Mont. Code Ann. » TITLE 85. WATER USE · CHAPTER 2. SURFACE WATER AND GROUND WATER · Part 2. Adjudication of Water Rights

Mont. Code Ann. § 85-2-212

Order By Supreme Court

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  1. MCA Contents
  2. TITLE 85
  3. CHAPTER 2
  4. Part 2
  5. 85-2-212 Order by supreme court

TITLE 85. WATER USE

CHAPTER 2. SURFACE WATER AND GROUND WATER

Part 2. Adjudication of Water Rights

Order By Supreme Court

85-2-212. Order by supreme court. (1) The Montana supreme court shall within 10 days of the filing of the petition by the attorney general issue an order to file a statement of a claim of an existing water right in substantially the following form:

"WATER RIGHTS ORDER

FAILURE TO FILE A CLAIM AS REQUIRED BY LAW WILL RESULT IN A CONCLUSIVE PRESUMPTION THAT THE WATER RIGHT OR CLAIMED WATER RIGHT HAS BEEN ABANDONED. (This introductory sentence shall be printed in not less than 12-point boldface type.) This order is notice of commencement of procedures for the general adjudication of existing rights to the use of water and of the requirement to file a claim for certain existing rights to the use of water. Every person, including but not limited to an individual, partnership, association, public or private corporation, city or other municipality, county, state agency or the state of Montana, and federal agency of the United States of America on its own behalf or as trustee for any Indian or Indian tribe, asserting a claim to an existing right to the use of water arising prior to July 1, 1973, is ordered to file a statement of claim to that right with the department no later than June 30, 1983. Claims for stock and individual as opposed to municipal domestic uses based upon instream flow or ground water sources are exempt from this requirement; however, claims for such uses may be voluntarily filed. Claims filed with the department in the Powder River basin in a declaration filed pursuant to the order of the department of natural resources and conservation or a district court issued pursuant to sections 8 and 9 of Chapter 452, Laws of 1973, or under sections 3 and 4 of Chapter 485, Laws of 1975, are also exempt.

For further information, contact the department of natural resources and conservation, Helena, Montana, for a copy of the law and an explanation of it."

(2) Upon petition of the attorney general, the Montana supreme court shall issue the order called for in subsection (1) with a shorter claim filing period of not less than 1 year, subject to extension not beyond June 30, 1983, by the Montana supreme court upon petition of the attorney general, in those basins or subbasins where state adjudication jurisdiction is being or is likely to be challenged.

History: En. Sec. 16, Ch. 697, L. 1979.

Notes of Decisions
Cited in 8 cases, 1983–2011 · leading case: In Re the Adjudication of the Existing Rights to the Use of All the Water
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In Re the Adjudication of the Existing Rights to the Use of All the Water (2002) mont · cites it 8× “Claims for stock and individual as opposed to municipal domestic uses based upon instream flow or ground water sources are exempt from this requirement; however, claims for such uses may be voluntarily filed.”
Arizona v. San Carlos Apache Tribe of Ariz. (1983) scotus · cites it 4× “Laws 1906 -1907, codified *555 at Mont. Code Ann. § 85-2-212 (1981). [4] The Montana court issued the required order, and the United States was served with formal notice thereof.”
Montana Trout Unlimited v. Beaverhead Water Co. (2011) mont · cites it 6× “Section 85-2-212, MCA. The statutes direct the Water Court to consider "all relevant evidence in the determination and interpretation of existing water rights" and "any additional data" when compiling a temporary preliminary decree.”
State Ex Rel. Greely v. Water Court of State (1985) mont · cites it 5× “The petition sought an order directed to all claimants of water rights, including Indian reserved water rights (§ 85-2-701, MCA) and this Court issued such an order (§ 85-2-212, MCA) in 1979. That Order required every person, including but not limited to an individual,…”
State Ex Rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation (1985) mont · cites it 3× “On July 13, 1979, this Court ordered the statewide adjudication of all water rights in Montana to be commenced pursuant to Section 85-2-212, MCA. On August 3, 1984, the State of Montana, ex rel.”
Montana Trout Unlimited v. Montana Department of Natural Resources & Conservation (2006) mont · cites it 2× “Laws 452 ; Sections 85-2-212 to -907, MCA. ¶ 7 The Act mandated that all holders of claims to existing water rights file their claims with the DNRC.”
In Re the Adjudication of the Existing Water Rights of Clark Fork River (1992) mont · cites it 3× “Section 85-2-212, MCA. Thus, the clear purpose of statewide adjudication is to adjudicate water rights as they existed on July 1,1973.”
Axtell v. M.S. Consulting (1998) mont “Laws 452 ; Sections 85-2-212 to -907, MCA. The Act mandated that all holders of existing claims to water rights in a particular water basin file with the Montana Department of Natural Resources and Conservation (DNRC).”
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