Bill and Donna Fraser stood on their property along Indian Creek outside Sheridan, Montana, in 2012, peering into the once-thriving stream that flowed through their land since they purchased it in 1994.
What had been a rippling tributary to the Ruby River, teeming with brown trout, was transformed into a mere trickle.
“We had just in our little stretch of property here, we’d have sometimes 20-25 redds,” Bill Fraser recalled, referring to the nests where female fish lay their eggs. “One of the saddest things is that over time, we started noticing they’re getting smaller and smaller as these big fish were just dying off, couldn’t reproduce.
“They spawn in the fall. Then they just die in the spring because there’s no water.”
The Frasers, who had dedicated years to studying the stream's flow, began to measure the water levels meticulously in spring 2000.
Their observations revealed a stark decline in cubic feet per second (cfs) flowing through the culvert that crossed into their property. Where once they recorded flows of 40-100 cfs, by 2012 the numbers plummeted, raising alarms about the viability of the stream and the future of their land.
For more than a decade, Fraser drew on his skills as a scientist—he’s a retired polar ecologist who spent much of his career in Antarctica—and built a case in defense of Indian Creek.
Fraser decided to file a complaint in Montana Water Court in 2021 to help restore the stream on his property. He knew he was taking on entrenched powers around Sheridan, but he hoped his work could help improve Montana’s system for managing water.
Then this summer, all his work paid off when the Montana Supreme Court confirmed his stock water right and rejected the claims of his neighbors upstream.
Fraser’s success in the courts points the way for other water rights holders who can supply historic documentation and scientific evidence affirming those rights. Similar fights continue to unfold in Idaho and Wyoming, where the courts and state officials must grapple with the arcane yet all-important legal mechanisms for allocating water.
For Fraser, court victories may not end his ongoing battle with other water users upstream, as the collateral damage from his fight remains.
“We've lost a lot of friends,” said Fraser, recalling uncomfortable moments at the grocery store and post office, where he’s been cursed as “a goddamn conservationist.”
Neighbors Clash
In 2017, the Montana Legislature passed House Bill 110, which aimed to clarify water rights across the state. The bill prompted property owners to declare and claim their water rights, leading the Frasers to file their claim by a 2019 deadline.
But Water Commissioner Del Bieroth refused to enforce Fraser’s claim to a senior stock water right that dated back to 1866. Fraser filed a complaint in 2021 against Bieroth, and this drew prominent rancher Beau Bradley into the fight.
Bradley stood up for Bieroth and united with other landowners against the Frasers’ claims. He contended that Fraser's water rights were invalid, arguing that the rights had been “stripped off the ranch back in 1916” when the property was sold, and that Indian Creek's water could not reach Fraser’s land due to geological conditions.
“There’s no Indian Creek water getting down there,” Bradley asserted, expressing his belief that forcing upstream users to send more water downstream would jeopardize their own irrigation needs. Bradley went further, claiming if Fraser’s water rights were upheld, the reallocation of water could break up small family ranches along Indian Creek.
“It’s going to cause a lot of ranches to subdivide if they can't get water,” he said. “These people don't realize when they're taking some of these environmental pushes that all it's going to do is push the little guys out all the way. You know, we're going to have a valley owned by billionaires.”
Montana Supreme Court Rules
As the legal proceedings unfolded, the Montana Water Court became a battleground for the Frasers and Bradley. The court's findings in favor of the Frasers ultimately led to the Montana Supreme Court hearing the case.
In July, the justices ruled that the Frasers had a valid claim to the water, affirming their rights and outlining the historical context of their ownership.
In its decision, the Montana Supreme Court acknowledged the complexity of water rights disputes in the West, often characterized by a “complex chain of title” and historical claims that had been frustrated by inconsistent water supply and periods of drought.
The ruling was not only a victory for the Frasers but also a significant moment for other water rights holders in Montana. It underscored the importance of historic documentation and scientific evidence in establishing water rights, perhaps encouraging others in similar situations to pursue their claims.
Conflict Continues
Fraser’s attorney Graham Coppes is a former fishing guide who said he went to law school because he wanted to wade into these kinds of fights.
Coppes said somehow along the 5.5-mile journey between where Indian Creek exits the Tobacco Root Mountains and enters Fraser’s land, the water is vanishing.
Bieroth, as water commissioner, should be able to account for every drop, said Coppes. But he and Fraser don’t trust Bieroth to do his job.
Water rights holders have used trail cameras to enforce water claims, said Coppes, who plans to go back to court with Fraser and ask for Bieroth to be replaced before the start of the 2025 irrigation season next spring.
“We want someone neutral that doesn't have experience with these parties to come in from the outside and enforce these water rights,” said Coppes.
Water Battles Across the West
Those involved in the conflict over Indian Creek are part of a growing cadre of landowners who find it necessary to take their complaints to the courts.
In September, a federal court in Boise ruled in favor of ranchers and property owners who were fed up with federal agencies skirting state law and not honoring local water rights. And in Wyoming, the state remains part of the epic battle over water draining into the Colorado River.
On the local level, Wyoming tried to head off conflicts between water rights holders and firefighters before the height of the 2024 wildfire season. The Wyoming state engineer issued a memo asking water rights holders to assist firefighters should they need to access water on their property.
“It would be helpful if you keep a log of where water is obtained and an estimate of how much water is used,” suggested the memo.
Many water rights holders don’t need to be asked to keep track of the precious flows entering their property. Like Bill Fraser, they know every drop counts. And that accounting for every drop comes at a price.
“We’ve taken it in the shorts,” said Fraser looking back on his water fight. “We’re outsiders and troublemakers is the way people are looking at us. But it’s a story worth telling.”
Coppes, Fraser’s attorney, agrees.
“The bigger story is about managing a scarce resource into the future. Availability of water is likely to change. All scientists tell us that it's likely to change,” noted Coppes. “Across the state illegal water use is happening thousands of times every day. Montana has zero enforcement mechanisms through the state. So it's left to individual neighbors to be the police force.”
David Madison can be reached at david@cowboystatedaily.com.
