in the present, there were good reasons why the Prior Appropriation Doctrine was instituted. Namely, people were killing each other with shovels on ditches fighting over water diversions. The violent history of miners, farmers and ranchers doing so spawned the saying “whiskey is for drinking, water is for fighting.”

But of course trout can't drink whiskey nor fight for water. They are at the mercy of the Prior Appropriation Doctrine's water rights holders—and that mercy is not strained. When you combine extreme heat, very low humidity, and high winds, it takes a lot of water to grow an acre of alfalfa. The standard use is 2-3 feet of water per acre, but our hotter, drier climate combined with lower snowpack puts a double whammy on the streams and rivers—and the trout pay the price.

Yet, while facing an almost unimaginable environmental tragedy, state government stands mutely by, shutting down fishing, which doesn't put a drop more water in the river or streams. Meanwhile, the scientists and biologists are very busy taking water temperatures, flying helicopters over dead and dying rivers to develop “thermal profiles” that will show the less water the hotter it gets and the more fish die.

The picture of the dead trout in my friend's little stream will be replicated broadly and tragically in the months ahead. And when the tributary streams go dry, the rivers follow suit…it's as predictable as it is inescapable.

Yet, when all is said and done, nothing will change until the Public Trust Doctrine is finally acknowledged and enforced. In the meantime, the fisheries and wildlife that rely on functioning aquatic ecosystems will pay a horrific and ultimate price, drying and dying in hot, dewatered streams—and they can't even fight for their water.

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