When rivers such as the Clark Fork, Big Hole and Jefferson become warm, low and marginally fishable in summer, Montanans often head to the high country of national forests to fish, picnic or lounge among streams that flow cold and continuously even during prolonged dry spells. Because 70 percent of Montana is private land and water rights for irrigation trump all other uses on most rivers, streams on national forests are becoming more important as recreational destinations for a growing population.

Our national forests. The very places we can always count on to have healthy stream flows. Right?

Not necessarily. Protection of streams, wetlands and groundwater on national forests will be profoundly affected by quiet negotiations occurring today between the U.S. Forest Service and an under-the-radar state authority called the Montana Reserved Water Rights Compact Commission. So far the seemingly sensible concept of leaving water in stream for fish, recreation and public health -- and to provide continuous flows for accommodating existing water-right holders downstream on private land -- isn't winning the day.

The negotiations are arcane and mind-numbing, but the result could be far-reaching. It will ultimately settle whether the Forest Service has a legal right -- and if so, how meaningful it will be -- to protect streams from future development under Montana's "first in time, first in right" water use law. A Forest Service and commission accord could settle for perpetuity who has priority say in the future of all water on national forests in Montana -- including in developed and undeveloped tracts, designated wilderness, and wild and scenic rivers. At stake is the protection of water for countless lakes, waterfalls, wetlands, critical fisheries and spectacular vistas.

Curiously, the state's negotiators on the commission appear reluctant to recognize any legal ability in the Forest Service to protect these public resources beyond a few paltry tools granted by (and revocable by) Congress. And they're playing hardball, forcing the Forest Service to navigate technical and legal knotholes in order to justify the seemingly common sense conclusion that to be healthy the public's streams, fisheries and natural areas need water.

Most frustrating is the compact commission's unwillingness to accept that the Forest Service and the State of Montana have a mutual interest in protecting water left in stream on national forests. Both have obligations to protect fish and wildlife. Both must protect water quality, which is directly affected by how much water is left in stream. And, importantly, both -- but most directly the State -- have an obligation in ensuring that existing water users on private lands below national forests, such as irrigators and operators of hydroelectric dams, don't have to worry that their rights will not be undermined by future stream depletions above them on public lands.

Montana lawmakers historically have been reluctant to grant water rights for flows dedicated to fish and recreation. One exception was back in 1969 when the Legislature granted very junior-in-priority water rights -- known as "Murphy Rights" -- for instream flows on 12 Montana trout streams, including the Smith River, the Blackfoot River, Rock Creek and the Gallatin River. In most years, because more senior off-stream uses must be met first, there is not enough water to fulfill the Murphy Rights. Thereby it seems sensible that the State has an interest in ensuring national forests continue to yield flows for helping meet the downstream Murphy Rights. But nope. State negotiators seem reluctant to recognize Forest Service water rights that benefit the Murphy Rights. And thus State of Montana negotiators are inexplicably negotiating against the interests of the State of Montana.

The Forest Service would like to legally protect its streams from future development. To accomplish this, the agency needs state-based water rights for leaving water in stream on national forests - water rights that protect federal AND state interests. Those state interests include delivering reliable supplies of water to downstream irrigators, as well as supporting fisheries and recreation on Forest Service lands. Unless the public tells the Montana Reserved Water Rights Compact Commission -- and Gov. Schweitzer -- to treat the Forest Service as partners, future Montanans might miss opportunities to enjoy the splendid streams that define the legacy that is our national forests.

Stan Bradshaw works on water right issues for Trout Unlimited's Montana Water Project.