Montana Attorney General Austin Knudsen on Irrigated Agriculture and Water Policy

Austin Knudsen is a Montana native who grew up in a rural farming community and has extensive experience with irrigated agriculture. After studying law, Mr. Knudsen served four terms in the Montana House of Representatives, including two as the speaker of the house, and then served as a county attorney. In 2020, he was elected Montana’s attorney general. In this interview, Mr. Knudsen tells us about his work as attorney general; expands on the importance of irrigated agriculture for Montana’s economy and culture; and shares his thoughts on the definition of Waters of the United States (WOTUS), the Endangered Species Act (ESA), and other issues of national importance.

Irrigation Leader: Please tell us about your background and how you came to be in your current position.

Austin Knudsen: My background is farming and ranching in Bainville, a small rural town in northeastern Montana. My kindergarten class had six students total. I grew up on the family Angus cattle ranch, which is located near the confluence of the Missouri and Yellowstone Rivers. We started largely in dryland farming, but as I got older, we started to diversify into center-pivot irrigation, and that became our focus. That was a huge part of my life throughout my high school and college years, and even after I graduated, I came back home and continued farming with my family. My family still owns the place, and my parents and grandmother are still there, though since my father retired, we’ve rented it out. Before his retirement, he grew a lot of alfalfa, spring wheat, and sugar beets. Because of this experience, I speak irrigation quite fluently.

After law school, I moved back home and started practicing law in my hometown and in a neighboring community, but I was approached pretty quickly to run for the state legislature. I ran successfully against an incumbent Democrat and ended up serving in the Montana House of Representatives for four sessions, which is 8 years. Term limits dictate that an individual can only serve 8 years in one chamber of the state legislature during a 16-year period. I was the speaker of the house during the 2015–2017 and the 2017–2019 sessions, which makes me the first multiterm speaker Montana has had since term limits were put in place.

After my time in the legislature, I returned home. The area was having a lot of methamphetamine and crime problems, and it is a rural area without a ton of law enforcement. Because of that, I ended up running for county attorney, which is the local elected prosecutor position similar to district attorney. I served as the county attorney in Roosevelt County from 2018 to 2020. In 2020, I was elected as Montana’s attorney general, and I was sworn in in January 2021.

Austin Knudsen on his family farm outside Bainville, Montana.

Irrigation Leader: Please explain your role and responsibilities as attorney general.

Austin Knudsen: As attorney general of Montana, I oversee the Montana Department of Justice. The department has roughly 900 employees across the state and includes several agencies. I oversee the Montana Highway Patrol; the Division of Criminal Investigation; the Office of Consumer Protection; the Gambling Control Division; the Forensic Science Division, which is the crime lab; the Motor Vehicle Division, which is probably the agency with the largest footprint

Austin Knudsen works on a center pivot at his family farm.

across the state; the Justice Information Technology Services Division, which is our standalone information technology department; the Civil Bureau; and the Appellate Division, which includes criminal investigators, criminal prosecutors, civil attorneys, and federal solicitors.

Irrigation Leader: Would you give us an sense of the overall importance of irrigated agriculture in Montana?

Austin Knudsen: It’s vital to our state’s agriculture and its economy. Montana is a fairly arid state, and while we’ve got a lot of dryland farming, we have a tremendous number of irrigated acres as well. We’ve got a number of robust irrigation districts and diversions, and some producers pump directly out of our rivers.

There’s probably no better argument for the importance of irrigation than the nationwide hay shortage that was caused by drought last year. It resulted in a lot of livestock leaving the state and going to market, unfortunately, but irrigated feed corn and alfalfa fed a lot of cattle in Montana. We’ve also got a pretty robust sugar beet industry up and down the Yellowstone Valley and even in the Missouri Valley, where I’m from, as well as two sugar beet processing plants. Beets require a lot of water, so that is an irrigationintensive industry and crop. Irrigation Leader: Would you give us your thoughts on recent discussions about the definition of WOTUS and how those discussions stand to affect Montana farmers?

Austin Knudsen: This question, which is arising again under President Biden, should have been left alone, because it has been settled. President Obama revised the definition of WOTUS, and I think President Trump did the right thing by rolling that change back. Simply put, we have to ask ourselves whether the Clean Water Act and the definition of WOTUS give the federal government the authority to regulate every drop of water in the country, taking much of that power away from the states. I’m a big states’ rights guy. I think Montana does a really good job protecting and regulating our water. Irrigation has been going on in Montana since before we became a state. We’ve got a sophisticated system and robust jurisprudence dealing with water. We have a standalone water court; multiple water masters; and a Department of Natural Resources and Conservation, which permits water rights in Montana. We don’t need the federal government in Washington, DC, telling us how to do things from 3,000 miles away. We don’t need it regulating our stock ponds and livestock dams. I think the potential redefinition of WOTUS is dangerous.

Irrigation Leader: Would you tell us about the ESA and its effects on Montana farmers?

Austin Knudsen: I can talk about this from personal experience. My family irrigates directly out of the Missouri River below Fort Peck Dam. In 2011, the U.S. Army Corps of Engineers released a historically unprecedented amount of water out of Fort Peck Dam. It flooded out our place and the irrigation systems of many of my neighbors, causing a tremendous amount of damage that is still being mitigated 11 years later. The Army Corps told us that it was caused by a test of a spring pulse flood intended to help the spawning of the pallid sturgeon, which the U.S. Fish and Wildlife Service (USFWS) has determined is threatened under the ESA.

The Biden administration has now sent out a notice that it intends to do this annually. It hasn’t given us a time frame; it has said it might happen anytime from April to October, which is our entire growing season. A flood at any time during that window would destroy Montana farmers’ livelihoods for the year. The Army Corps and the USFWS have indicated that they’re going to do this, though they haven’t promulgated the rule yet. Frankly, I think what saved us this year is the fact that Fort Peck Lake is so low that they don’t have enough water to release.

This situation is very concerning to me; it is near and dear to my heart. I’ve instructed my solicitors that we are going to get involved in this fight. We’ve got a lot of our legwork done. I would like to take my solicitors on a road trip to show them Fort Peck Dam and some of the irrigation sites below the dam that were destroyed following

Fort Peck Dam, located on the Missouri River near Glasgow, Montana.

the 2011 release. We are absolutely going to fight the administration if it does this. I don’t think that a piece of federal legislation intended to protect endangered species should suddenly be used to start demanding that the Army Corps operate its infrastructure a certain way. I don’t think that was ever the intention of the ESA.

Irrigation Leader: What other state and federal legal issues stand to affect Montana irrigated agriculture?

Austin Knudsen: One of them is tribal reserve water rights. That’s one I have I have some experience with. In 2015, Montana passed the Confederated Salish and Kootenai Tribe (CSKT) Water Compact, which was subsequently ratified by Congress. The state has negotiated several tribal reserve water rights compacts with various tribal governments, but the CSKT compact was much larger and more expensive than any other water compact the state has negotiated, and it has created a lot of controversies, regardless of what side you’re on. A lot of irrigation happens in the Flathead Valley out of various water bodies over which the tribe has now been given authority. There are a lot of sore nerves around that in the Flathead Valley, and I think there are going to be a lot of problems with both tribal and nontribal irrigators operating in that space.

This year, we had historic spring flooding in southwestern and south-central Montana coming out of Yellowstone National Park and the Yellowstone, Madison, Gallatin, and Stillwater Rivers. These were destructive 100-year floods. I think the federal government is going to have a role to play in the recovery. When huge, significant portions of the road in Yellowstone National Park have been washed out, I don’t think we’re just going to be able to roll in there with a D6 bulldozer and rebuild it. I think there will be legal challenges and concerns on the part of environmental groups because of the location of the road in a watershed within a national park. I think Congress is probably going to have to expedite the process and waive some requirements so that we can get those roads rebuilt, because tourism is the second-largest part of our state economy.

Irrigation Leader: What is your message to Congress?

Austin Knudsen: Congress has largely abdicated its role to the president and the federal agencies, especially when we’re talking about water. I’m very critical of the Army Corps and the USFWS when it comes to water and agriculture issues in Montana. I think the ESA has been weaponized and has become the most dangerous, powerful

Agricultural land along the Yellowstone River near Miles City, Montana.

piece of legislation in the country. It has been used as a bludgeon in matters it was never intended to affect. I think Congress needs to take its power back and rein that law in. I think the same is true of the Clean Water Act and the Clean Air Act. Congress needs to be more aggressive; it needs to assert itself and stop abdicating so much authority to the federal agencies.

Irrigation Leader: What is your message to other states?

Austin Knudsen: Other states need to be more aggressive. Some states are afraid to stand up to the administration and to assert their sovereignty and rights. I think what we’re doing in Montana is a great example.

Irrigation Leader: What is your vision for the future of Montana and Montana irrigated agriculture?

Austin Knudsen: Montana is going through an interesting transition right now. We’re seeing a huge population influx. I think the COVID-19 pandemic is a large part of that, and I think some popular TV shows have glamorized our state. We just added a second congressional seat, which we haven’t had for decades. Rural centers are getting bigger, and we are seeing more demand for housing, land, and growth. I think it is an exciting thing for the state. These people like what we have to offer here in Montana. I’m fairly optimistic. I think you are going to see a lot of job growth in Montana. We have one of the lowest unemployment rates in the country. It’s absolutely an employee’s market right now: If you want a job in Montana, there is one available. We’ve got a worker shortage. I think that’s going to make agriculture all the more important. It’s a massive part of our lifestyle as well as a huge part of our economy. If we’re going to keep providing services and government, we have to keep that industry vital and recognize its important place. At the end of the day, we have to keep feeding people. Frankly, without innovative and intensive agriculture, we’re not going to be able to feed people in this country as a whole. It has to be encouraged and protected. IL

Austin Knudsen is the attorney general of Montana. He can be contacted at contactdoj@mt.gov.