The Montana Water Use Act, passed in 1973, established a framework and an administrative process by which the state could better account for the amount, ownership, and priority of existing water rights. Montana operates under the Prior Appropriations Doctrine which essentially means the earlier a landowner claims a right, the higher priority the right has over “younger” upstream and downstream rights.
Prior to 1973, there was no formal process in Montana for recording a water right. All a user needed to do was put the water to beneficial use (i.e. irrigating crops or livestock) and they were considered to have claimed the right. Because there were no comprehensive collection of water right records, it was impossible to know how much water was being used in each water basin and whether there was any water left to be appropriated to new users. In response, the Montana Legislature created the Montana Water Court in 1979, assigning it the daunting task of adjudicating over 219,000 pre-1973 water rights. Impressively, the court has only about 57,000 claims left to adjudicate.
The Water Court website provides a lot of background information on water law in Montana, the history of the court, and what it does. You can easily find these resources under the General Information box on the homepage. The Outline of Basic Montana Water Law and the Step-by-Step Guidebook are good places to start.
Water right owners often opt to represent themselves in the adjudication process. So you might notice that a lot of the information provided on the site is geared toward assisting individuals in doing so effectively. The most helpful links to this end are also found in General Information under Representing Yourself. Although the water court follows the same rules and laws of the district courts, it also follows its own set of unique rules which can be found under the Local Rules tab.
As you familiarize yourself with the site, you may notice that some of the links on the home page will send you to the Department of Natural Resources (DNRC) Water Resource Division website. This is because the court is paired with the DNRC in certain apsects of its work. The Water Court has exclusive jurisdiction over determining pre-July 1973 water rights and the DNRC has exclusive jurisdiction over post-July 1973 water rights. Although the courts’ jurisdictions do not overlap, DNRC provides technical assistance to the Water Court. For example, DNRC’s Water Adjudication Bureau assists the Water Court by providing it with a summary report of each of the 85 water basins in the state. It also compiles a handy map which shows the status of adjudication across the state. If you wanted to see what the status of the water right adjudication was in your home basin, you would click on the Basin Status Sheet link on the Water Court home page under Adjudication Information.
This will take you to the DNRC’s Water Adjudication Bureau’s page which displays the water basin map. The information is also displayed in a table just below the map.
What does the status of your basin mean and why might it be important? Think of water adjudication as a kind of accounting. The purpose of the adjudication process is to determine how much water is being used and whose rights are superior to others. Downstream users are increasing their usage and demand of water. But until each basin knows exactly how much water it uses as compared to how much it has, existing right holders cannot effectively defend against demands or calls on water from downstream users. In basins that have final decrees, the total amount of water use is concretely known which makes enforcing rights, settling disputes, and planning for future development possible.
Let’s say you are a cattle rancher in Dillon, MT and you are curious about the status of water rights adjudication in your basin. If you locate Dillon on the Basin Location and Adjudication Map above, you will see that you are located in Basin 41B. Find Basin 41B in the table below the map and click on the basin name, Beaverhead River.
This will take you to the summary page for the Beaverhead River Basin. The summary page will include everything you could ever want to know about the court’s findings in the Beaverhead Basin. The Notice link is a good place to start. The Notice of Entry of Preliminary Decree and Notice of Availability is what the court releases after a preliminary decree is issued. It provides a summary of all the water rights in the basin and provides instructions for reviewing the decree and making objections.
For a detailed breakdown of each water right in the basin, go to the Index Instructions and choose how you want the information organized. Organizing by Owner or Water Right Number (if you happen to know yours) is probably the easiest way to search. This dense document will show all the claimed water rights in the basin and information about each right including the priority date (when the right was claimed by beneficial use), the flow rate (how much water is included in the right), the location and source from which the water is diverted, and the owner of the right. For example, the J Bar L Ranch owns an 1856 water right which entitles them to use 201.96 gallons per minute (GPM) from the Beaverhead River, presumably to irrigate their crops or water their livestock.
Now let’s say that you were less interested in the status of water right adjudication, but you had a research paper due for water law on the topic of water right transfer in the State of Montana. The court has a useful case search function that you will find under General Information by clicking on Significant Case Search.
This will take you to a helpful instruction page. When you are ready to commence a search, click the Search button at the bottom of the page.
Although the search page is extensive, don’t feel pressured to fill in all the boxes. You may find that if you narrow your search too much, you will come up empty handed. Remember that this is not a massive database like the ones you may be used to, so start broad and refine as needed. All that the search page requires is that you fill in at least one box.
If you are doing a broad topic search, it is a good idea to start by looking through the KeyWords drop down menu. The topic of your research paper just so happens to be an option, so let’s choose Transfer of Water Rights and see what we get.
This is why you want to keep it broad; and remember, the site does not provide all cases ever decided by the Water Court, it only provides the significant cases. If you click on the case you would like to read, you then have the option of looking at the case Summary or the actual Decision. (Note: some cases will only have a summary or the decision, not both).
The Summary provides a brief synopsis of the case and a list of all applicable statutes, case law, and other authority used to decide the case. The summaries are a great resource and a really nice way to start researching particular topics in an area of water law.
This overview touches on just a few of the many useful features and resources available at the Montana Water Court website. Don’t fear the seemingly murky waters of Montana water law, jump on int! The Montana Water Court is here to help.Authored by Katelyn Hepburn, 2L, University of Montana School of Law. Katelyn is interested in environmental and natural resource law. She used this blog post as an opportunity to learn more about the Montana Water Court as she will be interning there this summer.
Photo Beaverhead River: Stephen J. Conn via photopin.com cc. Remaining photos: courtesy of the Montana Water Court and The DNRC’s Water Resources Division