Montana water judges, DNRC and practitioners outline shifting roles as final decrees spread

Chief Water Judge Steve Brown told the Water Policy Interim Committee that Montana's prior-appropriation system and the Water Use Act require centralized adjudication of pre-1973 rights and that the water court's role has been to quantify and confirm those rights. He said the court's objective is to convert fragmented district-court decrees into standardized water-court decrees and then support implementation.

"Priority is what governs in the state," Brown said, adding that beneficial use remains both the measure and limit of every water right. He traced the court's statutory lineage to the 1973 Water Use Act and said the water court was created to replace inconsistent district-court decrees.

Associate Water Judge Bina Peters described how the water court now fields requests from district courts for distribution tabulations and issues orders to DNRC to prepare tabulations and maps that water commissioners use. "Our deputy clerk gathers those requests, keeps record of the distribution projects and makes sure that we are able to provide those tabulations that the district court needs," Peters said. She told the committee the court fielded 55 tabulation requests in 2025 and is working to standardize petition forms and orders so district clerks and commissioners have clearer guidance.

Todd Netto, DNRC's adjudication enforcement and distribution bureau chief, said DNRC will remain essential as final decrees are issued. "When final decrees are complete, the department will issue certificates of water rights to each person decreed in those final decrees," he said, and added DNRC expects to process roughly 12,000 permits and 5,000 change applications as part of verification and certificate issuance over the next decade.

Private practitioners at the panel warned of jurisdictional friction as final decrees proliferate. Diana Abbott, who described practitioner tools used in district court, emphasized that a "dissatisfied water user" complaint (codified at 85-5-301) is a limited, expedited vehicle that addresses whether a water commissioner's method of distribution is administrable under the governing decree, not a tool for relitigating underlying water-right validity. Benjamin Sudduth, a Bozeman practitioner, said the expanding issuance of final decrees shifts some controversies to district courts and can impose high costs and complexity on unrepresented users.

Sudduth said a source of practical confusion is that the certification process (statute 85-2-406) permits district courts to send discrete questions about rights to the water court when an immediate distribution dispute cannot wait for a final decree, but the mechanics of what the district court should send and how the water court responds vary from case to case.

Committee members pressed presenters about compact-related venue questions and whether disputes might go to federal court under the Montana Water Rights Protection Act (the CSKT compact legislation). Brown and others said those issues remain in active litigation and may require statutory interpretation or future legislative clarification.

The presenters and members repeatedly urged clearer statutory direction and administrative tools to reduce costs for parties and to help district courts manage distribution and abandonment matters as more basins reach final decree. Brown said the water court's immediate goal is finishing decrees in the remaining basins and transitioning to objection resolution and post-decree administration.

The committee did not take a formal policy vote on these changes; members asked staff to consider follow-up briefings on compacts and suggested potential statutory clarifications to reduce jurisdictional confusion.