The Montana Water Court is a court of law in the U.S. state of Montana which has jurisdiction over the adjudication of water rights. The filing, verification, recording, and enforcement of water rights in the Montana Territory 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 masters ("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 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 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 ("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 in the north-central part of the state.
In 1921, the Montana Legislature 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 in south-central Montana, and involved land now owned by non-tribal members. The federal Ninth Circuit Court of Appeals 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 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 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 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), 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 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, 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) 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) 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.