Hearing on Montana Water Court overhaul highlights divisions over water rights

By: - January 10, 2023 10:16 am

The Missouri River bends near Fort Benton, Montana. Fort Benton is the oldest continuously inhabited city in Montana, and was as far as riverboats could navigate (Photo by Darrell Ehrlick of the Daily Montanan).

A Senate committee hearing Monday on a bill that seeks to overhaul the Montana Water Court as the state tries to finish working through 50 years of water rights adjudication showed just how complicated water law is, and how many people it affects in the Treasure State.

Senate Bill 72 had its first hearing Monday afternoon in the Senate Natural Resources Committee, which heard nearly three hours of testimony from more than two dozen water lawyers, ranchers, water commissioners and others.

Proponents say it aims to “streamline” processes regarding fights over water rights half a century after the Water Use Act took effect in 1973. Opponents argued the measure would take away what some of them feel like is better local control over water rights decisions.

The bill is one of two proposed this session by the Department of Natural Resources and Conservation that stem from the Comprehensive Water Review that a group worked on from June 2021 until last September to try to find a way to resolve all water rights claims from before 1973, and to prepare for the future of water rights and use in a drying Montana and West.

“Going forward, water’s going to affect more people than those just raising alfalfa and barley,” said Steve Kelly, a water rights holder from Fort Benton who testified at the hearing.

Since July 1973, a year after the state adopted a new Constitution, the DNRC has overseen new water rights claims and changes to existing claims through a permitting process. The Montana Water Court has made decisions on claims prior to the 1979 Water Use Act taking effect – something that was “far more expensive and time consuming than contemplated,” according to the DNRC.

The Water Use Act put the DNRC in charge of who was “first in time, first in right” to the water for irrigation and other uses, as well as how much water had been used in the past, though that often was not well-documented.

More than 200,000 claims were originally submitted to the Montana Water Court by a 1982 deadline, which created a massive backlog that is still being sorted through in 2023 — due in part to the complicated court processes involving objections to claims in the state’s 86 basins and changes to statute made by lawmakers over the years.

Russ McElyea, the chief judge of the Montana Water Court, told the Water Policy Interim Committee in September the court had issued 14 decrees during the last year and that the court was making good progress, even among a record number of claims.

The measure is one of dozens tied to the red tape relief effort from Republican Gov. Greg Gianforte and Lt. Gov Kristen Juras.

“No one thought in 1973 that 50 years from then, here we are. We still aren’t finished with our adjudication, yet we’ve continued to use water and develop water,” Juras told a joint Natural Resources committees meeting last week regarding the work of the Comprehensive Water Review team.

She and Anna Pakenham Stevenson, the administrator for the Water Resources Division at DNRC, said one of the tasks of the Water Review team was to find ways to merge pre- and post-1973 water rights adjudication as final decrees, or decisions, are issued and as drought and population growth persists in Montana. Both addressed lawmakers regarding the two bills last week and spoke to the committee Monday.

SB72, sponsored by Sen. Steve Fitzpatrick, R-Great Falls, aims to merge the structures from before and after July 1973 and address the role of judges on the water court and where Montana law should move once the backlog of decrees are cleared, Pakenham Stevenson and members of the stakeholder group involved in the Comprehensive Water Review said.

“We’re not changing water law,” said Ryan McClane, a water attorney who also works for NorthWestern Energy who was a member of the final decree transition working group. “What we’re doing is attempting to make it work so that it’s easier for water users and the folks who represent them to navigate the system.”

A “one-stop shop”

There would be four Water Divisions that comprise the Montana Water Court, based on the state’s major river basins: the Yellowstone River Basin, Lower Missouri River Basin, Upper Missouri River Basin, and Clark Fork River Basin.

McClane told lawmakers that SB72 aims to “revitalize” the courts in those four divisions and give Montanans a place to have “one-stop shopping” no matter when a claim was filed, or where judges would hear arguments on water quantity, adjudication, decisions, distribution, enforcement and more.

That would keep users from having to go to several different courts when the water in dispute is in multiple jurisdictions, proponents said, by requiring Water Court proceedings be held in either the division or county where a dispute happens.

But the measure would also keep in place the ability for people to have a local district court judge make decisions if that is requested, which several ranchers said Monday was crucial to them in determining whether to support or oppose the bill.

The local control aspect of being able to ask for a district court judge to step in, as well as to maintain relationships with the water commissioners who work on the ground to enforce decisions between water rights owners, was a key point of contention at Monday’s meeting.

Proponents of the measure as introduced said it aims to move decision-making from district courts to Water Court in order to keep the expertise of the Water Court judges involved in the process and to keep water users from having to wait for district courts to take up their cases. Those backing the measure say water rights cases are often lower priority in counties with larger populations and more criminal and family matters before the courts.

Beth McLaughlin, a court administrator who testified as an informational witness, said there are currently 49 pending water issues before district courts in Montana, which she said handle about 56,000 cases each year.

Multiple ranchers, land and water attorneys, and farm and municipality organization representatives testified in favor of the bill Monday afternoon, saying they felt it would clarify procedures and lock in their water rights for the future.

“If you can’t get into court to make a call or to enforce your water rights, then your property rights are really kind of worthless, as you can’t enforce it,” said Hertha Lund, a land and water rights attorney.

Cliff Cox, a rancher from Winston, said since he is downstream from several neighbors with the same water right, he appreciated that water commissioners could be supervised under the water court judges so he could have a “one-stop shop” to find solutions when issues arose.

Richard Roth, a rancher from Big Sandy, said he and his family had spent more than a half-million dollars fighting for the senior water rights in the area. He said he supported the measure, as did other supporters, to ensure Montana’s primacy over its water.

Not everyone agrees

But there were nearly as many people who testified in opposition to the bill as those in favor — with some from each side acknowledging the bill needed tweaks, including the sponsor Fitzpatrick.

John Metropolis, a lobbyist representing the Alliance for Local Water Management, said he believed that despite the work of the group that put the bill together, it was only a “partial solution” and did not account for ranchers who have good working relationships with their district courts and water commissioners.

“A one-size-fits-all approach doesn’t work,” he said.

Several opponents pointed to concerns about a section that says a water right holder would be able to petition the DNRC to revoke or modify a permit or change in water rights that they believed would lead to fights among land and water rights owners.

Others had issues about the judges being appointed and not elected, saying they worried that non-elected judges might have similar enforcement powers to district court judges who are elected.

Several ranchers from Teton County spoke in opposition, saying they felt they had gone through a painful process in completing adjudication and had shored up the relationships with one another and their local water commissioner and judge.

“The current system we have in district court is working,” said Ross Salmond, an excavator from Teton County.

Pakenham Stevenson said some of the fears about local control were unwarranted.

“The relationship between water users and their water commissioner are not changing at all,” she said – noting the only difference would be people would have to go to Water Court rather than district court to file a complaint.

Some proponents of the bill say they believe the adjudication process will be finished by 2028 and that they would like a framework in place before the process is finished — though some doubted that timeline and others wondered why the measure could not wait until the 2025 session.

“We have until 2028, so what’s the rush?” said Mark Larson, a Teton County farmer.

Senate Minority Leader Pat Flowers, D-Belgrade, pondered what might happen should the bill pass this year, since the fiscal statement does not contain a cost analysis because most of the bill’s effects would happen after 2028. 

He noted that though funding would come from a state appropriation once the adjudication process is complete, there is a chance there could not be funding to support the program and that the legislatures of the future would have to make changes to statute to adjust.

Sen. Butch Gillespie, R-Ethridge said he felt there was plenty of time to amend the bill this session to try to allay concerns heard Monday, and Fitzpatrick said he felt it was a “good hearing” with good discussion and questions. 

Juras noted early on the stakes of the discussion as it moves forward. 

“Whiskey’s for drinking; water’s for fighting.”

How it would work

Under the measure as introduced, at least one Water Court judge in each of the four divisions would supervise the water commissioners in each division. The measure says there do not need to be four separate judges to oversee the four divisions, but that more judges can be added to the fold when, and if, needed.

The judges would work with the DNRC to compile water claims information and sort them between each division, then make decisions on any contested claims and hear other matters related to water ownership and distribution, according to the bill. The judges would also be able to appoint and supervise water commissioners and mediators.

Pakenham Stevenson said the changes would ensure water usage was not double counted because of pre-1973 claims and post-1973 permits on the same piece of water.

The measure, as introduced, would “provide certainty” to water users who have provisional permits or change authorizations before final decrees are issued and works to ensure those permits and changes are consistent with the final decrees, according to the DNRC.

“I think it’s one of the more meaningful steps that we’ve taken forward in a long time in Montana water law,” McClane said last week.

Currently, the Montana Supreme Court chief justice appoints a chief water judge and associate water judge, while a water judge is designated for each of the four divisions.

The governor would also be able to appoint additional water judges, and each judge could oversee “one or more water divisions.” One of the judges would be designated chief water judge by the governor.

Under the bill as introduced, the water judges serving as of Oct. 1 would serve the remainder of their term, but once it expires, the governor of Montana would appoint a new water judge that would be subject to Senate confirmation.

The bill would also extend the term of a water judge to six years, but they would be subject to a statewide noncompetitive retention vote before adjudication is completed if they would like to keep the job, according to the bill as introduced. After adjudication is finished, the judges would be subject to a retention vote in the division they represent.

The bill aims to preserve the current adjudication timeline, Pakenham Stevenson said.

“There was a concern it would take 50 more years, but that’s certainly not the case for this bill,” she said last week.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.