Understanding the Montana Water Right Adjudication Process

If you own property in Montana with historical water rights, those water rights are likely valuable assets. Yet many landowners are surprised to learn that those rights are still being formally reviewed and defined through a statewide adjudication process. At Worden Thane, we regularly assist clients with navigating this complex process before the Montana Water Court and in working with the Montana Department of Natural Resources and Conservation (DNRC) to address water rights issues or objections when they arise. Understanding how this process works, and how it may affect you, is the first step in protecting your interests.

A Brief History: Why Adjudication Exists

Montana’s modern water rights system is based on the concepts of beneficial use and prior appropriation.  Before the passage of Montana’s 1973 Water Use Act, water users in Montana could develop a water right simply by putting the water to beneficial use or through a statutory method developed in 1885 by the Montana Territorial Legislature that codified the steps a water user could take for developing and recording a water right.  These methods moved forward often without formal proceedings, centralized records, or precise quantification. While this system worked in early years when Settlors came to Montana, it created uncertainty over time as more water was put to beneficial use. Many claims lacked clear documentation of flow rates, volumes, priority dates, or places of use.  After July 1, 1973, new water uses generally require a permit unless exempt from general permitting requirements.

Under the Montana Water Use Act, the state is required to adjudicate all claims to the beneficial use of water made before July 1, 1973. The goal is to identify and quantify all pre-1973 historical water rights and integrate them into a unified, enforceable system. The adjudication process is designed to:

• Define and confirm historical water rights as they existed prior to July 1, 1973.
• Establish legal certainty and clarity for landowners and water users.
• Protect Montana’s water resources.
• Facilitate better water management across basins.

This process is ongoing and occurs basin by basin across Montana’s 85 water basins, with different types of decrees issued over time until each basin receives a final decree. 

Statements of Claim: The Foundation of Your Water Right

Most pre-1973 water rights have a Statement of Claim. Water users submitted such claims pursuant to statutory deadlines and the DNRC maintains the claims as official records. Each statement of claim generally describes the historical elements of a water right, possibly including the following parameters, depending on the type of right: priority date, source, flow rate, volume, place of use, period of use, purpose, and means of diversion.

However, a filed statement of claim is not the final word. Claims were initially reviewed by the DNRC and then examined by the Water Court. Many claims include notes that are known as “issue remarks” and identify potential legal or factual concerns that must be resolved before a right is fully adjudicated.

It is critical for landowners to review not just the abstract of a claim, but the complete claim file. Historical maps, affidavits, notices, and DNRC memoranda can all affect how a water right may be interpreted or challenged during the adjudication process. This is an area where experienced legal counsel can make a meaningful difference. At Worden Thane, we assist clients in obtaining, analyzing, and interpreting their water right claim files to better understand both risks and opportunities associated with the adjudication process.

Water Right Objections and Protecting Your Interests

After a basin’s initial decree is issued, there is a limited period during which water users may file objections to another water user’s right or to aspects of your own water right. 

While the adjudication process focuses on quantifying water use as it existed prior to 1973, objections can also serve a broader practical purpose. They may help clarify how a right is currently used or ensure the decree accurately reflects the current use on the ground. Common issues addressed in objections may include inaccurate descriptions of use, errors in place of use, issues related to point of diversion or purpose, abandonment due to non-use, or quantifying proper division of water for a property that has been subdivided since the original Statement of Claim was filed.

Failure to object, or to respond properly to an objection, can permanently affect your water right. Once the Water Court enters a final decree, modifying a water right becomes significantly more complex and may require a lengthy and formal process.

Water rights disputes can affect property value, agricultural operations, development potential, and long-term water security. Whether you are a rancher, homeowner, developer, or business owner, understanding your water rights and where they fit in the adjudication framework is essential.

At Worden Thane, we guide clients through every stage of the water right adjudication process, from reviewing Statements of Claim and helping clients resolve issue remarks, to filing and defending objections in the Water Court. If you have questions about your water rights or have received a notice related to the Montana Water Court adjudication, reach out to Worden Thane. Protecting your water rights today ensures clarity and certainty for generations to come.

By: Elizabeth Erickson and Cory Patrick