Battle Over Property Rights And Water Continues
Confederate Gulch is famous for discovery of gold in Montana and has since evolved into a battlefield over property rights and water.
Ranching in the area takes a heavy position on property rights and the beneficial use of water where conflicts in historical use often collide. Since the turn of the century prospectors and ranchers agreed on one thing; “Whiskey is for Drinking and Water is for Fighting” ~ Mark Twain
In 1975 Montana adopted what is known as the “The Natural Streambed and Land Preservation Act of 1975”. The legislature, passed the law due to their constitutional obligations under Article II Section 3 and Article IX of the Constitution of Montana.
The purpose of the 1975 law was to protect environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources. 75-7-102MCA.
The beneficial use of water is defined as; “to include: agricultural, stock water, domestic, fish and wildlife, industrial, irrigation, mining, municipal, power, and recreational uses.” As a result of the 1973 Montana Constitutional Convention, the Montana Legislature codified “Beneficial Use” in 85-2-102MCA.
Tracy Fortner, an active miner, owns property in Confederate Gulch. He has been challenged by the government claiming he must apply for a permit under the 310 law. The administrative claims by the Broadwater County Conservation District (BCCD) have interfered with Mr. Fortner exercising his rights on his property since 2002.
In April 2019, an administrative hearing was held to determine their jurisdictional authority. BCCD completed review of the case on June 25, 2019 and issued a declaratory ruling against Mr. Fortner. They are claiming Montana Gulch is a perennial stream in need of protection.
According to Mr. Fortner the evidence presented was rejected by BCCD and contends that there is no perennial stream in Montana Gulch or on any of his property. Mr. Fortner under advisement of his attorney will appeal the decision.
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