Bitterroot residents file suit over approval of gravel pit expansion

by Jacob Owens | Sat, September 14th 2024 at 4:00 PM

Updated Sat, September 14th 2024 at 11:17 PM

LOLO, Mont. — A group of Missoula County residents are suing county commissioners over approving the expansion of a gravel pit south of Lolo.

The controversy surrounds a 66-acre gravel operation between Lolo and Florence. The area is off Old Highway 93 South and McClain Creek Road, owned by the company Western Materials.

The gravel pit can now expand west following the approval of a use variance. The move is expected to increase the mined area to more than 96 acres in the coming decades.

“It was clear to me for months prior that that was going to be the result, but you have to continue to participate,” Graham Coppes, an attorney at Ferguson & Coppes, said. “The law requires you to exhaust that remedy, that local government remedy before you can seek a court’s involvement.”

Coppes’ natural resources law firm represents the Carlton Protection Trust. The trust is a nonprofit made up of residents who live near the pit.

The variance request underwent five public hearings before approval. Concerns raised by opponents included water contamination, the impact on wildlife and truck traffic on Highway 93.

In the filing, attorneys for the Carlton Protection Trust cite public comment and testimony as evidence that the variance would significantly impact residents of the zoning district, and that the variance is not in the public interest.

“My feel of it was that the county was bending over backwards to make this happen. That they were ignoring relevant evidence that showed that this is a harmful and polluting activity,” Coppes told NBC Montana.

The mine’s alleged illegal expansion over the years is another point raised in the lawsuit.

One document cited in the complaint is from the Missoula County Deputy Attorney in 2008, Michael Sehestedt. The letter states that the-then gravel pit officials applied for a permit to expand in 2001, but officials never issued the permit.

However, for several years, the pit and the Department of Environmental Quality operated as if a permit to expand had been issued.

NBC Montana reached out to Missoula County for comment. As of the morning of Sept. 10 the county had not been served, Allison Franz, the county’s communications manager, said, adding that Missoula County does not typically comment on pending litigation.

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See more at NBC Montana.

Judge blasts DEQ for lack of public notice in permitting West Yellowstone wastewater system

Breuner allows limited operation of system for two large commercial campgrounds

BY: DARRELL EHRLICK – JULY 17, 2024 4:54 PM

Gallatin County District Court Judge Andrew Breuner had two unenviable choices: Hurt the water or hurt the economy.

He chose neither in a decision regarding permitting a private wastewater system that sits near one of the greatest tourist destinations on earth, Yellowstone National Park.

At the heart of the court case decided last week and released Monday was whether a new wastewater treatment system for two properties owned by Kampgrounds of America near West Yellowstone, Montana, were properly permitted by the Montana Department of Environmental Quality.

One thing that was not contested in the court case was whether an older antiquated wastewater system needed replacement.

However, neighbors and the Upper Missouri Waterkeeper objected to the new wastewater system that would process thousands of gallons of water a day, using aeration and spraying hay fields to help treat the wastewater. Neighboring property owners, including a guest ranch, worried that the spray of untreated wastewater would cripple its reputation as a tourist destination. Upper Missouri Waterkeeper, a conservation organization concerned with water quality, said it never had a chance to review the system.

Meanwhile, the Kampgrounds of America, which recently bought the commercial campgrounds, said it has spent millions for the property, improvements and planning the wastewater treatment system, and would have never done so if the DEQ had not approved the wastewater processing plan properly, it told the court.

Ultimately, it was Judge Breuner’s dissatisfaction with DEQ for not following state law or the Constitution that is at the heart of the matter, but led to him issuing a narrowly written temporary injunction against the project, at least until it meets the minimum requirements of Montana law.

In a battle that would seem to pit Diamond P Ranch properties against the two KOA campgrounds, it is the state’s own Department of Environmental Quality that received the heaviest criticism from the judge.

“The court is not persuaded by DEQ’s argument that the agency possesses wide discretion under the law to determine when and whether to provide for public participation opportunities or — as is the case here — not to provide any at all,” Breuner wrote.

Rex Portmann, the principal of Diamond P, originally filed the lawsuit challenging the DEQ’s decision, saying that he couldn’t have objected to the wastewater system because there was no public hearing and no public input on the project, a violation of state law and the Montana Constitution’s right to public participation.

Breuner characterized the DEQ’s actions as a “complete absence of any notice.”

In the court order by Breuner, the DEQ seemed to agree with Portmann that it didn’t give any notice of the project. Instead, attorneys argued that since Portmann had inquired about the project, even saying he had wanted to object to it, that he had adequate notice and should have filed a lawsuit within a 60-day window.

However, Breuner rejected that argument and said the DEQ had made no public notice, and the project failed to live up to the required public disclosure of the Montana Constitution, even if the new wastewater treatment system may be demonstrably better than the one it’s replacing. Breuner also said that it was impossible for Portmann to object if he didn’t know where to find the information or if the information had never been made available.

“Even if public notice and participation had been fully afforded, there is no guarantee that rejection of the regional system would have been the conclusion,” Breuner said. “There are indications that the regional system is a marked and environmentally friendly solution to the antiquated system it is replacing.”

While Breuner said that halting the entire project may be appropriate because the DEQ failed to notify the public, doing so may jeopardize hundreds, if not thousands, of people who have made vacation and travel plans, thereby impacting the local economy.

Instead, he ordered the DEQ to restart the process, including following the Montana Environmental Policy Act, which the DEQ had also failed to meet, as well as restart the public participation process, even though DEQ employees told Breuner that they weren’t required to do so — a point which he corrected.

“MEPA required some measure of public notice and participation in its review of the regional system and there was, by DEQ’s own admission, none,” Breuner wrote.

For the remainder of the summer tourist season, the KOA will be allowed to operate the system with some limitations, which the judge said would hopefully minimize the impacts to Diamond P.

The judge also said that Portmann discovered the project because he could see the construction and activity taking place, which tipped him off to the KOA’s actions. But Breuner said that even if the court accepted that Portmann was notified of the change, the rest of the public, which has a right to clean water and a clean environment according to the Montana Constitution, would have no way of knowing about the new wastewater treatment facility.

“The court initially observes that an agency’s admitted failure to provide lawful public notice and participation … are germane to the substance of the underlying assessment and decision making because a process that lacks necessary public input is arguably offensive to due process guarantees against arbitrary and capricious government action,” Breuner said.

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See on the Daily Montanan.

Idaho farmers say water curtailment order will dry up land, push them out of business

Idaho Department of Water Resources issued May 27 order that could dry up 500,000 acres of Idaho farmland

BY: CLARK CORBIN – JUNE 4, 2024 5:10 AM

Faced with a water curtailment order issued last week, third generation Idaho farmer Adam Young isn’t just thinking about preparing to cut alfalfa or anxiously waiting for his wheat to flower.

Today, Young is confronting the reality of up to 70% of his family’s 2,700-acre farm in eastern Idaho’s Bingham County drying up this year. 

Unless there is an emergency stay to the curtailment order, Young said the water will be shut off. Meanwhile, the crops are already in the ground. Young has already invested in seed, fertilizer and other inputs he said total $400 per acre.

If the water is shut off, Young said that would mean a total loss for this year’s wheat and barley crop and he would expect to get one cutting of alfalfa in, instead of the three he hoped for.

“Being done for this year means absorbing several million dollars in losses this year and we don’t recover from that,” Young said in a phone interview. “That would spell the end of our business and that’s true for everybody else frankly who is farming.”

Young is among the eastern Idaho and Magic Valley family farmers and other water users who hold the 6,400 groundwater rights that are subject to curtailment. The Idaho Department of Water Resources said those water rights holders are being subject to curtailment because they are not in compliance with a state plan. 

While some groundwater users and districts are subject to curtailment, others users and districts found to be in compliance with a state plan are not subject to having their water shut off.

The Idaho Department of Water Resources said curtailment – or shutting off the water – is necessary because of a predicted water shortfall this year.

When it announced the curtailment order Thursday afternoon, the Idaho Department of Water Resources estimated 500,000 acres of farmland could be affected by shutting off the water.

To put that in perspective, Young said that amount of farmland is about five times the size of the cities of Boise, Meridian and Eagle combined. 

The history of the Young Family Farms dates to 1952 when Young’s grandfather, Darwin Young started the farm.

Adam Young said the farm sustains his parents, his family, his brother’s family, two-full time employees with 30-years of experience, two landlords and additional part time and seasonal employees.

Rep. Stephanie Mickelsen, R-Idaho Falls and the chair of the Idaho Groundwater Appropriators, is also affected by the curtailment order. Mickelsen is CFO of Mickelsen Farms, which grows several varieties of potatoes, as well as winter and spring wheat varieties. With the curtailment order, Mickelsen estimated she would only be able to water and farm about 80 acres out of 7,000 acres.

“You’re talking about wiping out family farms and other businesses across the ag sector,” Mickelsen said in a phone interview on Monday. “It’s basically a draconian way to bring about what they need.”

How are water issues governed in Idaho?

On Thursday, Idaho Department of Water Resources Director Mathew Weaver issued a curtailment order that requires 6,400 junior groundwater rights holders who pump off the Eastern Snake Plain Aquifer to shut off their water, the Idaho Capital Sun previously reported

In Idaho, water issues are governed by what is called the doctrine of prior appropriation, which means the older senior water rights have priority over the newer junior water rights. When there isn’t enough water to go around, the senior water rights get priority while the junior rights get curtailed, or shut off.

Generally, surface water users in Idaho have more senior water rights, while groundwater users have junior water rights.

For example, the Twin Falls Canal Co. holds senior water rights that date back to 1900. On the other hand, the groundwater users affected by Thursday’s Idaho Department of Water Resources curtailment order hold junior water rights dating back to 1954. 

Curtailment is coming into play because in April, Weaver issued a water methodology order that predicted a water shortage of 74,100 acre-feet of water to the Twin Falls Canal Co. Acre-feet is a measurement that represents the volume of water covering an acre of land in water exactly one foot deep. According to the Water Education Foundation’s website, an acre is about the size of a football field. 

The Idaho Department of Water Resources says the groundwater users subject to the curtailment order are being forced to stop pumping water because they are not in compliance with or stopped participating in an approved state plan. The Idaho Department of Water Resources said there are two plans water users can participate in to avoid curtailment when there is a water shortage. One is a 2009 plan submitted by the Idaho Groundwater Appropriators. The other is a settlement agreement from 2016.

Groundwater users who spoke to the Sun don’t agree that they are out of compliance. They said they provided documents to the Idaho Department of Water Resources verifying they have provided enough storage water to cover their proportional share of the predicted water shortage and believe they are holding up their end of mitigating under a 2009 plan. 

But under the 2009 plan, the Idaho Groundwater Appropriators provided enough water to cover the entire shortfall of the surface water users, not just their proportional share, said Brian Patton deputy director of the Idaho Department of Water Resources.

“They offered it conditionally upon the director agreeing with them that that is the extent of their obligation,” Patton said in a phone interview Monday. “The director could not agree to that.”

Now, Patton said the department was obligated to take action to protect senior water rights holders from a water shortfall.

“The law and the court’s direction about that law is very clear,” Patton added. “If there is a finding of injury to the senior water right holders, and the junior water right holders are not operating in compliance with an approved mitigation plan, the director’s obligation is to curtail.

See Idaho Capital Sun.

Montana Supreme Court’s Unanimous Decision Voids Permit for Creston Water-Bottling Plant

Montana Supreme Court reverses the Montana Department of Natural Resources and Conservation (DNRC) grant of commercial water right to Montana Artesian Water Company in Creston, MT

For seven long years, the attorneys at Ferguson & Coppes have worked diligently to protect water rights and hold the Montana Department of Natural Resources and Conservation accountable for its decision making. This saga – the largest administrative proceeding ever before the Department – now is over as the clients of Ferguson & Coppes recently prevailed in their most recent appeal to the Montana Supreme Court.  

In 2015, the Montana Department of Natural Resources and Conservation (DNRC) issued a water use permit, allowing the Montana Artisan Water Company (MAWC) to produce up to 140,000 water bottles per hour, 24 hours a day, seven days a week – roughly 1.2 billion, 20-ounce water bottles annually – by tapping into a groundwater aquifer along the Flathead River. 

Although MAWC insisted it would only use a fraction of the water-usage capacity assigned under the permitted right, the bottling operation attracted considerable attention, fueling concerns among neighbors and residents living near the Egan Slough property. Nonprofit conservation organizations Water for Flathead’s Future and Flathead Lakers, along with a list of residents, sued the state Department of Environmental Quality and the Department of Natural Resources and Conservation, challenging the two permits granted to MAWC that the state agencies issued — one for wastewater discharge and another for water usage.

All briefs having been submitted on November 30, 2022; our attorneys and clients eagerly awaited a response from the Montana Supreme Court, which came on May 16, 2023 in a 44-page unanimous decision.

The Supreme Court upheld a decision by a district court judge in Helena that said the state erred when it issued a permit to MAWC in 2017, citing that the company did not provide sufficient data, as required by DNRC’s own rules, for the agency to conduct a valid scientific analysis and justify issuing the permit. In its decision, the Supreme Court said DNRC made a mistake in its decision to approve the permit by committing errors of law during the processing of the application, including the failure to submit all the data and failure by the agency to fulfill its duty to analyze all potentially affected water sources. “The errors of law and process undermine confidence in the agency’s determinations … Consequently, this combination of deficiencies leaves us with the definite and firm conviction that, upon review of the whole record … a mistake was made.” Because there is so much water in the aquifer, the agency “assumed the proposed well would have little impact and passed it along without diligent review,” the Court wrote.

“Objectors marshalled extensive expert testimony and addressed a voluminous record to support their claims. Objectors uncovered the errors in DNRC’s review process that led the District Court, and now this Court, to reject the permit, despite usual deference owed to the agency. After extensive effort, Objectors are clearly the prevailing party.”

Flathead Lakers Inc. v. Mont. Dep’t of Natural Resources & Conservation

Counsel for Petitioners Graham Coppes said he was “thrilled” with both the substance and the tone of the Court’s decision. Beyond striking down DNRC’s flawed decision making process and scant hydrology, in a spectacular move out of pure equity for their effort and winning arguments, Montana’s high court awarded our clients their attorney’s fees. Following remand, Ferguson & Coppes, was able to secure hundreds of thousands of dollars for their clients (paid in settlement), both from the bottling company and the DNRC.

In a true “David vs. Goliath” story, Montana’s citizens were the true victors in a decision that will stand testament to the value of cherished and pristine water resources.

Read the Supreme Court Decision here.

See Flathead Beacon and Daily Inter Lake.

Montana Judge Hands Historic Win to Young Plaintiffs in Climate Change Case

Held v. Montana Decision: Montana is violating the rights of young people with policies that prohibit the state from considering climate change effects when it reviews coal mining, natural gas extraction and other fossil fuel projects

The 103-page decision by Judge Kathy Seeley in the Lewis and Clark County District Court in Helena marked a major victory in the first youth-led climate case to reach trial in the U.S. and could influence similar cases nationwide.

16 plaintiffs filed the lawsuit in 2020, then between the ages of 2 and 18, claiming the state’s permitting of projects like coal and natural gas production contributed to climate impacts to Montana’s environment, harming the young plaintiffs. 

The case was brought against the state, the governor, the Montana Department of Environmental Quality, the state’s public commission office, as well as other state departments. The plaintiffs’ claims have been confirmed, as Seeley states that the plaintiffs, now aged 5 to 22, have a “fundamental constitutional right to a clean and healthful environment.” Seeley also held that policies that prohibit state agencies from considering climate and emissions impacts when approving fossil fuel projects are unconstitutional. 

Montana is one of only three states that have the affirmative right to a healthful environment in their constitutions. That legal language (see below) was a cornerstone of the Held v. Montana case, which had young people testify directly about climate impacts upending their lives, including lead plaintiff Rikki Held, 22, who testified that droughts have left “skinny cows and dead cattle” on her family’s ranch in eastern Montana and wildfires have made ash fall from the sky. Climate scientists, policy researchers, and a delegate to the 1972 Montana Constitutional Convention also testified on behalf of the youths. 

(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. (2) The legislature shall provide for the administration and enforcement of this duty. (3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources. 

Mont. Const. art. IX., § 1.

In the June 2023 trial, Plaintiffs argued that despite its sparse population, Montana is responsible for a large share of global emissions, through the major production of coal, oil, and gas, as well as pipelines and other infrastructures that are used to ship those fuels elsewhere. 

Expert witnesses presented scientific facts concluding that there is an overwhelming scientific consensus that the Earth is warming as a direct result of greenhouse gas emissions, primarily from burning fossil fuels. Judge Seeley’s decision cited those expert witness testimonies, as well as the evidence that Montana’s temperatures are expected to increase, and with that, increased impacts of climate change, such as heat waves, that have adverse impacts on young people’s mental health and quality of life.  

“Youth plaintiffs have experienced past and ongoing injuries resulting from the state’s failure to consider [greenhouse gas emissions] and climate change, including injuries to their physical and mental health, homes and property; recreational, spiritual and aesthetic interests; tribal and cultural traditions, economic security and happiness”.

The state argued that climate policy should not be set by courts and the plaintiffs had not proved that the global crisis could be attributed to Montana’s relatively small emissions.

A spokesperson for Montana Attorney General Austin Knudsen (R) called the ruling absurd, and said in a statement that the state will appeal the decision.

This “legal theory has been thrown out of federal court and courts in more than a dozen states,” according to spokesperson Emily Flower. “It should have been here as well, but they found an ideological judge who bent over backward to allow the case to move forward and earn herself a spot in their next documentary.”

What This Means 

Judge Seeley issued declaratory relief, which will have an impact on Montana’s policies moving forward by “invalidating statutes prohibiting analysis and remedies based on GHG emissions and climate impacts.” 

“By prohibiting consideration of climate change, GHG emissions, and how additional GHG emissions will contribute to climate change or be consistent with the Montana Constitution, the MEPA Limitation violates Plaintiffs’ right to a clean and healthful environment and is facially unconstitutional,” the ruling said. 

Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, said Seeley’s findings, including that climate change is a serious health and environmental threat, could “become an inspiration” for lawsuits in states with similar constitutional provisions and make it more difficult for defendants to wave away climate concerns. “I think this is the strongest decision on climate change ever issued by any court.”

Lawsuits that use a safe climate as an affirmative human or constitutional right are abundant in courts worldwide, but success has been mixed for advocates filing these lawsuits in the US. That is slowly changing. In addition to this ruling, the Hawaii Supreme Court recognized a human right to a stable climate in a March ruling against a biomass power plant developer. 

The clear, constitutional language established in this ruling may also boost the push for affirmative climate rights in more than 15 other states considering similar provisions in their own constitutions, according to Maya van Rossum, founder of the Green Amendment for the Generations national movement. “That’s really important, because it’ll help make sure that when these kinds of constitutional provisions are passed in other states, they’re even stronger when it comes to climate,” van Rossum said.

Youth-Led Climate Cases 

The case was just one of several youth-led climate cases, seeing young climate activists suing governments across the US over degradation of the climate through oil and gas development. Another of those cases is Juliana v. US, a landmark lawsuit against the federal government that was greenlighted to proceed to trial by an Oregon district judge in June after being dismissed by the 9th U.S. Circuit Court of Appeals in 2020. Another case filed by young people in Hawaii against the state’s Department of Transportation is scheduled to go to trial next year, making it the second in the country to do so.

Lawyers from legal nonprofit Our Children’s Trust spearhead the cases and lauded the “sweeping” Monday victory in Montana. “Today, for the first time in U.S. history, a court ruled on the merits of a case that the government violated the constitutional rights of children through laws and actions that promote fossil fuels, ignore climate change, and disproportionately imperil young people,” Our Children’s Trust Chief Legal Counsel Julia Olson said in a statement. “In a sweeping win for our clients, the Honorable Judge Kathy Seeley declared Montana’s fossil fuel-promoting laws unconstitutional and enjoined their implementation.”

New Montana Water Rights: Part III

Form 602: A Step-by-Step Guide

Perhaps the most common and legally mystifying water right, 602 Water Rights are distinct from those discussed in Parts I or II of this series in that they do not require full review by the Department of Natural Resources. These water rights are typically for domestic uses and are limited to a flow rate of 35 gallons per minute and a total volume of 10 acre-feet per year. While these parameters seems simple on their face, administration and enforcement has proven to be a different story. This is particularly true as water uses in Montana change with population trends. Particularly in the Western half of the State, these exempt water rights are more and more often capitalized on for subdivision development as “exempt wells.”   

Thirty-five gallons per minute is a relatively substantial flow rate. Ten acre-feet is, likewise, a substantial volume of water (think one acre of land filled with 1 foot of water, and then multiply that by 10). Paired with the limited regulatory review required to obtain this type of water right, 602 water rights are widely relied upon by new water users to claim water rights appurtenant to their property.  Below is a brief guide for filing a 602 water right in Montana. 

Form 602:  Notice of Completion of Groundwater Development

This form is used for water rights that divert no more than 35 gallons per minute and 10 acre-feet per year. Below is a step-by-step guide for researching and compiling the necessary information to claim a 602 Groundwater Certificate in Montana:

  1. Provide Legal Property Ownership Information. This information will usually be obtained directly from the recorded deed granting you ownership. If the property is owned in Trust or by an Entity (LLC, corporation, etc.), you will also be required to specify the name of the Trust or legal entity.
  2. Confirm that Water Has Been Put to Beneficial Use. If you are unable to confirm that the water you are claiming has already been put to beneficial use, then you are not able to lawfully file Form 602. For instance, if you are building a house but have not yet applied water for domestic use, you must wait until you have started to apply the water towards your beneficial use before filing Form 602. 
  3. Describe Means of Diversion. Identify if your groundwater diversion is via well, developed spring, or pit/pond, as well as providing specifics if applicable.
  4. Describe the Flow Rate Used. Identify in gallons per minute the Flow Rate you are pumping by performing the 5-gallon bucket test, or larger tank if necessary. 300/number of seconds = flow rate in GPM.
  5. Other Wells, Developed Springs, Pits on Property. Identify whether there are any other similar groundwater diversions located on your property and include a map of your property indicating the location of each diversion, the distance apart each diversion, and the water right number associated with each diversion if available. The DNRC will accept both hand drawn maps or printouts. 
  6. Other Water Users and Water Rights Associated with Point of Diversion. Identify and confirm whether any other water user relies on the well, developed spring, or put you have identified. Additionally, the DNRC requests that you explain the situation and provide water right numbers for any other existing water right.
  7. Purpose & Period of Use. Identify the purpose of your water right as either for domestic, lawn & garden, crop irrigation, livestock, or some other purpose (with description of that purpose). In addition, you must identify specifics of the use such as number of dwellings supplied on the property, size of lawn and garden areas, types of crop and number of irrigated acres, number and type of livestock and if tanks are used, and generally period of use throughout the year. 
  8. Point of Diversion. Identify the legal description and location of the point of diversion for the groundwater diversion.
  9. Place of Use. Identify the legal description and location of the place of use where the water has been beneficially applied. 
  10. Confirm whether the place of use is the same as the point of diversion for the water right, including providing the legal description if the answer is no. 
  11. Affidavit of Ownership or Written Consent. The applicant must sign, under penalty of perjury and the laws of the State of Montana, that the foregoing information provided is correct AND ALSO that the applicant has “possessory interest in the property where the water has been put to beneficial use and [has] the exclusive property rights in the groundwater development works OR [has] attached written consent of the person owning the groundwater development works and/or written notification to the landowner pursuant to § 85-2-306(1) MCA”.

After submitting your application, the DNRC will conduct a brief compliance review to ensure that you’ve provided all required information. After determining the document is sufficient and complies with the law, the DNRC will issue a new Water Right Abstract and Water Right Number for the water right. The priority date associated with your new water right will correspond with the time of filing the Notice with the DNRC. In addition, the DNRC will create a Claim File for the Water Right, which acts as an electronic file and records-keeping document for all things associated with the water right, including your initial Form 602 and any supplemental documents or maps. 

These water rights are not included in basin-wide adjudications at the Water Court, but that doesn’t mean you shouldn’t still be diligent about your lawful use of water pursuant to your water right and any other water users that could have an impact on your ability to fulfill that water right. Further, given the nature of the 602 Water Rights and limited review by the DNRC, it is possible to find yourself adversely impacting existing water users even unknowingly and subsequently needed to manage your water use with these limitations in mind. 

Of course, the potential for conflict or confusion is almost always present when it comes to water rights in Montana, but our team at Ferguson & Coppes is here to help solve those problems if and when they do come up. Please contact our office for a free consultation with one of our experienced water law attorneys.

To learn more about how to file for a new groundwater permit in Montana (Form 600 GW), click here. To learn more about how to file for a new surface water permit in Montana (Form 600 SW), click here.

For information on the history of Montana Water Law, check out this blog post.

New Montana Water Rights: Part II

Form 600 SW: A Step-by-Step Guide

Obtaining any new Montana water right can be a daunting endeavor. Picture this: you’ve moved to Montana and you’ve found the perfect property (the one with the pristine creek meandering through) and you’ve gotten some ideas for how might put the water that appears available to good use. Of course, the water is on your property and you are in the Wild West, but how do you know if you have the legal right to use it?

As we mentioned in Part I of this series, obtaining or confirming a water right in Montana often requires a bit of research. If you’re feeling uneasy about conducting this research yourself, you’re not alone! Water rights and usage in Montana are complex and can easily turn into highly contentious disputes even among those who formerly considered themselves friends. As the questionably attributed but keenly observant saying goes, “Whiskey is for drinking, water is for fighting.” As water and natural resource attorneys, we find this saying validated more and more each day. 

Of course, at Ferguson & Coppes, our goal is always to keep this fighting to a minimum unless the situation calls for it. Therefore, we like to ensure that clients and potential clients have access to as many resources as possible in order to make the right decision for themselves and avoid future conflict over that choice. This blog is intended as a resource for those interested in obtaining a Surface Water Permit from the DNRC via Form 600 SW. Below please find a step-by-step guide for obtaining a water right to divert more than 35 gallons per minute or 10 acre-feet per year from any surface water source owned by the State of Montana. 

Step 0. Meet with DNRC to discuss the proposed project & complete Pre-Application Checklist.

This is an optional meeting provided by the DNRC and comes with the added incentive of a $200.00 reduction in the filing fee for simply attending. In order to qualify, a signed copy of the Pre-Application Checklist must be returned to the DNRC with a completed application within 6-months of the date of the pre-application meeting. The DNRC also encourages that attendees are joined by their attorney, consultant, or other individual with detailed knowledge of the proposed project. There are a number of reasons why it is recommended to have an attorney present in particular, as discussed in some detail below. If you are unsure about certain aspects of your proposed project but are still interested in taking advantage of this incentive, we recommend you contact us at Ferguson & Coppes for a free consultation with an experienced water law attorney. 

Step 1. File Form 600 SW:  Surface Water Application for Beneficial Use Permit.

In addition to paying the required filing fees and providing a valid, signed Pre-Application Checklist if applicable, the DNRC requires that the applicant submit Form 600 SW – Surface Water Application for Beneficial Use Permit. Below is an outline of the information required to satisfy the application criteria: 

  1. Obtain Required Reports & Addendum Information. This includes the following:
    • Storage Addendum:  required if you plan to store water, but not required for water tanks and cisterns. In this case you may also need to submit a Reservoir Addendum.
    • Water Marketing Addendum:  required if the purpose of the permit will be to market or sell water. 
    • Basin Closure Area Addendum:  required if your point of diversion is located in a basin closure area. If yes, you may also need to submit a Hydrogeologic Assessment Report.
    • Sage Grouse Habitat Project Review:  required if your diversion and/or place of use are located within an area designated as sage grouse habitat.
  2. Notice to Existing Users. Provide written notice of the application to each owner of an appropriation right sharing the point of diversion or means of conveyance (canal, ditch, flue, pipeline, or other constructed waterway). The DNRC’s water query system is a useful resource for researching the source and point of diversion that you intend to claim, but if you have any questions, it is often helpful to consult a water law attorney.
  3. Gather & Provide Information Regarding Use of the Water. This generally includes the following:
    • Purpose & Diversion Information:  This includes providing the name of the source (stream) from which you intend to divert, whether the use is temporary, the purpose for which you intend to use the water, your proposed means of diversion, total acreage irrigated (if applicable), the period of diversion and use, and, finally, the flow rate and volume needed. 
    • Point of Diversion:  This includes providing the legal description of the point of diversion of the water right, as well as specifics such as well depth and spring name, if applicable. 
    • Place of Use:  This includes providing the legal description of the physical location where the water will be applied for beneficial use. Geocodes can often be identified by contacting your county’s Clerk and Recorder, or by vising your local GIS website and/or the Montana Cadastral. If you’re unable to identify or unsure of the legal description that you’d like to claim as the place of use, we also recommend calling our office for a short consultation.
    • Map:  This includes providing either a USDA Aerial Photo or USGS Quad of the diversion and place of use. It is important to note on the map the section corners, township, range, and N-S direction. You should also identify the proposed point of diversion, the proposed place of use, and any conveyance facilities or routes use to convey the water. 
    • Supplemental Water Rights: This is required if there are any other water rights used on the proposed place of use for the same purpose, or if the application is for water intended to supplement contract water from a Federal Project, ditch company, or other source. 
    • Physical Surface Water Availability:  This includes confirming whether a gauging station exists on your source, that you have obtained at least one stream flow measurement from the source from each month of the requested period of diversion and providing those results (this is considered your Physical Availability addendum), any variances approved by the department and whether you have requested a variance from measurement requirements which were approved by the DNRC (on ephemeral sources only), along with applicable variance approval. 
    • Adverse Effect. To comply with Montana law, you are required to provide a detailed description of your plan to ensure that existing water rights will be satisfied during times of water shortage. 
    • Adequate Diversion Means and Operation:  This includes confirming whether you have plans to measure your diversion and use, providing a description of how the system will operate from the point of diversion to the place of use, confirming whether the system will be designed to discharge water from the project and providing a detailed description if so, and finally, providing a detailed description and diagram of the preliminary design plans and specifications for the proposed diversion and conveyance facilities (including equipment used to put the water to beneficial use). 
    • Beneficial Use:  This includes providing an explanation of the requested flow rate and volume and why it is needed for your intended purpose. If the purpose includes in-house domestic use, you must also submit the applicable Certificate of Subdivision Approval issued by the County in which the property is located. 
    • General Project Plan & Proposed Completion Period: This includes providing an estimate of how many years you expect to need to complete the project and begin applying the water for its intended use as well as explaining why this requested time is needed for the project. 
  4. Affidavit & Certification. This section requires the applicant to certify, under penalty of perjury and under the laws of the State of Montana, that the information provided in the document is correct. Although simple, this is an important part of completing the application process and it is in the applicant’s best interest to ensure that all of the information provided is correct to the best of their knowledge. For this reason, we do recommend contacting an attorney experienced with Montana water law to ensure that you’ve provided the most accurate and legally relevant information. 

Step 2:  DNRC Review for Correctness and Completeness. 

After submitting Form 600 SW to the DNRC, the DNRC will begin its review process of your application. The goal of this step is to receive a “Correct & Complete” determination by the DNRC’s compliance officer. These determinations are made within 180 days of the DNRC’s receipt of the application. At times, this will also require a field inspection by DNRC staff. During this period, the application may be amended at any time. If the DNRC notices any deficiencies in your application material, they will notify you and provide 120 days to make appropriate changes and provide any additional information. In the event that the applicant determines that they will be unable to meet the 120-day deadline, they may withdraw their application at any time, but will forfeit their initial filing fees. 

Upon determination that the application is Correct and Complete, the DNRC will notify the applicant and provide the applicant 15 days to request a meeting with the department if necessary. In addition, the DNRC will complete their required MEPA review and documentation at this time. 

Step 3:  Obtain Preliminary Determination & Meet with DNRC If Necessary.

After determining that the applicant has provided sufficient information to meet the application criteria, the DNRC will prepare a draft Preliminary Determination to either grant, deny, or grant with modifications. The DNRC will then provide this draft opinion to the applicant and again allow 15 days to request a meeting to discuss the department’s findings. If the applicant requests, the DNRC may then schedule a hearing to review the inadequate criteria. In the event that the final decision is still to deny the application, the applicant may appeal the decision to the District Court. Upon review, the District Court may reverse the DNRC’s decision. In this case, the DNRC is also afforded the opportunity to appeal Final Orders to the District Court within the 30-day appeal deadline.  

Step 4:  Public Notice & Objection Period. 

If the DNRC grants the application or grants with modifications, the applicant then moves to a public notice period in which the DNRC provides notice generally and also to surrounding landowners that the application has been received and granted. The public has 45 days to object. In the event no objections are received, the DNRC will issue a Final Order adopting the Preliminary Determination and issue a permit to the applicant pursuant to the information provided in that Preliminary Determination. 

When an objection is received, the DNRC will determine whether the objections are valid and, if so, will schedule a hearing within 90 days of the objection deadline. After the hearing and the record is closed, a Final Order must be issued within 90 days. In the even that objections are withdrawn, the hearing will be dismissed and a Final Order issued. If not, a Hearing Examiner will prepare a Final Order to grant with or without stipulations and may include a private agreement. After DNRC review, a Final Order granting the application will be issued.

Of course, the process for filing any new Montana water right is complicated with many opportunities to go south. Therefore, it is always recommended to consult with an experienced water law attorney before beginning the process. Contact our office for a free consultation with one of our experienced water law attorneys.

For information on the history of Montana Water Law, check out this blog post.

For information on filing Form 600: Groundwater Application for Beneficial Use Permit, click here.

For information on filing Form 602: Notice of Completion of Groundwater Development, click here.

New Montana Water Rights: Part I

Form 600 GW: A Step-by-Step Guide

If you’ve done your homework on Montana Water Rights, you may already know that to obtain the right to use water in Montana, you’ll need to file paperwork and pay fees to the Department of Natural Resources and Conservation. That said, it’s always worth reviewing your real estate paperwork first to see whether any water rights already exist for use on your property. Another way to research this is through the DNRC’s water right query system for your water right information. If you think this might be the case, it’s also probably worth contacting a water law attorney to review the water right, file any relevant ownership updates or other necessary documents.

On the other hand, if you’re filing for a new water right, for instance as part of a new subdivision or for a hydro-electric project, you’ll likely need to go through the DNRC’s process to obtain a legally enforceable water right: a permitted groundwater diversion for more than 35 gallons per minute or 10 acre-feet per year. Below is a step-by-step guide for filing one of the more common water rights with the DNRC. For additional information, you can also visit the DNRC’s website here

Step 0:  Meet with DNRC to discuss the proposed project & complete Pre-Application Checklist.

This is an optional meeting, but the DNRC offers a $200.00 reduction in the permit filing fee for attending. In order to qualify, a signed copy of the Pre-Application Checklist must be turned into the DNRC with a completed application at least 6-months from the date of the pre-application meeting. The DNRC also encourages that attendees are joined by their attorney, consultant, or other individual with detailed knowledge of the proposed project and water rights. There are a number of reasons why it is especially recommended to have an attorney present, as discussed in some detail below. If you are unsure about certain aspects of your proposed project but are still interested in taking advantage of this incentive, we recommend you contact us at Ferguson & Coppes for a free consultation with an experienced water law attorney. 

Step 1:  File Form 600 GW:  Groundwater Application for Beneficial Use Permit

This form is used for water rights that divert more than 35 gallons per minute or 10 acre-feet per year. Below is a step-by-step guide for researching and compiling the necessary information to claim a Groundwater Permit in Montana:

  • Obtain Required Reports & Addendum Information. This includes the following:
    • Aquifer Testing Report:  required for all groundwater well applications.
    • Storage Addendum:  required if you plan to store water, but not required for water tanks and cisterns. In this case you may also need to submit a Reservoir Addendum.
    • Water Marketing Addendum:  required if the purpose of the permit will be to market or sell water. 
    • Basin Closure Area Addendum:  required if your point of diversion is located in a basin closure area. If yes, you may also need to submit a Hydrogeologic Assessment Report.
    • South Pine Controlled Groundwater Area Addendum:  required if your diversion is located within the South Pine Controlled Groundwater Area.
    • Yellowstone Controlled Groundwater Area Addendum:  required if your diversion is located within the Yellowstone Controlled Groundwater Area.
    • Sage Grouse Habitat Project Review:  required if your diversion and/or place of use are located within an area designated as sage grouse habitat.
  • Notice to Senior Users. Provide written notice of the application to each owner of an appropriation right sharing the point of diversion or means of conveyance (canal, ditch, flue, pipeline, or other constructed waterway). The DNRC’s water query system is a useful resource for researching the source and point of diversion that you intend to claim, but if you have any questions it is often helpful to consult a water law attorney.
  • Gather & Provide Information Regarding Use of the Water. This generally includes the following:
    • Purpose & Diversion Information:  This includes providing the purpose for which you intend to use the water, your proposed means of diversion, total acreage irrigated (if applicable), the period of diversion and use, and, finally, the flow rate and volume needed. 
    • Point of Diversion:  This includes providing the legal description of the point of diversion of the water right, as well as specifics such as well depth and spring name, if applicable. 
    • Place of Use:  This includes providing the legal description of the physical location where the water will be applied for beneficial use. Geocodes can often be identified by contacting your county’s Clerk and Recorder, or by vising your local GIS website and/or the Montana Cadastral. If you’re unable to identify or unsure of the legal description that you’d like to claim as the place of use, we also recommend contacting our office for a short consultation.
    • Map:  This includes providing either a USDA Aerial Photo or USGS Quad of the diversion and place of use. It is important to note on the map the section corners, township, range, and N-S direction. You should also identify the proposed point of diversion, the proposed place of use, and any conveyance facilities or routes use to convey the water. 
    • Supplemental Water Rights: This is required if there are any other water rights used on the proposed place of use for the same purpose, or if the application is for water intended to supplement contract water from a Federal Project, ditch company, or other source. 
    • Physical Groundwater Availability:  As mentioned above, you will be required to provide an Aquifer Testing Report, Form 633, or otherwise provide proof of a variance from the DNRC. If you are applying to use water in a closed basin, you are also required to provide a Hydrogeologic Assessment Report Addendum pursuant to § 85-2-360 MCA
    • Adverse Effect: To comply with Montana law, you are required to provide a detailed description of your plan to ensure that existing water rights will be satisfied during times of water shortage. 
    • Adequate Diversion Means and Operation:  This includes confirming whether you have plans to measure your diversion and use, providing a description of how the system will operate from the point of diversion to the place of use, confirming whether the system will be designed to discharge water from the project and providing a detailed description if so, and finally, providing a detailed description and diagram of the preliminary design plans and specifications for the proposed diversion and conveyance facilities (including equipment used to put the water to beneficial use). 
    • Beneficial Use:  This includes providing an explanation of the requested flow rate and volume and why it is needed for your intended purpose. If the purpose includes in-house domestic use, you must also submit the applicable Certificate of Subdivision Approval issued by the County in which the property is located. 
    • General Project Plan & Proposed Completion Period: This includes providing an estimate of how many years you expect to need to complete the project and begin applying the water for its intended use as well as explaining why this requested time is needed for the project. 
  • Affidavit & Certification. This section requires the applicant to certify, under penalty of perjury and under the laws of the State of Montana, that the information provided in the document is correct. Although simple, this is an important part of completing the application process and it is in the applicant’s best interest to ensure that all of the information provided is correct to the best of their knowledge. For this reason, we do recommend contacting an attorney experienced with Montana water law to ensure that you’ve provided the most accurate and legally relevant information. 

Step 2:  DNRC Review for Correctness and Completeness. 

After submitting Form 600 GW to the DNRC, the DNRC will begin its review process of your application. The goal of this step is to receive a “Correct & Complete” determination by the DNRC’s compliance officer. These determinations are made within 180 days of the DNRC’s receipt of the application. This step will also require a field inspection by DNRC staff. During this period, the application may be amended at any time. If the DNRC notices any deficiencies in your application material, they will notify you and provide 120 days to make appropriate changes and provide any additional information. In the event that the applicant determines that they will be unable to meet the 120-day deadline, they may withdraw their application at any time, but will forfeit their initial filing fees. 

Upon determination that the application is Correct and Complete, the DNRC will notify the applicant and provide the applicant 15 days to request a meeting with the department if the applicant wishes to further discuss elements of the application and future permit. In addition, the DNRC will complete their required MEPA review and documentation at this time. 

Step 3:  Obtain Preliminary Determination & Meet with DNRC If Necessary.

After determining that the applicant has provided sufficient information to meet the application criteria, the DNRC will prepare a draft Preliminary Determination to either grant, deny, or grant with modifications. The DNRC will then provide this draft opinion to the applicant and again allow 15 days to request a meeting to discuss the department’s findings. If the applicant requests, the DNRC may then schedule a hearing to review the inadequate criteria. In the event that the final decision is still to deny the application, the applicant may appeal the decision to the District Court. Upon review, the District Court may reverse the DNRC’s decision. In this case, the DNRC is also afforded the opportunity to appeal Final Orders to the District Court within the 30-day appeal deadline.  

Step 4:  Public Notice & Objection Period. 

If the DNRC grants the application or grants with modifications, the applicant then moves to a public notice period in which the DNRC provides notice generally and also to surrounding landowners that the application has been received and granted. The public has 45 days to object. In the event no objections are received, the DNRC will issue a Final Order adopting the Preliminary Determination and issue a permit to the applicant pursuant to the information provided in that Preliminary Determination. 

When an objection is received, the DNRC will determine whether the objections are valid and, if so, will schedule a hearing within 90 days of the objection deadline. After the hearing and the record is closed, a Final Order must be issued within 90 days. In the even that objections are withdrawn, the hearing will be dismissed and a Final Order issued. If not, a Hearing Examiner will prepare a Final Order to grant with or without stipulations and may include a private agreement. After DNRC review, a Final Order granting the application will be issued.

Of course, the process for filing any new Montana water right is complicated with many opportunities to go south. Therefore, it is always recommended to consult with an experienced water law attorney before beginning the process. Call our office at 406.532.2664 for a free consultation with one of our experienced water law attorneys or request a consultation here.

To learn more about how to file for a new surface water permit in Montana (Form 600 SW), click here. To learn more about how to file for a notice of completion of groundwater development (Form 602), click here.

For information on the history of Montana Water Law, check out this blog post.

What is Montana Water Law?

As Montana attorneys specializing in natural resource and water law, at Ferguson & Coppes we are often asked: “What is Montana water law? How do Montana water rights work?” In fact, Montana has one of the more sophisticated legal systems for administering water in the US, among other states like California, Colorado and Hawaii, thanks in large part to Montana’s 1972 Constitution.

The Journey from Riparian to Prior Appropriation

It may seem obvious to those familiar—especially if you’ve grown up irrigating or “changing the water” for your family’s farming operation—but access to clean water has quickly evolved into the most valuable property interest one can possess. The “ownership” of water is treated differently depending on where you are located and does not actually mean that one owns the water in the way we traditionally understand property rights. Rather, water rights are “usufructuary” rights meaning that, when one owns a water right, it is a right to “use” a certain amount of water instead of the right to “own” the water itself. Each state applies their own set of laws and regulations to its administration and use. Except for the Clean Water Act, which regulates for pollution and quality of the Waters of the United States, there is limited regulation of water beyond each state’s natural resources agency or other applicable state governance. The states’ administration is framed and limited by the Public Trust Doctrine, which provides that each state holds their natural resources in trust for the public. In effect, the management responsibility for most of the available freshwater resources within the United States falls in the hands of each state. Each state is therefore entrusted to manage and administer this invaluable resource according to their own laws and regulations and in a way that protects the public’s ability to perpetually benefit from its existence.

The result is an incredibly diverse and legally complex arrangement of water rights spanning the continental US, but typically following two major trends or some hybrid. In the Eastern United States, where the American legal system was simultaneously developing, water was–and largely still is–managed according to a Riparian theory. This doctrine is elementary on its face:  those who own the land bordering surface water sources also own their respective share of the use of available water. This is then shared according to each property owner’s pro-rata portion of that water supply at any given time or based on a reasonableness standard. (Of course, countless variations now exist even within the Riparian category).

Seemed simple enough. 

But, then again, creating new law is rarely that simple.  

‘Among the customs generally adopted in the (mining) camps was the first to divert a stream to use his rocker or pan had the first right to that amount of water.’

As homesteaders travelled West, and mining and agricultural enterprises expanded, the difference in the landscape and natural resource availability became obvious. This was especially true of water. In fact, the difference in availability was stark. Before this “destiny” manifested, water users were accustomed to usage in the East, which benefitted from densely located and abundant fresh water sources. Unfortunately, the Arid West wasn’t so reliable, as homesteaders and miners quickly came to realize. Paired with rising populations and the general lawlessness of the American West at that time, it was clear that some form of prioritization and organization of the available water was necessary.

In response, a new Western doctrine arose:  Prior Appropriation. More specifically, the “birth of the prior appropriation system of distributing water has its roots in the California gold rush[:] ‘Among the customs generally adopted in the (mining) camps was the first to divert a stream to use his rocker or pan had the first right to that amount of water.’” According to this new legal interest, the first in time was simply the first in right. In other words, those who first arrive to use the water are the lawful priority user of whatever amount of water they first rely on and put to beneficial use.

If a new homesteader establishes a water diversion upstream to a prior user or “appropriator”, the junior appropriator must ensure the original use of the senior’s water remains consistent, regardless of the junior’s additional use. Likewise, if you divert water downstream of an existing upstream user, you may not always experience or be legally entitled to your full expectation of water in the late summer months when water is naturally less available, if at all. If your water doesn’t appear when expected as the senior appropriator, you make “call” on your neighboring junior users to cease their own use in order to fulfill what you were legally entitled to use. 

In the West, these arrangements persisted and found themselves solidified in law. Montana, newly ratified as a territory in 1864, found itself uniquely situated to address the looming legal questions surrounding Western water use given its abundant water and other natural resources.    

Historic Water Rights in Montana

Before any bells or whistles, Montana abided by a similar water administration scheme as that of their western sister states. In other words, general legal processes existed to allow individuals to claim their water right, particularly stating the first date their water was beneficially applied to their property, i.e., their priority date. This allowed homesteaders and others to record and establish legally enforceable priority dates against surrounding and incoming junior users. Typically, this was done by simply filing a statement of usage and other details of the claim at your nearest courthouse. As one can imagine, the Montana territory at the time was sparsely populated and it was not uncommon that early homesteaders were located hundreds of miles from the nearest courthouse. What’s more, surveying of the Montana territory didn’t begin until after 1865 meaning that early homesteaders often head to rely on other landmarks or adjacent landowners in order to describe the property in question. As a result, these old records are often riddled with inconsistencies and other oddities, albeit they are often still relied on by Montana courts as evidence of historic water use.

This system, in its various forms, worked for more than a century until it became apparent that water was continuing to be “over-appropriated,” i.e., more was legally claimed than physically available. The uses claimed, and continuing, were threatening to overwhelm even Montana’s abundant supply without additional regulatory involvement, for better or worse. As early as the late 1800’s, the few Montana courts in existence had been attempting to resolve the countless disputes among early water users and identifying water sources that were dry as early as July as a result of the increased irrigation and other uses. Similarly, these historic decrees are often relied on today by Montana courts to determine and further corroborate these historic uses.

In response, the Montana Legislature promulgated the Water Use Act of 1973. This Act, among other things, provided parameters and notice to Montana water users to file a Statement of Claim for any water uses existing prior to 1973. Property owners claiming water rights after this date (with many caveats, of course) would instead be required to obtain a new water permit from the Montana Department of Natural Resources and Conservation (DNRC). Further, if anyone sought to change certain material elements of their historic water right, they would be sent to the DNRC. In this way, Montana conveniently split water rights into two categories:  Pre- and Post-1973 Water Rights. Pre-1973 water rights filed pursuant to the Water Use Act fall within the Montana Water Court jurisdiction, while the issuance of post-’73 rights falls under the Montana DNRC’s jurisdiction. You can learn more about the Montana DNRC’s role in administering water post-1973 water rights here.

Montana Water Court and Future of Water Law

You may have been hearing more news about the Montana Water Court recently, and for good reason. The Montana Water Court was established as part of the 1973 Water Use Act and officially opened its doors to Montana in 1979. Currently the Water Court is “untangling 219,000 water right claims to determine who is ‘first in time.’ Like seven other Western states, the judicial branch has taken the lead in this process, but [the DNRC] plays a major role.” (A Short History of the Water Court, footnotes omitted). 

With the same judicial power as any District Court in Montana, the Water Court specializes in resolving water right controversies arising from pre-1973 water rights. Primarily, the Water Court is focused on reviewing claims and objections basin-by-basin and issuing final decrees on the historic water rights claimed within. Although this has been a long and arduous process, reports from Water Court judges at the 2023 Water Law Section meeting indicate that they are progressing steadily through claims and anticipate issuing final basin-wide decrees in the next five or so years. 

Certification of District Court Matters to the Water Court

In addition to resolving and issuing these basin-wide decrees, it is common for attorneys in Montana to certify certain questions arising in the District Court for the Water Court’s review and judgment. This has become a useful tool in Montana law insofar as District Courts are already commonly occupied by criminal and other more common civil disputes. Water law is considered a more specialized field, similar to Bankruptcy, and is not typically on the top of a District Court judge’s mind given their many responsibilities. Therefore, when a dispute involves a complex water right issue we often proceed by requesting that the discreet water right question(s) be certified to the Water Court. Upon a successful certification and Order from the District Court judge, the Water Court will assume jurisdiction over these questions and begin its own civil litigation process before holding a hearing on the matter(s). After the Water Court has issued its Final Order, it is common for the matter to be resumed in District Court pursuant to and with the Water Court’s findings in mind or otherwise proceed on an appeal track to the Montana Supreme Court before being sent back to the District Court for determination on the unresolved matters. In this way, the Montana judicial system is engineered to ensure that legal questions surrounding water rights are given proper review under specialized and experienced judges, resulting not only in more just results but also more efficient process for all parties. We always recommend that you speak with an experienced water law attorney if you think you have a potential dispute involving a water right, especially if the right arises from a pre-1973 water right.

The initial designs for the Water Court assumed that at some point in the future, the Water Court would likely become moot. The idea at the time was that once all basins had been issued a final decree and all of the pre-1973 water rights had been settled, the Water Court would no longer have any use. Perhaps idealistically, lawmakers at that time structured the law so that any water rights claimed after 1973 would be applied to and issued by the Department of Natural Resources and Conservation. In hindsight, lawmakers not only underestimated the complexity and contentiousness of simply resolving the historical rights, but also may have miscalculated the legal complications that would arise while simultaneously issuing new water rights to those using and claiming water after 1973.

Therefore, it was hardly a surprise for those involved when it became clear that streamlining Montana’s water adjudication and permitting process would not be quite so easy. In fact, it has turned into one of the most complex fields of law arising from the American West. 

What’s Next?

Today, lawmakers continue to debate the future of Montana Water law, and particularly the Montana Water Court. For those of us who have come to depend on the specialization and institutional knowledge provided by judges such as Chief Water Judge McElyea and Associate Water Judge Brown, and all those who work within the Montana Water Court, the value provided to Montana water right holders is undeniable. Based on the trajectory and growth of Montana in the last few years the need to maintain this legal resource only seems more crucial to the future of Montana. At Ferguson and Coppes, we at least can attest that there is no shortage of legal controversy arising out of Montana’s water right system. 

So, back to our first question: what is Montana water law? At Ferguson & Coppes, we see Montana water law as a unique and exciting field of legal practice that has an important role to play in Montana’s future. Even so, we understand that navigating water rights and the legal system can be daunting and we make it our goal to help you through that process. If you think you may have a claim to an existing water right or are interested in filing for a new water right, contact our office for a free consultation with one of our experienced water law attorneys.

See below for more resources:

Check out our blog post, States and Streambeds (coming soon), for more information on the intersection of private use and state ownership of water.

To learn more about how to file for a new water right in Montana, keep an eye out for our blog series on filing for a new water right, Part I, Part II, & Part III.