Parties discuss stock water permits on federal grazing allotments

Buffalo – At the Oct. 4-5 meeting of the Joint Agriculture, State and Public Lands and Water Resources Interim Committee, Wyoming Stock Growers Association (WSGA) extern Justin Hesser of the UW law school presented a paper he prepared on the issue of stock water rights on federal land.
As Hesser introduced his topic, he said consistency would be one goal in how stock water rights on federal land are treated by Wyoming. “The BLM and Forest Service treat them a little differently sometimes. While the BLM allows joint stock water permits, the Forest Service does not,” he said.
Hesser pointed out that beneficial use is the basis of a water right in Wyoming. “The legislature should rely on that concept when you look at this decision,” he said.
Outlining the history of public land water rights, Hesser said in the early ‘90s, with rangeland reform came a policy that said, to the extent state law allows, a federal lands stock water rights should be in the name of the United States. In 2006 the Department of the Interior amended the policy, removing that sentence, but was challenged and the BLM issued a memorandum going back to the pre-2006 regulations.
WSGA Executive Vice President Jim Magagna said that prior to rangeland reform in 1995, typically, and often, the rights were permitted in the name of the permittee.
“The rangeland reform offered by Bruce Babbit changed that to say that, to the extent permitted, the U.S. government would hold the right, and he didn’t say they’d be the only one,” Magagna told the committee. “There’s a history of doing it in a manner that allows the permittee to hold the stock water permit.”
Two states have directly addressed the issue – Nevada and Utah. “Utah started out in 2008 saying a stock water permit can only be held in the name of the grazing permittee. They changed that in 2009 to two options – by the grazing permittee, or jointly with a grazing permittee and the federal agency,” said Hesser. “Utah takes the approach that a stock water permit attaches to the federal grazing allotment.”
Nevada has two statutes addressing what the water right attaches to. “Nevada allows a stock water right on federal lands to attach to other lands in the state, for example the home ranch,” said Hesser. “The other statute addresses in whose name the stock water right can be. Nevada says you have to have proprietary or legal interest in the livestock to have your name on the stock water right.”
“On the concept of beneficial use, the grazing permittee is the one beneficially using the water,” said Hesser, referring to Wyoming’s laws. “The federal government doesn’t have any cattle or livestock, and they’re not beneficially using that water. When you rely on that, it eliminates them being able to hold a permit in their name.”
“That leaves two options – in the name of the grazing permittee, or jointly with the permittee and federal land agency,” he concluded. “Based on the concept of beneficial use, the federal agency itself cannot hold the stock water right.”
However, Wyoming State Engineer Pat Tyrrell said, in his point of view, water rights attach to the land. “When we give a permit and have it adjudicated, it’s in the name of the landowner, regardless of stock water, irrigation or industrial use,” he said. “The only name that really matters is the landowner’s, so, if you want to stick with water rights attaching to the land, you’ll adjudicate in the name of the federal government on BLM and Forest lands.”
Tyrrell said that does give them the right to perhaps abandon that right, and that the fear is that could happen under a grazing allotment. “If that does happen, they could come right back in with an additional permit,” he said.
He added, “There’s a concern that if the permittees don’t show up on a certificate that reduces their right somehow. I don’t see that, because they’re not the landowners. They’re a landowner, just like any number of people, and that’s the consistency I want.”
Tyrrell said his office treats State lands the same way. “That’s the beauty of the system – there’s a consistency and fairness under the law. I understand the frustration that some have in dealing with Washington, but I like the fact they’re under our law,” he noted, referring to the provision “to the extent state law allows.”
“We issue permits that attach to the land,” continued Tyrrell. “Anybody can apply for and obtain a permit for a well or a reservoir on the neighbor’s land. What we don’t give them is means and access to go build it. It’s not unusual to see a permit application by Party A, where the point of diversion is on Party B. Party A has to go get access, but when it comes to adjudication – this is the consistency – adjudication occurs in the name of the owner of the land where the use is made.”
He added that where points of use are on both private and public land, both names can be on the certificate, because having the property puts the private landowner’s name on the certificate. “We have the ability to graze through a grazing permit, and the ability to use the water, but adjudicating always falls back to adjudicating in the name of the landowner,” he said.
“From our industry’s perspective, the concept of the Forest Service holding a water right for livestock grazing when they’re not in the livestock business is a concern, and think that weakens our position as a grazing permittee on federal lands,” said Magagna.
Two pieces of legislation were presented to the Joint Ag Committee, one saying that only grazing permittees holding valid permits can have a stock water permit issued in their name. The second issues permits either in permittees’ names alone or jointly with federal lands agencies.
“The more strict one follows Nevada, and the either/both follows Utah,” Magagna explained. “And it’s probably more conducive to a good working relationship between the State Engineer’s Office, permittees and agencies.”
Christy Martinez is managing editor of the Wyoming Livestock Roundup and can be reached at christy@wylr.net.