U.S. state
In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sove ...
of
Montana
Montana () is a state in the Mountain West division of the Western United States. It is bordered by Idaho to the west, North Dakota and South Dakota to the east, Wyoming to the south, and the Canadian provinces of Alberta, British Columb ...
which has jurisdiction over the adjudication of
water rights
Water right in water law refers to the right of a user to use water from a water source, e.g., a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentiou ...
. The filing, verification, recording, and enforcement of water rights in the
Montana Territory
The Territory of Montana was an organized incorporated territory of the United States that existed from May 26, 1864, until November 8, 1889, when it was admitted as the 41st state in the Union as the state of Montana.
Original boundaries
...
and, later, the state of Montana were considered highly inadequate until 1972, when a new state constitution required a more robust, highly centralized water rights legal system. Implementation of this system led to the establishment of the Water Court in 1979, after six years of mixed success with an administrative solution. The Water Court consists of a Chief Water Judge, Associate Water Judge, and four District Water Judges, but most work is handled by
special master
In the law of the United States, a special master is generally a subordinate official appointed by a judge to ensure judicial orders are followed, or in the alternative, to hear evidence on behalf of the judge and make recommendations to the jud ...
s ("water masters"). The process of identifying, verifying, and adjudicating water rights is a complex one, and budgetary and personnel issues have slowed the work at times. Appeals from the Water Court are made directly to the
Montana Supreme Court
The Montana Supreme Court is the highest court of the state court system in the U.S. state of Montana. It is established and its powers defined by Article VII of the 1972 Montana Constitution. It is primarily an appellate court which reviews ...
.
The state finished verifying all water claims in 2015, and the Water Court will finish issuing final decrees in all hydrological basins by 2020. The Water Court's work is expect to end in 2028, although there is ongoing debate about termination in the state legislature. The state has not engaged in a process which includes all water claimants, leading the state to negotiate compacts with tribal governments and federal agencies.
History of water rights in Montana
Territorial water rights
The
Montana Territory
The Territory of Montana was an organized incorporated territory of the United States that existed from May 26, 1864, until November 8, 1889, when it was admitted as the 41st state in the Union as the state of Montana.
Original boundaries
...
was created on May 26, 1864. In 1885, the Montana territorial legislature enacted legislation establishing the first system of water rights for surface water. Under the law, surface water could only be diverted if it was done so for "beneficial use". An individual could establish their water rights merely by posting a notice at the point of diversion, and filing a letter with the county clerk and county recorder. This became known as a "filed right". Filed rights were subject to extensive abuse, as filers routinely exaggerated the amount of water taken and there was no means of challenging the claim of beneficial use. The law also recognized another means of securing surface water rights, which became known as "use rights". Use rights required no filing or posting, merely the appropriation of water and its application for a beneficial use. Use rights were also regularly abused, as there was no record of them and deceit about the date and amount of appropriation was widespread. By 1974, between 60 and 70 percent of all water rights in Montana were use rights.
The 1885 law also gave territorial officials the authority to engage in ''
inter se
''Inter se'' (also styled as ''inter sese'') is a Legal Latin phrase that means " ong or between themselves"., ''Inter se'' 819 (6th Ed.). The phrase is "used to distinguish rights or duties between two or more parties from their rights or duties ...
'' ("including all parties") proceedings regarding a given source of surface water whenever conflict emerged. The official could establish who had water rights, how much water they were entitled to, and which rights had priority. This authority was never exercised.
Decentralized record-keeping created a huge number of problems. Watersheds routinely became "oversubscribed" (that is, water users claimed the right to more water than was in the stream). The expansion in the number of counties in the state led to the mismanagement of water rights records as county archives were split up, and many records were lost. Other records were lost when county courthouse suffered fires.
Water rights under the 1889 constitution
Montana became a state on November 8, 1889. Article III, §15 of the 1889 constitution provided that "The use of all water now appropriated...shall held to be a public use." Although a number of attempts were made over the next 90 years to create a centralized water rights system, beginning in 1903, voters in the state feared the creation of a large state bureaucracy and the legislature defeated every attempt.
In 1908, the Supreme Court of the United States held in that Native American tribes had reserved "adequate water to satisfy the purposes for which the Reservation was created". Moreover, it was the duty of the U.S. federal government to protect these water rights. This created what are known as "''Winters'' rights", of federally-reserved Indian water rights. The case was of particular importance to Montana because it involved the
Fort Belknap Indian Reservation
The Fort Belknap Indian Reservation ( ats, ’ak3ɔ́ɔyɔ́ɔ, lit=the fence or ats, ’ɔ’ɔ́ɔ́ɔ́nííítaan’ɔ, lit=Gros Ventre tribe, label=none) is shared by two Native American tribes, the A'aninin (Gros Ventre) and the Nakoda ...
in the north-central part of the state.
In 1921, the
Montana Legislature
The Montana State Legislature is the state legislature of the U.S. state of Montana. It is composed of the 100-member Montana House of Representatives and the 50-member Montana Senate.
The Montana Constitution dictates that the legislature meet ...
adopted a new surface water rights law. This legislation recognized that some streams might be "fully adjudicated"; in other words, all the water may be appropriated by existing users. Any new individual wishing to appropriate water from a fully adjudicated source had to obtain approval from a Montana District Court first. As no stream in the state was ever fully adjudicated, this process was never activated. Moreover, decentralized and haphazard record-keeping as well as ongoing utilization of use rights meant that it was almost impossible to determine if a stream was fully adjudicated, even if all water rights on the source were allocated. Indeed, it is possible that water rights were established on fully adjudicated sources. The Montana Supreme Court also recognized the "first in time, first in right" doctrine of water rights in 1921 in
''Winters'' rights were further defined in 1939, when the U.S. Supreme Court held in that Native American water rights existed independent of state law. This case had arisen on the
Crow Indian Reservation
The Crow Indian Reservation is the homeland of the Crow Tribe. Established 1868, the reservation is located in parts of Big Horn, Yellowstone, and Treasure counties in southern Montana in the United States. The Crow Tribe has an enrolled member ...
in south-central Montana, and involved land now owned by non-tribal members. The federal
Ninth Circuit Court of Appeals
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District ...
extended ''Powers'' in , when it held that title to water rights reserved to tribes could be disposed of only by Congress. This case involved the
Flathead Indian Reservation
The Flathead Indian Reservation, located in western Montana on the Flathead River, is home to the Bitterroot Salish, Kootenai, and Pend d'Oreilles tribes – also known as the
Confederated Salish and Kootenai Tribes of the Flathead Nation. The ...
in the state's northwestern corner. The same year as ''Winters'', the Montana Legislature declared it was the policy of the state to fully adjudicate all the waters of the state as soon as possible. But no action was taken.
The state legislature took a step toward rectifying the situation in 1947. The legislature enacted a statute which gave the state engineer the authority to adjudicate water rights and settle disputes. However, there is no evidence that this discretion was ever exercised. A second step was taken in 1961 when the legislature passed the state's first water rights act, and barred any new use right claims after January 1, 1962.
In 1952, Congress enacted the McCarran Amendment, which permitted the federal government to waive its
sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
over water rights. This waiver could be granted only if the state water rights proceeding was ''inter se''.
The Montana state legislature enacted a groundwater rights claiming law in 1961. The law mimicked the 1885 filing right system. Because the 1961 legislation suffered from the same faults as the 1885 legislation, water rights established under the 1961 groundwater law proved just as difficult to verify, examine, establish, and enforce.
Montana voters approved the creation of a state constitutional convention in 1971 to update and revise the 1889 constitution. By this time, water rights in the state were almost impossible to verify or enforce. The
Montana Supreme Court
The Montana Supreme Court is the highest court of the state court system in the U.S. state of Montana. It is established and its powers defined by Article VII of the 1972 Montana Constitution. It is primarily an appellate court which reviews ...
had held in that ''inter se'' proceedings were not required when adjudicating water rights. This meant that even when the Montana Supreme Court ruled on a water rights conflict, there often many appropriators not bound by the decision. Water rights records were dispersed (sometimes across many
counties
A county is a geographic region of a country used for administrative or other purposesChambers Dictionary, L. Brookes (ed.), 2005, Chambers Harrap Publishers Ltd, Edinburgh in certain modern nations. The term is derived from the Old French ...
), grossly inaccurate, and incomplete. Many water rights laid claims to amounts of water that could never be used, calling into question the legality of the claim, and purchasers of water could never be sure of obtaining the amount of water they had bought.
Water rights under the 1972 constitution
In 1972, Montana voters adopted a new constitution which greatly expanded the state's treatment of water and water rights. Article IX, Section 3, Subsection 1 recognized and confirmed all existing water rights. Subsection 2 reiterated the 1889 constitution's wording, with only minor and non-substantive changes. Subsection 3, however, established state ownership of all waters (atmospheric and ground, as well as surface) within the state, declared them available solely for the use of the people, and declared that appropriation of water must be for beneficial purposes. Subsection 4 required the state to administer, control, and regulate water rights, and to establish a centralized record of such rights. At no time did the 1971 constitutional convention recognize the control over Native American water rights exercised by the federal government under ''Winters'' and ''Powers''.
In 1973, pursuant to the authority provided in the new constitution, the Montana Legislature enacted the Montana Water Use Act (MWUA). The goal of the MWUA was to identify every
groundwater
Groundwater is the water present beneath Earth's surface in rock and soil pore spaces and in the fractures of rock formations. About 30 percent of all readily available freshwater in the world is groundwater. A unit of rock or an unconsolidated ...
source and surface watershed in the state, and to adjudicate every water claim on these sources. The law required that anyone with a water right must file that claim with the state within one year. The Montana Department of Natural Resources and Conservation (DNRC) was to administer the MWUA. The DNRC identified five watersheds where water rights most urgently needed adjudication: The Armells Creek,
Bighorn River
The Bighorn River is a tributary of the Yellowstone, approximately long, in the states of Wyoming and Montana in the western United States. The river was named in 1805 by fur trader François Larocque for the bighorn sheep he saw along its ba ...
, Powder River, Rosebud Creek, and Tongue River basins. The scope of work soon proved overwhelming. In late 1974, based on its preliminary efforts in these five areas, the DNRC estimated there were more than 500,000 water rights claims in the entire state. The lack of records, overclaiming of water, and amount of conflict over water was so bad, to process all water rights claims would take 100 years.
In 1974, the DNRC proposed legislation to amend the MWUA to require a Montana District Court to commence the adjudication proceeding, rather than the DNRC. The agency believed that a judicial, rather than purely administrative, proceeding would avoid lengthy litigation.
Creating the Water Court
In an attempt to pre-empt the impending change to state law, the Tsehéstáno (also known as the
Northern Cheyenne
The Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation ( chy, Tsėhéstáno; formerly named the Tongue River) is the federally recognized Northern Cheyenne tribe. Located in southeastern Montana, the reservation is approximately ...
) brought suit in the United States District Court for the District of Montana in January 1975 to secure their ''Winter'' rights. The federal government joined their suit in March, and initiated a separate suit on behalf of the Apsáalooke (also known as the
Crow Nation
The Crow, whose autonym is Apsáalooke (), also spelled Absaroka, are Native Americans living primarily in southern Montana. Today, the Crow people have a federally recognized tribe, the Crow Tribe of Montana, with an Indian reservation loca ...
) in April. The state legislature amended the MWUA according to the recommendation of the DNRC during its spring 1975 session. The state of Montana then filed in Montana District Court in July to begin adjudication of water rights in watersheds affecting both the Tsehéstáno and Apsáalooke. The Tsehéstáno and Apsáalooke lawsuits were consolidated by the federal court, but then stayed because of the conflict between the concurrent state and federal actions. A separate case, , also involving concurrent state and federal lawsuits over water rights, was moving to the U.S. Supreme Court. The high court subsequently created a new ''Colorado River'' doctrine of abstention. The U.S. Supreme Court "made clear that absent a proper McCarran waiver of tribal sovereign immunity a Tribe cannot be joined in a state court water adjudication." The decision also extended the McCarran Amendment's waiver to Native American water rights as well. The Supreme Court's decision in ''Colorado River'' essentially ended the two federal and one state Montana water rights cases.
The Supreme Court's ruling in ''Colorado River'' motivated the Montana Legislature to enact critical amendments to the MWUA in 1979. In 1977, the DNRC began pressing for a general water adjudication law. The agency proposed that anyone who failed to register their water claim with the state would lose that claim. It recommended against the creation of a water court, and instead argued for an administrative process overseen by the agency itself. The subsequent adjudication would be ''inter se'', to meet the requirements of the McCarran Act. Rather than act on the DNRC's proposals, the state legislature established a study committee to make recommendations to the legislature at its next session (to be held in 1979). On April 4, 1979, the legislature voted to include tribal and federal as part of the state's adjudication process. The following day, the federal governments filed four lawsuits in the U.S. District Court seeking to revive the two prior lawsuits as well as initiate four others to protect the water rights of the tribes in Montana. Despite the action, the Montana Legislature enacted wide-ranging amendments to the MWUA which created a state Water Court.
Montana Water Court
Legislative authority of 1979
The 1979 amendments to the MWUA established a Water Court equivalent to Montana District Courts. The Water Court, whose headquarters were in Bozeman, was given jurisdiction over all water rights claims and adjudications in the state. There was only a single Water Court in the state, but it had four jurisdictions, based on the four largest watersheds within the state boundaries:
# Yellowstone River Basin Division—This division covers the
Yellowstone River
The Yellowstone River is a tributary of the Missouri River, approximately long, in the Western United States. Considered the principal tributary of upper Missouri, via its own tributaries it drains an area with headwaters across the mountains a ...
and Little Missouri River watersheds, as well as all water in Carter County.
# Lower Missouri River Basin Division—This division covers areas drained by the Missouri River below the mouth of the
Marias River
The Marias River is a tributary of the Missouri River, approximately 210 mi (338 km) long, in the U.S. state of Montana. It is formed in Glacier County, in northwestern Montana, by the confluence of the Cut Bank Creek and the Two Med ...
, as well as all water in
Glacier
A glacier (; ) is a persistent body of dense ice that is constantly moving under its own weight. A glacier forms where the accumulation of snow exceeds its ablation over many years, often centuries. It acquires distinguishing features, such as ...
and Sheridan counties.
# Upper Missouri River Basin Division—This division covers areas drained by the Missouri River to the mouth of the Marias River.
# Clark Fork River Basin Division—This division covers areas drained by the Clark Fork River and
Kootenay River
The Kootenay or Kootenai river is a major river in the Northwest Plateau, in southeastern British Columbia, Canada, and northern Montana and Idaho in the United States. It is one of the uppermost major tributary, tributaries of the Columbia Ri ...
, as well as all water in Lincoln County.
The four judges of the Water Court were to be appointed from among the existing Montana District Court judges by the
Governor of Montana
The governor of Montana is the head of government of MontanaMontana Constitution, Article VI, Section 4. and the commander-in-chief of the state's military forces. The governor has a duty to enforce state laws, the power to either approve or veto ...
. The legislature made retired district court judges eligible in 1981. Water judge candidates were proposed by a committee of Montana District Court judges in those judicial districts encompassed by the division. Each judge served an initial six-year term. After June 30, 1985, terms were four years. The MWUA amendments permitted (but did not require) the Montana Supreme Court to also appoint a Chief Judge. The Chief Judge is selected by the Chief Justice of the Montana Supreme Court from a list developed by the Montana Judicial Nomination Committee.
The 1979 amendments to the MWUA provide for the appointment of
special master
In the law of the United States, a special master is generally a subordinate official appointed by a judge to ensure judicial orders are followed, or in the alternative, to hear evidence on behalf of the judge and make recommendations to the jud ...
s (known as "water masters" under the law). Water masters must have extensive experience with water law, water rights, and water use. Water masters apply water right claims examination rules adopted by the Montana Supreme Court, and must follow the Montana Rules of Civil Procedure.
Water masters examine nearly all the water claims, and make almost all the initial water allocation determinations. These are then reviewed by the Chief Water Judge. Only very rarely does a District Water Judge hear a case.
Procedures
In June 1979, the Montana Supreme Court ordered that all water rights claims be filed by April 30, 1982. This resulted in roughly 219,000 water rights claims in 85 sub-basins in the state of Montana. The legislature enacted a law in 1995 allowing approximately 4,500 additional claims to be filed, although these claims may be considered only after "on time" water claims are adjudicated.
The first step in adjudicating water rights claims is to have the claim verified in county or state records and (when needed) examined in the field by the DNRC. The claims are then turned over to the Water Court, which assigns a water master. The water master makes a preliminary decree (also known as a "temporary preliminary decree"), in which "first in time, first in line" rights are assigned and water allocations established. The water master must issue a notice advising the public that a preliminary decree has been made, and advertise this notice. Anyone may object to a claim. The special master then decides these claims in a two-party adversarial hearing. Once all objections have been resolved, a revised decree is issued and public notice given. Public hearings follow, in which the special master will accept evidence and take testimony. The special master will incorporate the public hearing into a final decree, which is recommended to the Chief Water Judge. The Water Court then holds a trial, almost always overseen by the Chief Water Judge, at the end of which objections to the rulings of the water master may be heard and the final decree is rendered. The Water Court has never held a trial in which all parties come together ''inter se''.
If two water appropriators come into conflict during this process, they may submit their dispute to the nearest Montana District Court. The District Court will then refer it to the Water Court, which will issue a decree for temporary relief pending final adjudication.
All water rights claims will also be filed in a centralized repository, with county-level claims filed locally in each county courthouse. The DNRC continues to process new applications for water rights, and occasionally makes changes to existing rights claims. To file a claim for surface water requires the submission of an application to the DNRC. No permit is needed to use groundwater so long as no more than of water per minute are used, and less than per year are withdrawn. Groundwater consumption over these limits requires a permit from the DNRC.
Appeals
Final decrees of the Montana Water Court may be appealed to the Montana Supreme Court, but only if the claimant had objected to the preliminary decree or if the claimant's water rights were altered after the issuance of the preliminary decree. All water rights not addressed in the final decree are considered forfeit under state law.
History of the Water Court
Judge Lessley tenure
About 219,000 water rights claims in 85 sub-basins were filed before the close of the filing period in 1982. Every year from 1979 to 1997, the Chief Water Judge's office handled between 2,000 and 3,000 water claims. Water masters handled the remainder of the claims. Although verification of water claims can be swift, resolution of objections to the preliminary decree can last a decade or more. Roughly 40 to 50 percent of water rights claims have a problem with verification, priority, or an objection. For example, the Gallatin River basin preliminary decree was issued on September 18, 1985. There were 5,699 water rights claims in the basin, and 1,600 objections to the preliminary decree. Those objections were not resolved until 1997.
William Wallace Lessley was appointed the first Chief Judge of the Water Court in 1979. He had served as judge of the 18th Judicial District since 1949. He served as a substitute judge on the Montana Supreme Court more than 50 times and wrote more than 25 majority opinions between 1949 and 1982. In 1982, his judicial peers elected him Associate Water Judge for the Upper Missouri River Basin Division. He died of a stroke in office on March 29, 1990, at the age of 82.
Judge Loble tenure
C. Bruce Loble was appointed Chief Water Judge in 1990 to serve the remaining three years of Lessley's term. During Loble's tenure, the Montana Legislature began cutting the budget of the DNRC and Water Court, which dramatically slowed claims verification and adjudication.
By 2004, the Water Court had just six water masters and four clerks, and an annual budget of $1 million. Full adjudication, which was to have taken 10 years, had stretched to 25 years with no firm end in sight. Preliminary decrees had yet to be issued in 30 sub-basins.
The slow pace of adjudication led the Montana Legislature to direct the Environmental Quality Council (EQC) to undertake a study of the Water Court and MWUA in 2003. The EQC determined that the slow pace of adjudication would take another 30 to 40 years to complete, and that errors and inaccuracies were creeping into the system due to the overwhelming workload. The EQC proposed legislation in the 2005 session of the legislature which would require the DNRC to examine all water rights claims by June 30, 2015. The Water Court was given until 2020 to issue all final decrees. To support the Water Court, a fee was imposed on all water rights in the state. The money raised by the water rights fee allowed the Water Court to expand the number of water masters to 11 and the number of clerks to six. The water rights fee proved highly contentious, however. The legislature repealed the fee in 2007, but maintained the Water Court's budget by appropriating funds from the state's general revenues. In 2009, a legislative study found that the adjudication process was now anticipated to end until 2028.
To speed up the work of the Water Court, the state legislature approved the creation of an Associate Water Judge in 2011. The Chief Water Judge retained the administrative duties and assigned cases to the Associate Water Judge, but in most other respects the two were co-judges of the Water Court. Russ McElyea, a private adjudicator and real estate attorney, was nominated to be the Associate Water Judge in May 2012. His four-year term in office began on July 1.
As the DNRC moved more swiftly on examining water rights claims, it had less work to do. However, Chief Water Judge Loble advised the legislature that roughly 90,000 water claims adjudicated in the early 1980s needed to be re-adjudicated. The Water Court recognized that its early work had not been standardized, and potentially could create extensive litigation once revised preliminary decrees were issued. To assist the Water Court in meeting these needs, the 2013 legislature approved legislation to shift funds and personnel from the DNRC to the Water Court.
Chief Judge Loble retired in July 2013. Loble reviewed more than 1,700 water rights claims a year during his tenure as Chief Water Judge, and reviewed and approved nine compacts between the State of Montana and various Native American tribes. Nevertheless, more than 15,000 water rights claims remained unreviewed by the Water Court. Upon his retirement, Loble famously noted "water is a flammable substance" in Montana.
Judge McElyea tenure
McElyea was appointed Chief Water Judge in May 2013 effective upon Loble's retirement. Douglas Ritter was appointed Associate Water Judge on September 13, 2013, to fill McElyea's unexpired term.
In early 2015, the DNRC finished verifying and examining the more than 219,000 water rights claims in Montana. Chief Water Judge McElyea asked the state legislature for assistance in the Water Court's review of the 90,000 early decisions. To help ensure that the Water Court was on firm legal ground for this review, McElyea asked the legislature to adopt the Water Court's reexamination benchmarks into law. The legislature did so, and increased funding for Water Court as well.
In 2017, the Montana Legislature began consideration of a bill which would alter the MWUA. Under current law, anyone who objects to a DNRC decision regarding new water rights (those filed after 1982) must seek redress in a Montana District Court. But District Court judges expressed concern over this provision, because they lacked experience with water rights. The proposed bill would change the venue for this lawsuit to the Water Court. Only four or five cases a year were expected to come before the court.
Termination
The 1979 MWUA amendments contained no provision for terminating the Water Court once it accomplished its task of adjudicating all water rights. Theoretically, the Water Court could run out of work once its task was completed. However, in 1985 the Montana Legislature enacted a bill which gave the Water Court jurisdiction over water allocation decisions by the DNRC. Several studies project that all final adjudications would have been reviewed by the Montana Supreme Court by 2028. This would leave the Water Court with little work.
Case law
In 1979, the U.S. government revived the several federal lawsuits in Montana seeking to protect the water rights claims of the Native American tribes in the state. These went before the Ninth Circuit Court of Appeals in 1982, which held in , , and that state courts could not adjudicate Native American water claims. The cases were consolidated by the U.S. Supreme Court, which overturned the Ninth Circuit in Many legal experts had assumed that federal courts would favor federal (e.g., Native American) interests and state courts would favor state (e.g., local) interests. Depending on where a case was filed would largely determine the outcome, and they expected the Supreme Court to follow this reasoning by following a "first to the courthouse". But the Supreme Court declined to do so. Instead, it ruled that the more comprehensive state processes for adjudicating water rights should be allowed to proceed. Federal lawsuits should be not be entertained by the federal district courts until the state water adjudication process has run its course. The ruling in ''San Carlos Apache Tribe'' effectively brought Native American water rights claims under the MWUA.
''San Carlos Apache Tribe'' left the Montana Supreme Court to determine whether the Constitution of Montana and the MWUA gave the Water Court the authority to adjudicate Native American water rights. In and , the Montana Supreme Court held that the 1972 constitution did not bar state adjudication of Native American water rights, and that the MWUA provided similar authority to the Water Court.
As the Montana Supreme Court was deciding the two MWUA cases, it was also wrestling with a new issue: Stream access and recreational use. In , the Montana Supreme Court distinguished between navigability-for-title and navigability-for-use. Property owners could take
title
A title is one or more words used before or after a person's name, in certain contexts. It may signify either generation, an official position, or a professional or academic qualification. In some languages, titles may be inserted between the f ...
to stream beds beneath navigable waters. But use of the waters was something different, and could only be vested in the state. In , the Montana Supreme Court went even further, It held, first, that capability for use (not actual use) determined navigability-for-use, and, second, that the state's ownership of waters (irrespective of who owned the bed beneath the waters) gave the public access to these waters. In 1985, the year after ''Curran'' and ''Hildreth'', the Montana Legislature codified these decisions in the
Montana Stream Access Law
The Montana Stream Access Law says that anglers, floaters and other recreationists in Montana have full use of most natural waterways between the high-water marks for fishing and floating, along with swimming and other river or stream-related ac ...
. The law opened "all surface waters that are capable of recreational use othe public without regard to the ownership of the land underlying the waters." ''Curran'', ''Hildreth'', and the Stream Access law created a new class of user (the public) who had a vested interest in seeing that navigable waters were protected so they could be used for things such as boating, fishing, floating, hunting, swimming, and other water-related pleasure activities. The tension between water rights claimants and recreational users has remained a contentious one ever since, with numerous lawsuits before the Montana Supreme Court.
''Curran'' and ''Hildreth'' led to another significant Montana Supreme Court ruling regarding Water Court decisions as well. Montana Trout Unlimited (MTU), a fishing advocacy and conservation group, applied to the Water Court to object to certain preliminary water rights rulings on behalf of recreational users. The Water Court refused to give MTU permission to file its objections. MTU took the case to the Montana Supreme Court, which in 2011 overruled the Water Court and held in that there "is no statutory or regulatory restriction on who is entitled to file an objection to a claim of a
water right." Initially, the effect of ''Montana Trout Unlimited v. Beaverhead Water Co.'' was expected to unleash a wave of objections to water rights claims. But four years later, a state legislative study found that far fewer objections had been filed than expected. Although the adjudication process had been slowed, it was not overwhelmed.
In 2013 and 2014, the Montana Supreme Court issued a series of rulings in which it established the standard of review for Water Court rulings. The state high court held that Water Court rulings should be reviewed using the same "clearly erroneous" standard which the Montana Supreme Court uses to review Montana District Court decisions.
In 2017, the Montana Supreme Court considered a case in which non-Native federal reserved water rights conflicted with state water claims. In this case, the federal Bureau of Land Management (BLM) owned five reservoirs and a lake on federal land. BLM did not, however, use the water. Ranchers in the area asked the Water Court to disallow BLM's water rights claims, and to give them the water. The ranchers claimed that the MWUA required actual use of water, not just its diversion or retention. The Water Court declined to overturn BLM's water rights. In , the Montana Supreme Court agreed with the Water Court. Although the reservoirs had been constructed for the benefit of ranchers holding grazing leases on BLM land, BLM was not obligated to actually distribute the water in order to retain its water claims.
Tribal and federal compacts
Because the state of Montana is not engaged in a full ''inter se'' adjudication of water rights, the federal government does not have to relinquish its water rights in Montana under the McCarran Act. The MWUA established the Montana Reserved Water Rights Compact Commission to negotiate a series of compacts with federal agencies and Native American tribes to essentially adjudicate federal claims.
Tribal compacts include:
* Assiniboine (
Nakota
Nakota (or Nakoda or Nakona) is the endonym used by those ''Assiniboine'' Indigenous people in the US, and by the Stoney People, in Canada.
The Assiniboine branched off from the Great Sioux Nation (aka the ''Oceti Sakowin'') long ago and moved f ...
) and Sioux (
Dakota
Dakota may refer to:
* Dakota people, a sub-tribe of the Sioux
** Dakota language, their language
Dakota may also refer to:
Places United States
* Dakota, Georgia, an unincorporated community
* Dakota, Illinois, a town
* Dakota, Minnesota, ...
) Tribes of the
Fort Peck Indian Reservation
The Fort Peck Indian Reservation ( asb, húdam wįcášta, dak, Waxchį́ca oyáte) is located near Fort Peck, Montana, in the northeast part of the state. It is the home of several federally recognized bands of Assiniboine, Nakota, Lakota, ...
—Signed in 1985, this compact governs the Missouri River and its tributaries flowing through the Fort Peck Indian Reservation. It was ratified by the Montana Legislature, in 1985, the
United States Department of the Interior
The United States Department of the Interior (DOI) is one of the executive departments of the U.S. federal government headquartered at the Main Interior Building, located at 1849 C Street NW in Washington, D.C. It is responsible for the ma ...
, the
United States Department of Justice
The United States Department of Justice (DOJ), also known as the Justice Department, is a federal executive department of the United States government tasked with the enforcement of federal law and administration of justice in the United Stat ...
in 1985. The Montana Water Court issued a final decree governing this compact in August 2001.
* Blackfeet Tribe ( Piikáni) of the
Blackfeet Indian Reservation
The Blackfeet Nation ( bla, Aamsskáápipikani, script=Latn, ), officially named the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana, is a federally recognized tribe of Siksikaitsitapi people with an Indian reservation in Mon ...
—Signed in 2009, this compact governs Birch Creek and the Milk River. It was approved by Congress and signed into law by President
Barack Obama
Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the ...
on December 16, 2016.
* Chippewa (
Ojibwe
The Ojibwe, Ojibwa, Chippewa, or Saulteaux are an Anishinaabe people in what is currently southern Canada, the northern Midwestern United States, and Northern Plains.
According to the U.S. census, in the United States Ojibwe people are one of ...
) Cree (
Nehiyaw
The Cree ( cr, néhinaw, script=Latn, , etc.; french: link=no, Cri) are a North American Indigenous people. They live primarily in Canada, where they form one of the country's largest First Nations.
In Canada, over 350,000 people are Cree or ...
) Tribe of the
Rocky Boy Indian Reservation
Rocky Boy's Indian Reservation (also known as Rocky Boy Reservation) is one of seven Native American reservations in the U.S. state of Montana. Established by an act of Congress on September 7, 1916, it was named after ''Ahsiniiwin'' ( Stone Ch ...
—Signed in 1977, this compact covers all water on the Rocky Boy Indian Reservation. It was ratified by the Montana Legislature in 1997, and by Congress in 1999. The Montana Water Court issued a final decree governing this compact in May 2002.
* Confederated
Salish
Salish () may refer to:
* Salish peoples, a group of First Nations/Native Americans
** Coast Salish peoples, several First Nations/Native American groups in the coastal regions of the Pacific Northwest
** Interior Salish peoples, several First Nat ...
and Kootenai (
Ktunaxa
The Kutenai ( ), also known as the Ktunaxa ( ; ), Ksanka ( ), Kootenay (in Canada) and Kootenai (in the United States), are an indigenous people of Canada and the United States. Kutenai bands live in southeastern British Columbia, northern ...
and
Kalispel
The Pend d'Oreille ( ), also known as the Kalispel (), are Indigenous peoples of the Northwest Plateau. Today many of them live in Montana and eastern Washington of the United States. The Kalispel peoples referred to their primary tribal range a ...
) Tribes of the
Flathead Indian Reservation
The Flathead Indian Reservation, located in western Montana on the Flathead River, is home to the Bitterroot Salish, Kootenai, and Pend d'Oreilles tribes – also known as the
Confederated Salish and Kootenai Tribes of the Flathead Nation. The ...
—Signed in 2013, the compact governs all water on the Flathead Indian Reservation as well as tribal water claims outside the reservation. It failed to pass the state legislature, and was revised by all the parties in 2014. It was approved by the Montana Legislature in 2015. It was signed by outgoing-U.S. president Donald Trump on December 29, 2020, and CSKT's Tribal Council approved the Compact and ordinance December 29, 2020. Secretary of the Interior
Deb Haaland
Debra Anne Haaland (; born December 2, 1960) is an American politician serving as the 54th United States secretary of the interior. A member of the Democratic Party, she served as chair of the New Mexico Democratic Party from 2015 to 2017 and a ...
enacted the Compact September 17, 2021.
* Crow ( Apsáalooke) Tribe—Signed in 1999, this compact governs all water on the
Crow Indian Reservation
The Crow Indian Reservation is the homeland of the Crow Tribe. Established 1868, the reservation is located in parts of Big Horn, Yellowstone, and Treasure counties in southern Montana in the United States. The Crow Tribe has an enrolled member ...
. It was approved by the Montana Legislature in 1999, by Congress in November 2010, and by the Crow Tribe in March 2011. A preliminary decree was issued by the Montana Water Court in January 2013, and a final decree in May 2015.
* Gros Ventre Haaninin and Assiniboine (Nakota) Tribes of the
Fort Belknap Indian Reservation
The Fort Belknap Indian Reservation ( ats, ’ak3ɔ́ɔyɔ́ɔ, lit=the fence or ats, ’ɔ’ɔ́ɔ́ɔ́nííítaan’ɔ, lit=Gros Ventre tribe, label=none) is shared by two Native American tribes, the A'aninin (Gros Ventre) and the Nakoda ...
—Signed in 2001, this compact governs all water on the Fort Belknap Indian Reservation. It was approved by the Montana Legislature in 2001. Although legislation was submitted in 2011, the compact still awaits approval by Congress.
* Northern Cheyenne (Tsehéstáno) Tribe of the
Northern Cheyenne Indian Reservation
The Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation ( chy, Tsėhéstáno; formerly named the Tongue River) is the federally recognized Northern Cheyenne tribe. Located in southeastern Montana, the reservation is approximately ...
—Signed in 1991, this compact covers all water on the Northern Cheyenne Indian Reservation, as well as Rosebud Creek and the Tongue River and their tributaries. It was approved by the Montana Legislature in 1991, and by Congress in September 1992. The Montana Water Court issued a final decree governing this compact in September 1995.
Other federal agency compacts include:
* Bear Trap Canyon unit of the
Lee Metcalf Wilderness
The Lee Metcalf Wilderness is located in the northern Rocky Mountains in the U.S. state of Montana. Created by an act of Congress in 1983, this rugged alpine wilderness is divided into four separated parcels typified by complex mountain topography: ...
—Signed in 1997, this compact covers all water in the Bear Trap Canyon unit of the Lee Metcalf Wilderness, as well as the
Madison River
The Madison River is a headwater tributary of the Missouri River, approximately 183 miles (295 km) long, in Wyoming and Montana. Its confluence with the Jefferson and Gallatin rivers near Three Forks, Montana forms the Missouri River.
Th ...
. This compact was ratified by the Montana Legislature and the Department of the Interior in 1997. The Montana Water Court issued a final decree governing this compact in May 2011.
* Benton Lake National Wildlife Refuge—Signed in 1996, this compact covers all water in the Benton Lake National Wildlife Refuge. This compact was ratified by the
United States Fish and Wildlife Service
The United States Fish and Wildlife Service (USFWS or FWS) is an agency within the United States Department of the Interior dedicated to the management of fish, wildlife, and natural habitats. The mission of the agency is "working with othe ...
and the Montana Legislature in 1997. The Montana Water Court issued a final decree governing this compact in October 2005.
*
Big Hole National Battlefield
Big Hole National Battlefield preserves a battlefield in the western United States, located in Beaverhead County, Montana. In 1877, the Nez Perce fought a delaying action against the U.S. Army's 7th Infantry Regiment here on August 9 and 10, duri ...
—Signed in 1993, this compact covers all water on the Big Hole National Battlefield. This compact was ratified by the National Park Service and the Montana Legislature in 1993. The Montana Water Court issued a final decree governing this compact in April 2005.
*
Bighorn Canyon National Recreation Area
Bighorn Canyon National Recreation Area is a national recreation area established by an act of Congress on October 15, 1966, following the construction of the Yellowtail Dam by the Bureau of Reclamation. It straddles the border between Wyoming ...
—Signed in 1993, this compact covers all water in the Bighorn Canyon National Recreation Area. This compact was ratified by the National Park Service in 1993 and the Montana Legislature in 1995. The Montana Water Court issued a final decree governing this compact in April 2005.
* Black Coulee National Wildlife Refuge—Signed in 1996, this compact covers all water in the Black Coulee National Wildlife Refuge. This compact was ratified by the U.S. Fish and Wildlife Service and the Montana Legislature in 1997. The Montana Water Court issued a final decree governing this compact in October 2005.
*
Bowdoin National Wildlife Refuge
Bowdoin National Wildlife Refuge is a National Wildlife Refuge (NWR) located in the north-central region of the U.S. state of Montana. The refuge is northeast of Malta, Montana in the Milk River Valley and is managed by the U.S. Fish and Wildli ...
—Signed in April 2013, this compact governs all water rights in the Bowdoin National Wildlife Refuge. The
United States Forest Service
The United States Forest Service (USFS) is an agency of the U.S. Department of Agriculture that administers the nation's 154 national forests and 20 national grasslands. The Forest Service manages of land. Major divisions of the agency in ...
and
United States Fish and Wildlife Service
The United States Fish and Wildlife Service (USFWS or FWS) is an agency within the United States Department of the Interior dedicated to the management of fish, wildlife, and natural habitats. The mission of the agency is "working with othe ...
approved the compact in March 2014, a preliminary decree was issued by the Montana Water Court in October 2015, and a final decree was issued by the Montana Water Court in May 2016.
* Charles M. Russell National Wildlife Refuge—Signed May 11, 2015, this compact governs 69 streams flowing into the Charles M. Russell National Wildlife Refuge. This compact was ratified by the Montana legislature in 2013. The
United States Department of the Interior
The United States Department of the Interior (DOI) is one of the executive departments of the U.S. federal government headquartered at the Main Interior Building, located at 1849 C Street NW in Washington, D.C. It is responsible for the ma ...
and the
United States Department of Justice
The United States Department of Justice (DOJ), also known as the Justice Department, is a federal executive department of the United States government tasked with the enforcement of federal law and administration of justice in the United Stat ...
signed the compact on May 11, 2015. As of January 2017, the compact was awaiting approval by the Montana Water Court.
* Fort Keogh Livestock and Range Research Station—Signed in 2006, this compact covers all water at the Fort Keogh Livestock and Range Research Station. This compact was ratified by the Montana Legislature in 2007, and by the
United States Department of Agriculture
The United States Department of Agriculture (USDA) is the federal executive department responsible for developing and executing federal laws related to farming, forestry, rural economic development, and food. It aims to meet the needs of com ...
in 2013. The Montana Water Court issued a preliminary decree governing this compact in June 2015, and a final decree in April 2016.
* Glacier National Park—Signed in 1993, this compact covers all water in Glacier National Park. This compact was ratified by the
National Park Service
The National Park Service (NPS) is an agency of the United States federal government within the U.S. Department of the Interior that manages all national parks, most national monuments, and other natural, historical, and recreational propert ...
and the Montana Legislature in 1993. The Montana Water Court issued a final decree governing this compact in April 2005.
*
Little Bighorn Battlefield National Monument
Little Bighorn Battlefield National Monument preserves the site of the June 25 and 26, 1876, Battle of the Little Bighorn, near Crow Agency, Montana, in the United States. It also serves as a memorial to those who fought in the battle: George Arm ...
—Signed in 1993, this compact covers all water on the Little Bighorn National Battlefield. This compact was ratified by the National Park Service in 1993 and the Montana Legislature in 1995. The Montana Water Court issued a final decree governing this compact in April 2005.
*
National Bison Range
The Bison Range (BR) is a nature reserve on the Flathead Indian Reservation in western Montana established for the conservation of American bison. Formerly called the National Bison Range, the size of the bison herd at the BR is 350 adult bison ...
—Signed in 2009, this compact governs all water rights in the National Bison Range. This compact was ratified by the Montana Legislature and U.S. Fish and Wildlife Service in 2009. A preliminary decree was issued by the Montana Water Court in September 2011, and a final decree was issued in July 2014.
*
Red Rock Lakes National Wildlife Refuge
Red Rock Lakes National Wildlife Refuge is a remote refuge located in the high elevation of the Centennial Valley, in the southwestern region of the U.S. state of Montana. Adjacent to Gallatin National Forest and near Yellowstone National Park, t ...
—Signed in 1999, this compact covers all water in the Red Rock Lakes National Wildlife Refuge. This compact was ratified by the Montana Legislature in 1999, and by the Department of Justice and the Department of the Interior in February 2000. The Montana Water Court issued a final decree governing this compact in August 2005.
*
Upper Missouri River Breaks National Monument
The Upper Missouri River Breaks National Monument is a national monument in the western United States, protecting the Missouri Breaks of north central Montana. Managed by the Bureau of Land Management (BLM), it is a series of badland areas charac ...
—Signed in 2012, this compact covers all water in the Upper Missouri River Breaks National Monument, as well as Arrow Creek and the
Judith River
The Judith River is a tributary of the Missouri River, approximately 124 mi (200 km) long, running through central Montana in the United States. It rises in the Little Belt Mountains and flows northeast past Utica and Hobson. It is ...
. This compact was ratified by the Montana Legislature in 2013, and by the Department of Justice and the Department of the Interior in 2015. The Montana Water Court issued a preliminary decree governing this compact in 2015, and a final decree in April 2016.
* Upper Missouri Wild and Scenic River—Signed in 1997, this compact covers all water in the Upper Missouri Wild and Scenic River, as well as the
Madison River
The Madison River is a headwater tributary of the Missouri River, approximately 183 miles (295 km) long, in Wyoming and Montana. Its confluence with the Jefferson and Gallatin rivers near Three Forks, Montana forms the Missouri River.
Th ...
. This compact was ratified by the Montana Legislature and the Department of the Interior in 1997. The Montana Water Court issued a final decree governing this compact in May 2011.
* South Fork Flathead Wild and Scenic River—Signed in 2006, this compact covers all water for the South Fork Flathead Wild and Scenic River. This compact was ratified by the Montana Legislature and the Department of the Interior in 2007. The Montana Water Court issued a final decree governing this compact in October 2012.
* U.S. Sheep Experiment Station—Signed in 2006, this compact covers all water at the U.S. Sheep Experiment Station's lands in Montana. This compact was ratified by the Montana Legislature in 2007, and by the Department of Agriculture in 2013. The Montana Water Court issued a final decree governing this compact in May 2015.
*
Yellowstone National Park
Yellowstone National Park is an American national park located in the western United States, largely in the northwest corner of Wyoming and extending into Montana and Idaho. It was established by the 42nd U.S. Congress with the Yellowst ...
—Signed in 1993, this compact covers all water in Yellowstone National Park. It contains specific language to protect the resources and hydrothermal features in Yellowstone. This compact was ratified by the National Park Service and the Montana Legislature in 1993. The Montana Water Court issued a final decree governing this compact in April 2005.
Chief Judges of the Montana Water Court
* William Wallace Lessley—1979 to 1990 (his death)
* C. Bruce Loble—1990 to July 2013
* Ross McElyea—July 2013 to present
Douglas Ritter has held the title of Associate Water Judge since 2013 when Judge McElyea became the Chief Water Judge.