- [Breanna] On this edition of "Impact," the US Fish and Wildlife Service evaluates whether to lift endangered species protections for grizzly bears.

It's a change Montana Fish Wildlife and Parks supports.

- The time is here.

We've done everything we need to do.

- [Breanna] But others argue the species needs those protections for its continued recovery.

Plus, it's been more than 40 years since Montana started the tedious process defining water rights across the entire state.

- There will never be an end to conflict over water, but it will be a milestone that our state has never seen before.

- [Breanna] Now, as Montana enters the final years of that process, we'll explore what barriers remain to give water users the clarity and finality they've been waiting for.

That's coming up on "Impact."

- [Announcer] Production of "Impact" is made possible with support from the Otto Bremer Trust, investing in people, places, and opportunities in our region.

Online at ottobremer.org.

The Greater Montana Foundation, encouraging communication on issues, trends, and values of importance to Montanans.

And viewers like you who are friends of Montana PBS.

Thank you.

- Welcome to "Impact", our continuing series on issues important to Montanans.

I'm Breanna McCabe.

The US Fish and Wildlife Service will soon announce whether it will keep grizzly bears in the Greater Yellowstone and Northern Continental Divide ecosystems on the endangered species list as threatened species.

For years, it's been a hotly debated decision.

As Joe Lesar reports, some Montanans say delisting is long overdue, while others worry that state governments can't properly manage the bears.

(sheep bleats) - [Schmidt] Are you ready to go take the sheep out?

Let's go Finn.

- [Joe] Lisa Schmidt runs sheep and cattle on her ranch just outside of Conrad.

- [Schmidt] Yeah, you need a treat, don't you?

- [Joe] Schmidt calls this God's country.

These rolling hills between the Rocky Mountain front and the expanse of the prairies are also grizzly bear country.

But grizzlies were rarely seen here when Schmidt and her late husband bought this place back in 2006.

- You didn't think about bears.

Now, we live with them.

Like, we know that they're out there.

There's a sow that has been raising cubs at the west end of the ranch.

- [Joe] As grizzly populations in the mountains have grown, the bears have spread east and are now a fairly regular site.

Living somewhere wild enough to support them is something that Schmidt values.

- Living in a place that has grizzly bears and wolves and all these predators, they're all pretty cool.

And we live in a place that has all that, and most people don't.

Go slow, Finn.

- [Joe] However, her relationship with the bears got off to a rocky start.

- I woke up one morning and went down to the barn, and there were dead sheep everywhere.

So that was the first time that I experienced a grizzly bear.

- [Joe] That incident began an adjustment period that played out over a number of years.

- At first, you're scared to death, and then you get mad because you can't do anything about it.

I got really mad when a grizzly bear was in our yard, and all of a sudden my daughter doesn't wanna go outside anymore, and you can't blame her.

You know, the kid was six or seven or eight, and here's this massive beast.

- [Joe] Schmidt now feels acceptance, and even admiration towards grizzlies as they reclaim their original habitat.

- But the caveat is, I need the tools to protect my livestock.

- [Joe] Soon the US Fish and Wildlife Service will decide how easy it will be for ranchers like Schmidt to use lethal tools.

Right now, states need federal approval to move or remove problem bears, but both Montana and Wyoming have petitioned to remove some grizzly bears from the federal list of threatened species and return management of the bears back to states and tribes.

In February, the Fish and Wildlife Service will finish year long status reviews of the Northern Continental Divide and Greater Yellowstone grizzly bear populations, and decide if more than 90% of all grizzlies in the lower 48 will be delisted.

They've been delisted and then re-listed twice before following legal challenges.

Montana is arguing that now is the time.

- Everything that Montana has done, everything that Montana's doing, the resources that are being applied, you know, you can't say we're not doing a good job managing grizzly bears.

- [Joe] Decades of work between states, tribes and federal agencies has led to one of the keystone accomplishments of the Endangered Species Act.

The lower 48 was home to an estimated 50,000 grizzly bears before westward expansion by American and European settlers.

By the time they became protected in 1975, 600 to 700 bears remained, and unchecked killing and habitat loss shrunk their historic range by 98%.

Since then, their numbers have roughly tripled, and the two populations that are up for delisting have both surpassed federal recovery numbers.

Their range has steadily expanded as well.

And last year, a bear was documented in the Upper Missouri River Breaks for the first time in a century and in the prior mountains directly south of Billings for the first time since the 1890s.

These sightings don't mean that there are breeding populations in these areas, but bear biologists Frank Van Manen says they indicate robust populations in the heart of grizzly country.

- In the core of the habitat, densities are high because all the good habitats are now occupied.

The fact that we're seeing these density dependent effects in the population, you only see those in populations that are close to reaching the carrying capacity of the ecosystem.

- [Joe] Van Manen says there's good genetic health in the Greater Yellowstone population despite it being long isolated from populations up north.

- [Van Manen] Genetic diversity is not declining, and the population is large enough where we don't anticipate that to decline in the coming decades.

The habitat security that led to robust growth during the 1990s are still in place and should be able to sustain this population into the long-term future.

From a biological perspective, yes, this is the Greater Yellowstone ecosystem is a recovered population.

And the recovery trajectories have been so similar, one could make the a similar argument about the Northern Continental Divide as well.

- [Joe] But delisting requires more than biological recovery.

According to Van Manen, 85% of grizzly bear deaths are caused by human activity.

So Montana has to prove that adequate safeguards are in place to ensure that after delisting, the number of those deaths will continue to be monitored and minimized.

- We have people and resources in place to continue to address grizzly bear conflicts, ideally to prevent those conflicts.

- [Joe] Under federal management, there are limits on human caused deaths.

Montana says those limits will remain if delisting takes place.

- [Ken] There's a maximum number of bears that could die in a year based on the size of the population, and it doesn't really matter what the cause is.

And so we're committed to not exceeding those limits.

- [Joe] But some are arguing that laws from 2021 easing regulations on hunting wolves and black bears will inadvertently kill grizzlies too, making it impossible for the state to get a clear picture on how many grizzlies are dying and why.

- [Servheen] The management of grizzly bears is not something that we can trust to the state agencies with the politicians doing what they're doing.

- [Joe] Chris Servheen led the federal Grizzly Bear Recovery Program for 35 years.

He wrote the original 1982 Grizzly Bear Recovery Plan and also wrote the delisting plan the first time the Greater Yellowstone grizzlies were delisted in 2007.

- At that point, I was confident that the bears would be carefully managed upon delisting, but what's happened in the recent years is that we now have political influence on the management of animals like bears and wolves.

- [Joe] Servheen says his view on delisting did a 180 after the 2021 legislature allowed the use of neck snares, bait, and night vision scopes to hunt wolves.

Black bear hunting with dogs, which had been outlawed since 1921 was also legalized.

According to Servheen, these practices increase the chance that grizzly bears will be killed too.

- The idea that you can put these highly risky activities into grizzly bear habitat and manage the mortality of grizzly bears and know about all the dead bears that are gonna occur, that's not gonna happen.

A lot of these things will happen, and we will never know about it.

The bears may get caught by a neck snare and pull the snare away and die.

- [Joe] The US Fish and Wildlife Service also expressed concern over these hunting laws in a letter to FWP last year.

The letter detailed how another law allowing Montanans to kill grizzlies for simply threatening livestock conflicts with the Endangered Species Act and would need to be changed before delisting.

The law outraged environmentalists who said the term threatening was too vague.

The 2023 legislature heeded the Fish and Wildlife Services warning, passing a new law that says private landowners can kill a bear only when it is in the act of attacking livestock.

FWP officials, not private landowners, can determine if a bear's behavior constitutes as threatening, and then grant approval to kill that bear if they deem it is.

The law clarified that these rules would only take effect after delisting, and that bears killed in this way would count towards the outlined mortality limits.

- [Ken] If we start pushing up against those mortality limits, we would get more conservative.

- [Joe] Governor Greg Gianforte's press secretary called these new rules science-based and said "The governor has full confidence that current Montana law, in conjunction with the rules enforced by FWP, make the state well-prepared to manage this iconic American species."

Delisting would allow for grizzlies to be hunted.

Under Montana's proposed plan, hunting won't be considered until five years after delisting.

McDonald calls it a surgical tool that FWP could use to manage the population.

Servheen says that from a management perspective hunting is not necessary.

- [Servheen] I'm not opposed to hunting, but there's no biological need to hunt grizzly bears.

Grizzly bears can be managed very well without ever hunting them.

- [Joe] Montana says that the population monitoring, public education, and habitat protection that got grizzlies to where they are now will continue.

But with those carnivore hunting laws still in place, Servheen is skeptical of Montana's ability to manage.

- [Servheen] The bears are not ready to be delisted because of the inadequacy of regulatory mechanisms.

- [Joe] Regardless of how the US Fish and Wildlife Service decides, life goes on for Schmidt in grizzly bear country.

Securing attractants and electric fencing go a long way in preventing conflicts.

The three Great Pyrenees Akbash guard dogs she got several years ago add extra security.

- [Schmidt] So the dogs stay with the sheep all the time.

They look for coyotes, they look for bears, they're just alert.

- [Joe] Most bears Schmidt sees are skittish around people and often indifferent to livestock.

- [Schmidt] I've had bears walk through the cows when the cows are out grazing and they don't care.

It's no big deal.

- [Joe] But in the rare chance that an attack happens, and she's there to see it, Schmidt would welcome the option to take care of the situation herself.

For her, lethal action would be a last resort.

- The time that I would use a gun is if I didn't have any other options.

And so the options that run through my mind are hazing, you know, somehow, whether that's with a truck or a pot and pan or yelling at them.

If I can get them to leave, that's great, but if they're not gonna leave then that's when I shoot them.

- [Joe] Schmidt acknowledges the part ranchers played in the bloody history of grizzly bears and other carnivores in the US, but she believes the conflict between ranchers and carnivores is more complex than that generalization.

- And I don't want to be thrown into that group, that stereotype just because I raise livestock.

When you talk about bears, most people think that like to a rancher, it's all financial, it's all about the money, and that's not it.

When I walk out the door every day, I know that the animals that are out there depend on me, and they depend on me completely.

It's the moral responsibility that I have chosen to accept.

- [Joe] The pending federal decision could mark an important chapter in the complex history of this great species and play a role in the way people like Schmidt live and work around them.

For "Impact," I'm Joe Lesar.

- If the US Fish and Wildlife Service rules in favor of delisting, it would be a year until that would take effect.

Management of grizzly bears within Glacier and Yellowstone National Parks would not change if delisting occurs.

It's been more than four decades since Montana set down an ambitious path to define every water right held in the state.

Now, the end of this massive judicial undertaking is in sight.

As Stan Parker reports, entering the final chapter adds urgency to longstanding concerns about the accuracy and security of water rights records.

- [Stan] Elk Creek may not roar, but it's a vital source of water here on the King Ranch in Central Montana.

- My grandpa moved here full-time in the late '40s, early '50s, and my family's been here full-time ever since.

- [Stan] Even decades before Jay King's family arrived, water has been diverted from this point to flood irrigate the hay fields downstream.

- [Jay] Where we live, we get an average of about 12, 13 inches of moisture a year, so it's not a lot.

Dry years, we just don't put out very much hay.

Being able to irrigate out of the creek and out of Yellow Water dam is a huge benefit for us.

- [Stan] Inside his ranch house, Jay keeps a folder that many ag families of Montana may find familiar.

In it, papers outlining his family's rights to use the water that passes through their place.

- [Jay] Well, here we go, current capacity of 4,400 acre feet.

- [Stan] The King family's rights are among the 219,000 individual claims that Montanans submitted to the state more than 40 years ago.

When Montana's new constitution took effect on July 1st, 1973, it mandated all existing water rights be recognized and confirmed and called for a new central record system going forward.

- The state constitution mandates that there is a centralized record system for the management of water in the state of Montana.

- [Stan] The job of administering all these records belongs to the Department of Natural Resources and Conservation.

Trevor Watson is the DNRC's deputy administrator for water resources.

- So we manage a water rights information system that has an electronic database, paper records, scanned records, and that is our process for helping the administration of water.

- [Stan] And the last word on defining and confirming those water rights was given to the newly formed Montana Water Court in 1979.

Decades later, the court is still completing this effort across Montana's defined 86 basins.

This map shows how each basin sits at various stages of completion in the complicated process.

- Montana's adjudication is the biggest in the United States.

It may be the single biggest piece of combined litigation in this country.

I don't know.

There is no western state that has a more ambitious program for determination of its water rights than Montana.

- [Stan] Judge Russ Mcelyea is Montana's chief water judge.

His goal since taking this job a little over a decade ago has been to bring this long drawn out process to a close, which means issuing what are known as final decrees for each of those 86 basins.

- There was many, many roadblocks that we had to overcome in order to begin issuing final decrees.

We've now issued four on my tenure, and we've got quite a few more now in the queue.

- [Stan] There are still years to go, but the coming of these final decrees means the end is in sight, and it means the pressure is on for fixing longstanding concerns about managing errors in the records.

Judge Mcelyea says the transition from old paper records to digital ones has led to some of those issues.

- And then the department itself has historically engaged in practices which sometimes have resulted in modification to public records without the knowledge of the court and without the knowledge of the property owner.

- [Stan] Lawmakers on the Water Policy Interim Committee, or WPIC, recently heard from the water court and the DNRC about their joint efforts to tackle these problems.

Watson told lawmakers about the agency's plans to improve the data systems and include water users in the process.

Representative Jill Cohenour pressed him on what's being done about errors.

- I know that we have talked at least over the last six years in WPIC about how errors were going to be addressed in this system.

Can you talk about like what kind of a process is in place for addressing those types of things and like how would a water right holder engage with DNRC on fixing an error in the system?

- So we are, A, starting a outreach strategy to not only have more touch points with water right users, but also to gather that information that would help us.

Two, would be we are moving toward getting data quality strategies put in place for the water rights information system for all entries.

I believe we have a timeline on that of April 24, and then implementation by the end of the year.

- [Stan] Krista Lee Evans spoke up for water rights holders at the meeting.

She's a consultant and a lobbyist that helps people navigate water rights issues.

- Errors are a significant issue for us.

Changes are made to our property rights without our knowledge or approval, and then it's our burden and cost to fix those.

- That's something that I want to take full ownership of because I think that's a problem.

It needs to be easier.

And, you know, she highlighted some situations where they were very clearly DNRC errors.

And so that's something that we have been actually working very closely with the water court on over the past couple months is to really identify where those errors are occurring and developing robust solutions to make sure that those errors don't continue.

- [Stan] Judge Mcelyea acknowledged the water court makes mistakes too.

- The way the system is presently constituted, that imposes a burden on the water user and sometimes a cost to fix a problem that wasn't of their making.

- [Stan] And sometimes even without errors, the adjudication process simply produces outcomes that are hard to swallow.

- We hear repeatedly from water users we went through hell getting our water rights properly defined as a consequence of this adjudication process.

And at the end of it, we learned that the water rights that we thought we had after all that time, money, and effort were not the ones that we thought we had.

And that's crushing for the people that have been through it.

And it's difficult for those of us at the court who take pride in trying to serve those people and give them clarity clear answers to the questions that they've put to us.

- [Stan] The Kings haven't gotten everything they've wanted from the water court, but for the most part, things have worked out for them generally like they're supposed to.

- We have one small deal where I tried to change one of our water rights and the water court didn't go in our favor unfortunately.

But as far as our main water rights, we haven't had any issues with the filing process or the process since the late '70s when it was restarted.

- [Stan] For water rights holders like the Kings, the most important part of the water right is the priority date, 1893 for their oldest rights.

That's when their forebears, the Bean brothers, first started diverting water from this point.

If Elk Creek had to be rationed, the Kings hay fields would theoretically take priority over newer users.

The system of first in time, first in right is a legacy of the early mining days.

- There were a lot of conflicts over usage of water in the gold fields.

And so a practical kind of rough justice way of allocating it was, well, whoever got here first has the prior right, and then the second person had the second right, and the third and fourth and so on.

Where the adjudication has a role or value is that when there is increasing conflict over water or any property interests, it's extremely valuable to have clear definitions of what that property interest is because that tends to suppress conflict and reduce the need for people to fight over stuff that should have been determined a long time ago.

- [Stan] That need for clarity, the highest purpose of this vast, expensive litigation, highlights the importance of correcting errors and also in ensuring that these final decrees find a proper home in the public record.

As Judge Mcelyea told lawmakers, "There's work to do."

- It's my opinion that we are falling short of the mark as matters presently stand.

- [Stan] He said lawmakers need to decide what a final decree really means.

- What significance does it have?

Is it sacred or is it malleable?

Can it be modified on a whim, or should it be carved in stone?

It's for you guys to decide.

- [Stan] And making final decrees clear in the public record.

- The problem is that as presently operated, the database does not reflect a single unified version of a final decreed water right when a final decree comes out.

So if you look at the basins in which we've issued final decrees, you will see scanned paper documents of the final decree.

So it is in the database.

That claim can be made accurately.

But you'll also see general abstracts that include information that's not on and wasn't in the final decree.

So already, even though some of the ink on these final decrees is just now drying, we've got multiple versions of the same water right in the database, which will lead to confusion.

It will lead to future unnecessary litigation, and it does not, in my opinion, achieve the objective of this long and expensive process, which is to provide clarity and finality to the water users.

- [Stan] Watson says the DNRC is actively working with the water court on harmonizing their systems.

Should anyone have questions about the records they see on the DNRC's website, he says agency staff is standing by to help.

- I think the best place to start is going to our regional offices, finding out what information may be of help to you.

Education is key on this.

We're doing what we can.

The department in the past has not always been great on outreach of education and water right information knowledge, and we're trying to improve that in a big way in 2024.

But in the meantime, if somebody has any questions, I really would encourage them to walk through an office door or give them a call.

- [Stan] And then there's the question of where we go from here.

- The time is certainly ripe for the legislature to begin contemplating what the future looks like.

Oftentimes, the best legislation is not the product of a crisis, but the product of careful planning in advance.

So Montana's sitting at this juncture where we all have the luxury of being able to think about the future, think about how we're gonna address conflicts in water, and prescribe solutions to some of those problems that are obviously coming.

And therein is the job of the legislature because they're the policy makers.

- [Stan] For "Impact," I'm Stan Parker.

- The Montana Department of Natural Resources and Conservation assembled a new team to reach out to water users and educate the public.

The agency also recently revamped its online tool that lets the public view water rights records, and it launched a new tool to quickly notify users of new water use permits in their area.

Those resources are online at dnrc.mt.gov.

Well, that's all for this edition of "Impact," but here's what we're working on for next time.

Missoula's bus system recently changed its policy to allow passengers to carry weapons after the Montana Shooting Sports Association threatened a lawsuit.

We'll take a closer look at the debate over who should regulate guns on public transit.

And Montana Fish Wildlife and Parks has drafted a new management plan for gray wolves, which includes an updated wolf livestock management program.

We go on the ground with ranchers who say they've already found tried and true methods to reduce wolf livestock conflict.

That's next time on "Impact."

Until then, for all of us at Montana PBS, I'm Breanna McCabe.

Thanks for watching.

(gentle music) (gentle music continues) (gentle music continues) - [Announcer] Production of Impact is made possible with support from the Otto Bremer Trust, investing in people, places, and opportunities in our region.

Online at ottobremer.org.

The Greater Montana Foundation, encouraging communication on issues, trends, and values of importance to Montanans.

And viewers like you who are friends of Montana PBS.

Thank you.

(upbeat music)