Prior Appropriation and Instream Flow: Tracing the Legal Legacy of Montana’s Yellowstone River Water Reservations

Authors: Nicolas Bergmann*, Montana State University
Topics: Legal Geography
Keywords: legal geography, environmental flows, Yellowstone River
Session Type: Paper
Day: 4/3/2019
Start / End Time: 2:35 PM / 4:15 PM
Room: Roosevelt 4, Marriott, Exhibition Level
Presentation File: No File Uploaded

The engagement of legal geography with a more-than-human world has created fertile space for thinking through historical trajectories of instream flow law and policy. In particular, the emergence of various instream flow uses as “beneficial” within prior appropriation state water regimes during the 1970s and 1980s sparked a significant increase in the number and quality of legal mechanisms available to protect environmental flows in the western Untied States. While state legislatures designed most mechanisms for small-scale interventions, the Yellowstone River basin experienced a different process. As one of the few states with substantially under-allocated river basins remaining, Montana established a water reservation process during the 1970s. While the protection of non-human objects formed only one part of the mechanism, it empowered the Montana Department of Fish and Game—a state agency with radical environmental advocacy components—to seek legal protection for instream flows at a basin-wide scale. While the Yellowstone River Water Reservations remain a fairly unique episode in the history of western water management, its legacies both within Montana and across other states remain largely unexamined. This paper attempts to place the Yellowstone River reservation process in its proper context and to explore its influence on water management in Alaska—a state with massive reserves of unallocated fresh water. Ultimately, I argue that the selective transfer of scientific knowledge and publicity materials to the Alaska Department of Fish and Game from the Montana Department of Fish and Game significantly shaped the developmental trajectory of Alaska’s instream flow reservation system.

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