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93-518: 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. The Montana Territory

186-461: 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

279-461: 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: The four judges of the Water Court were to be appointed from among

372-479: A compact. Congress must explicitly approve any compact that would give a state power that is otherwise designated to the federal government . Treaties between the states, ratified under the Articles of Confederation during the period after American independence in 1776 until the current U.S. Constitution was ratified in 1789, are grandfathered and treated as interstate compacts. This includes agreements like

465-424: 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

558-414: A new multi-state governmental agency which is responsible for administering or improving some shared resource such as a seaport or public transportation infrastructure. Compacts may also be limited to a certain multi-state region, may be open to all states and insular areas, or may be open to subnational governments in other countries. Interstate compacts are distinct from, but may involve aspects of,

651-716: A small museum dedicated to Chief Plenty Coups and the Crow Tribe. The chief's two-floor lodge house and grocery store is preserved. Since 1904, the Crow have organized the big Crow Fair , forming the "Teepee Capital of the World". By tradition, it is held the third week in August. The PBS TV series Reading Rainbow partially filmed its tenth episode, "The Gift of the Sacred Dog", on the reservation on June 17, 1983. The title

744-408: 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,

837-470: A third, more-empowered type of interstate compact, in which persistent governance structures are tasked by member states with conducting designated services. Today, Virginia is a member of the most interstate compacts at 40, while Hawaii is a member of the fewest at 15. Crow Indian Reservation The Crow Indian Reservation is the homeland of the Crow Tribe . Established 1868, the reservation

930-472: 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

1023-560: 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

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1116-523: 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

1209-470: A year. The reservation's Absaloka coal mine provides half of the tribe's nonfederal budget. The single-pit mine opened in 1974 and employs 170 people. The decline of coal mining in the United States has forced the tribe to lay off 1,000 of its 1,300 employees. Every tribal citizen receives a $ 225 coal payment every four months. Half of the reservation's adult population is unemployed. In 2013,

1302-584: Is approximately 10 miles (16 km) northwest of the reservation boundary. It has a land area of 3,593.56 square miles (9,307.3 km ) and a total area of 3,606.54 square miles (9,340.9 km ), making it either the fifth or sixth-largest reservation in the country (alternating with the Standing Rock Reservation depending on whether water areas are counted). Reservation headquarters are in Crow Agency, Montana . The reservation

1395-549: Is located in old Crow country. In August 1805, fur trader Francois-Antoine Larocque camped at the Little Bighorn River and traveled through the area with a Crow group. The contemporary reservation lies at the center of the Crow Indian territory described in the 1851 Fort Laramie treaty . Pressure from Europeans north of Yellowstone River and a Lakota (Sioux) invasion into Crow treaty guaranteed land from

1488-528: Is located in parts of Big Horn , Yellowstone , and Treasure counties in southern Montana in the United States . The Crow Tribe has an enrolled membership of approximately 11,000, of whom 7,900 reside in the reservation. 20% speak Crow as their first language. The reservation, the largest of the seven Indian reservations in Montana , is located in south-central Montana , bordered by Wyoming to

1581-495: 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

1674-535: Is not required for agreements "which the United States can have no possible objection or have any interest in interfering with" (in addition to ruling that the words "agreement" and "compact" used in the Compact Clause are synonyms). Instead, the Court required explicit congressional consent for interstate compacts that are "directed to the formation of any combination tending to the increase of political power in

1767-626: 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 Mettler v. Ames Realty Co. , 201 P. 702 (Mont. 1921). Winters rights were further defined in 1939, when the U.S. Supreme Court held in Powers v. United States , 305 U.S. 527 (Sup.Ct. 1939). that Native American water rights existed independent of state law. This case had arisen on

1860-624: 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 United States v. McIntire , 101 F.2d 650 (9th Cir. 1939)., 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

1953-615: The Supreme Court of the United States held in Winters v. United States , 207 U.S. 564 (Sup.Ct. 1908). 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

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2046-582: The Treaty of Beaufort , which set the boundary between Georgia and South Carolina in 1787, and is still in effect. Prior to 1922, most interstate compacts were either border agreements between states or advisory compacts, the latter of which are tasked with conducting joint studies to report back to the respective state legislatures. With the creation of the Port Authority of New York and New Jersey in 1922, administrative compacts began to develop as

2139-511: The United States , an interstate compact is a pact or agreement between two or more states , or between states and any foreign sub-national government. Most early interstate compacts resolved boundary disputes, but since the early 20th century, compacts have increasingly been used as a tool of state cooperation and mutual recognition on infrastructure, services and professional licensing, often to ease administrative barriers and reduce costs and litigation. In some cases, an agreement will create

2232-912: The United States Constitution provides that "No State shall, without the Consent of Congress ,... enter into any Agreement or Compact with another State, or with a foreign Power,..." However, in a report released in October 2019 about the proposed National Popular Vote Interstate Compact , the Congressional Research Service (CRS) cited the U.S. Supreme Court 's ruling in Virginia v. Tennessee (1893)—reaffirmed in U.S. Steel Corp. v. Multistate Tax Commission (1978) and Cuyler v. Adams (1981)—that ruled that explicit congressional consent of interstate compacts

2325-498: 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 State ex rel. McKnight v. District Court , 111 P.2d 292 (Mont. 1941). 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

2418-401: 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

2511-489: The Compact Clause. The CRS report stated that there were approximately 200 interstate compacts in effect in 2019. The timing for Congressional consent is not specified by the Constitution, so consent may be given either before or after the states have agreed to a particular compact. The consent may be explicit, but it may also be inferred from circumstances. Congress may also impose conditions as part of its approval of

2604-570: The Constitution is legislative, then "Congress must exercise it in conformity with the bicameralism and presentment requirements of Article I, Section VII ", and noting that the Republican River Compact was initially vetoed by President Franklin D. Roosevelt in 1942, the CRS report states that if an interstate compact requires explicit congressional approval, it must be approved by both houses of Congress and signed into law by

2697-768: 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, Colorado River Water Conservation District v. United States , 424 U.S. 800 (Sup.Ct. 1976)., also involving concurrent state and federal lawsuits over water rights,

2790-415: 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

2883-472: The DNRC. No permit is needed to use groundwater so long as no more than 35 US gallons (130 L) of water per minute are used, and less than 10 acre-feet (12,000 m) per year are withdrawn. Groundwater consumption over these limits requires a permit from the DNRC. Final decrees of the Montana Water Court may be appealed to the Montana Supreme Court, but only if the claimant had objected to

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2976-480: 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 State ex rel. Greely v. Water Court , 691 P.2d 833 (Mont. 1984). and State ex rel. Greely v. The Confederated Salish and Kootenai Tribes , 712 P.2d 754 (Mont. 1984).,

3069-418: 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

3162-517: 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: Other federal agency compacts include: Douglas Ritter has held the title of Associate Water Judge since 2013 when Judge McElyea became the Chief Water Judge. Notes Interstate compact In

3255-969: The Montana Supreme Court by 2028. This would leave the Water Court with little work. 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 Northern Cheyenne Tribe v. Adsit , 668 F.2d 1080 (9th Cir. 1982)., San Carlos Apache Tribe v. Arizona , 668 F.2d 1093 (9th Cir. 1982)., and Navajo Nation V. United States , 668 F.2d 1100 (9th Cir. 1982). that state courts could not adjudicate Native American water claims. The cases were consolidated by

3348-518: The Montana Supreme Court distinguished between navigability-for-title and navigability-for-use. Property owners could take title to stream beds beneath navigable waters. But use of the waters was something different, and could only be vested in the state. In Montana Coalition for Stream Access v. Hildreth , 684 P.2d 1088 (Mont. 1984)., the Montana Supreme Court went even further, It held, first, that capability for use (not actual use) determined navigability-for-use, and, second, that

3441-430: 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 Montana Coalition for Stream Access v. Curran , 682 P.2d 163 (Mont. 1984).,

3534-644: 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 masters (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

3627-549: 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. 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

3720-421: 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

3813-531: The President in order to become law. In Cuyler v. Adams , the Court held that congressional approval of interstate compacts makes them federal laws . The CRS report cites the Court's opinions in Virginia v. Tennessee and Northeast Bancorp v. Federal Reserve Board of Governors (1985) as stating that any agreement between two or more states that "cover[s] all stipulations affecting the conduct or claims of

Montana Water Court - Misplaced Pages Continue

3906-590: The States, which may encroach upon or interfere with the just supremacy of the United States"—meaning where the vertical balance of power between the federal government and state governments is altered in favor of state governments, while the report references U.S. Steel Corp. v. Multistate Tax Commission as stating that the "pertinent inquiry [with respect to the Compact Clause] is one of potential, rather than actual, impact on federal supremacy" in noting that

3999-627: 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

4092-891: 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

4185-522: The U.S. Supreme Court, which overturned the Ninth Circuit in Arizona v. San Carlos Apache Tribe , 463 U.S. 545 (Sup.Ct. 1983). 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

4278-680: The Upper Missouri River Basin Division. He died of a stroke in office on March 29, 1990, at the age of 82. 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

4371-517: 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

4464-438: 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

4557-433: 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

4650-494: The Water Court. Upon his retirement, Loble famously noted "water is a flammable substance" in Montana. 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

4743-465: The Yellowstone area. The situation called for a new Crow treaty. On May 7, 1868, the Crow sold around 30 million acres of their 1851 territory and agreed to live in a reservation. The border to the south was the 45th degree of north latitude, while the 107th degree of longitude west was the eastern border. Both borderlines met the Yellowstone at a point. The connection of these two points followed

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4836-407: 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 In re Barthelmess Ranch Corp. , 2016 MT 348 (Mont. 2017)., the Montana Supreme Court agreed with the Water Court. Although

4929-513: 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)

5022-491: The case to the Montana Supreme Court, which in 2011 overruled the Water Court and held in Montana Trout Unlimited v. Beaverhead Water Company , 255 P.3d 179 (Mont. 2011). 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

5115-544: The construction of the Bighorn Canyon Dam in the 1960s. During the 1960s, Pauline Small became the first woman Crow reservation tribal official. The value of the enormous amount of coal under the surface in the old tribal territory became clear to the reservation Crows after the Arab Oil Embargo in the 1970s. The Crow Tribe owns 1.4 billion tons of coal, enough to supply the United States for

5208-426: The course of the river and made up the last border of the 1868 reservation. It comprised about eight million acres. Major F. D. Pease was the first civil agent at the Crow reservation, from 1870 to 1874. Land cessions to the United States approved in 1882, 1892 and 1906 cut the western and northernmost part of the 1868 reservation. Crow chief Plenty Coups , Robert Yellowtail and others stopped efforts to open

5301-461: The court. 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

5394-416: 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. In 1972, Montana voters adopted a new constitution which greatly expanded

5487-555: The east (the lead-up to Red Cloud's War ) made the 1860s a trying time for the Crow. " Oglalas under Crazy Horse and Red Cloud and Hunkpapas and Minneconjous under Sitting Bull continued to follow the dwindling buffalo herds west from the Powder River , while gold seekers travelled north into the [Crow] region along the Bozeman [Trail] ." Steamboats on the Missouri River brought additional prospectors into

5580-478: The existing Montana District Court judges by the Governor of Montana . 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)

5673-507: The following: Several interstate compacts may establish multi-state agencies in order to coordinate policy between, or perform tasks on behalf of, member states. Such agencies may take the form of commissions, with at least one representative from a member state. Alternatively, member states to a compact may opt for cooperation with a single independent non-profit organization which carries out designated tasks without government funding. The Compact Clause ( Article I, Section 10, Clause 3 ) of

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5766-410: 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,

5859-495: The parties", prohibits members from "modify[ing] or repeal[ing] [the agreement] unilaterally", and requires "'reciprocation' of mutual obligations" constitutes an interstate compact. Additionally, the CRS report cites the Court's opinion in Northeast Bancorp as suggesting that a requirement of a new interstate governmental entity is a sufficient condition for an agreement to qualify as being an interstate compact under

5952-790: The potential erosion of an enumerated power of the United States Congress by an interstate compact can arguably require explicit congressional approval. The CRS report cites the Supreme Court's rulings in Florida v. Georgia (1855) and in Texas v. New Mexico and Colorado (2018) as recognizing that explicit congressional consent is also required for interstate compacts that alter the horizontal balance of power amongst state governments. Citing Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc. (1991) as stating that if an enumerated power under

6045-446: 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. 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

6138-435: 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

6231-497: 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

6324-597: The reservation in 1917. In a hotel room in Washington, D.C., they opened a bundle over the incense of buffalo chips from animals in the National Zoo and prayed for help. "The next day the attempted appropriation of their land was soundly defeated." Yellowtail made headlines when he became superintendent of his own tribe's reservation in 1934, the first Indian to do so. The reservation got its present shape after moderate land cuts in 1937 and in connection with

6417-615: The reservation is the Little Bighorn National Monument . On June 25, 1876, combined forces from the Lakota, Northern Cheyenne , and Arapaho tribes defeated the Seventh Cavalry Regiment commanded by George Armstrong Custer . Local Crow scouts defending their reservation guided Custer. Chief Plenty Coups (Alek-Chea-Ahoosh) State Park and Home is located near the town of Pryor. It has

6510-412: 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. 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

6603-418: 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

6696-786: The south and the Northern Cheyenne Indian Reservation to the east. The reservation includes the northern end of the Bighorn Mountains , Wolf Mountains , and Pryor Mountains . The Bighorn River flows north from the Montana-Wyoming state line, joining the Little Bighorn just east of Hardin . Part of the reservation boundary runs along the ridgeline separating Pryor Creek and the Yellowstone River. The city of Billings

6789-501: 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

6882-421: 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

6975-408: 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

7068-419: 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. The 1979 amendments to the MWUA established

7161-436: 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

7254-481: 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 law opened "all surface waters that are capable of recreational use [to] the public without regard to the ownership of the land underlying

7347-401: 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

7440-414: 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

7533-495: The tribe and Cloud Peak Energy agreed to open the Big Metal mine, which would have brought the company $ 10 million in revenue over the first five years. President Barack Obama blocked the mine and then imposed a moratorium on any new coal leasing on public lands. In March 2017, the Northern Cheyenne Indian Reservation sued Interior Secretary Ryan Zinke to stop his attempt to lift the moratorium. The biggest attraction in

7626-474: 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

7719-428: 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

7812-509: 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

7905-459: 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

7998-437: 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

8091-523: 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

8184-455: 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. Montana became

8277-503: 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

8370-568: 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

8463-404: 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. In an attempt to pre-empt the impending change to state law,

8556-494: 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

8649-544: 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

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