How Montana Water Courts Work

The Montana Water Court is a court with exclusive jurisdiction over the adjudication of water rights claims. The court’s purpose is to expedite the adjudication of water rights claims within the state and Indian and Federal reserved water rights claims. Montana water courts adjudicate rights in four divisions formed by the natural boundaries between drainages and the state’s borders. These include:

• The Yellowstone River basin water division: comprises areas drained by the Yellowstone and Little Missouri Rivers and waters in Carter County.
• The lower Missouri River basin water division: comprises areas drained by the Missouri River from below the mouth of the Marias River and waters in Glacier and Sheridan Counties. This division publishes status reports regularly.
• The upper Missouri River basin water division comprises areas drained by the Missouri River to below the Marias River’s mouth. This division updates its basin plan regularly.
• The Clark Fork River basin water division: comprises areas drained by the Clark Fork River, the Kootenai River, and waters in Lincoln County. This division releases basin reports often.

The Montana Water Court, which consists of a Chief Water Judge, an Associate Water Judge, four District Water Judges, and water masters, settle all disputes from the divisions mentioned above. Water masters are court personnel appointed by judges to make sure that entities follow court orders. Water masters may also hear evidence on behalf of the judge and make recommendations to the judge about a claim’s disposition.

Identifying, verifying, and adjudicating water rights is quite a complicated process and is often slow due to limited budget and personnel size. There are about 219,000 water rights claims in 85 sub-basins pending adjudication in the state of Montana. The adjudication of a water rights claim goes through the following processes:

• Verification of claim: To begin adjudicating water rights claims, the water appropriator must first verify the claim in county or state records. The appropriator may also have to contact the Montana Department of Natural Resources and Conservation (DNRC) to examine the field.

• Filing a claim: When the water appropriator has fulfilled these prerequisites, the next step is filing a claim in the Water Court, and the court then assigns a water master to oversee the case.

• Preliminary decree and public notice: The water master is responsible for making a preliminary decree, or “temporary, preliminary decree.” This decree essentially assigns “first in time, first in line” rights to the claim and establishes water allocations. Furthermore, the water master issues a notice advising the public concerning the preliminary decree. This notice is widely circulated and advertised within the area to allow individuals with counterclaims to object to the first in line claim.

• Consideration of objections: If there are counterclaims, the water master considers these claims in a multi-party adversarial hearing. Upon review of all objections, the water master issues a revised decree and another public notice.

• Public hearing: After issuing a revised decree, the water master schedules a public hearing where claimants support the claim with evidence and testimonies.

• Final decree and recommendation: After the public hearing, the water master will prepare a final ruling and submit the recommendation to the Chief Water Judge.

• Trial: The Water Court will schedule a proper trial, usually overseen by the Chief Water Judge. Here, the judge will hear all objections to the water master’s rulings and make a final decree. However, the Water Court does not conduct trials inter se. In other words, water appropriators do not appear together at trials. Instead, the system works through independent hearings conducted by the assigned water master. The court performs trials based on the Montana Rule of Civil Procedure and rules set by the Supreme Court to adjudicate claims.

• Conflict: If two water appropriators conflict during the independent trials, the dispute proceeds to a District Court, where the District Court judge will direct the Water Court to issue a decree for temporary relief pending final adjudication.

• Appeal: Appeals from the Water Court are made directly to the Montana Supreme Court.

Per Section 3–7–201, a committee of judges elects water judges from a pool of district court judges, retired judges, and other judges in the judicial system. The election is nonpartisan, and nominees win by majority vote. At the Supreme Court’s Chief Justice request, a water judge may adjudicate claims in multiple water divisions. Water judges have a term of four years and are eligible for reelection. The chief water judge, appointed by the Supreme Court, is the water court’s administrative head and performs duties described in section 3–7–223 of the Montana Code Annotated. Also, the Supreme Court appoints associate water judges to assist the chief water judge.

All judges in Montana Water Court must abide by the cannons of the code of judicial conduct and may face removal from office by impeachment or disciplinary actions per Section 11, Part 7, Article 7 of the Montana Constitution. Likewise, a water judge or water master may withdraw or face disqualification if there is personal bias or interest in adjudicating a case or meet criteria established under Section 3–7–402.

Montana Water Court maintains a database of recent court orders that is accessible to the public. Interested individuals can also track the status of decrees, public notices, and compacts on the notices and information portal. Likewise, the court maintains a calendar of past and upcoming hearings for public members who wish to attend court proceedings. The Montana Water Court is located at:

Montana Water Court

1123 Research Drive

P. O. Box 1389

Bozeman, MT 59771

Phone: (406) 586–4364

Fax: (406) 522–4131