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

Mont. Code Ann. § 85-2-227 (2026)

Claim To Constitute Prima Facie Evidence -- Relevant Evidence -- Abandonment -- Criteria For Presumption Of Municipal Nonabandonment

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 85
  3. CHAPTER 2
  4. Part 2
  5. 85-2-227 Claim to constitute prima facie evidence -- relevant evidence -- abandonment -- criteria for presumption of municipal nonabandonment

TITLE 85. WATER USE

CHAPTER 2. SURFACE WATER AND GROUND WATER

Part 2. Adjudication of Water Rights

Claim To Constitute Prima Facie Evidence -- Relevant Evidence -- Abandonment -- Criteria For Presumption Of Municipal Nonabandonment

85-2-227. Claim to constitute prima facie evidence -- relevant evidence -- abandonment -- criteria for presumption of municipal nonabandonment. (1) For purposes of adjudicating rights pursuant to this part, a claim of an existing right filed in accordance with 85-2-221 or an amended claim of existing right constitutes prima facie proof of its content until the issuance of a final decree. For purposes of administering water rights, the provisions of a temporary preliminary decree or a preliminary decree, as modified after objections and hearings, supersede a claim of existing right until a final decree is issued.

(2) A water judge may consider all relevant evidence in the determination and interpretation of existing water rights. Relevant evidence under this part may include admissible evidence arising before or after July 1, 1973.

(3) Subject to the provisions of subsection (4), a water judge may determine all or part of an existing water right to be abandoned based on a consideration of all admissible evidence that is relevant, including, without limitation, evidence relating to acts or intent occurring in whole or in part after July 1, 1973.

(4) In a determination of abandonment made under subsection (3), the legislature finds that a water right that is claimed for municipal use by a city, town, or other public or private entity that operates a public water supply system, as defined in 75-6-102, is presumed to not be abandoned if the city, town, or other private or public entity has used any part of the water right or municipal water supply and there is admissible evidence that the city, town, or other public or private entity also has:

(a) obtained a filtration waiver under the federal Safe Drinking Water Act, 42 U.S.C. 300(f), et seq.;

(b) acquired, constructed, or regularly maintained diversion or conveyance structures for the future municipal use of the water right;

(c) conducted a formal study, prepared by a registered professional engineer or qualified consulting firm, that includes a specific assessment that using the water right for municipal supply is feasible and that the amount of the water right is reasonable for foreseeable future needs; or

(d) maintained facilities connected to the municipal water supply system to apply the water right to:

(i) an emergency municipal water supply;

(ii) a supplemental municipal water supply; or

(iii) any other use approved by the department under Title 85, chapter 2, part 4.

History: En. Sec. 15, Ch. 697, L. 1979; amd. Sec. 5, Ch. 604, L. 1989; amd. Sec. 2, Ch. 174, L. 1997; amd. Sec. 1, Ch. 213, L. 1999; amd. Sec. 1, Ch. 17, L. 2005.

Notes of Decisions
Cited in 32 cases (5 in the last 5 years), 1987–2026 · leading case: City of Helena v. Cmty. of Rimini, 2017 MT 145 (Mont. 2017).
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City of Helena v. Cmty. of Rimini, 2017 MT 145 (Mont. 2017). · cites it 228× “¶25 The Water Court first determined that the City met the requirements under subsection (4)(b) of § 85-2-227, MCA, because the court found that the City’s construction of the diversion pipeline in 1921 evidenced an intention to plan for future growth.”
Curry v. Pondera Cnty. Canal & Reservoir Co., 2016 MT 77 (Mont. 2016). · cites it 23× “Section 85-2-227( 1), MCA. This may be overcome if an objector proves, by a preponderance of the evidence, that the claim does not accurately reflect the water right as it existed prior to the WUA.”
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151 (Mont. 2011). · cites it 6× “This includes, for example, the power to consider "relevant evidence" (§ 85-2-227, MCA); the power to appoint water masters (§§ 3-7-301 and -311, MCA); and the power to require mediated settlement conferences (§ 85-2-233(5)(b), MCA).”
In Re Teton Coop. Reservoir Co., 2018 MT 66 (Mont. 2018). · cites it 6× “" Section 85-2-227(1), MCA ; W.R. Adj. R. 19.”
Eldorado Coop Canal Co. v. Ben Hog, 2016 MT 145 (Mont. 2016). · cites it 8× “” Section 85-2-227(1), MCA (emphasis added).”
Lohmeier v. State, Montana Dep't of Nat. Resources & Conservation, 2008 MT 307 (Mont. 2008). · cites it 5× “Section 85-2-227(4), MCA (2005), which addresses criteria for presumption of municipal nonabandonment, describes municipal use as “use by a city, town, or other public or private entity that operates a public water supply system.”
Danreuther v. Farmers Coop, 2017 MT 241 (Mont. 2017). · cites it 7× “410 156804-00, 410 156805-00, and 410 156806-00 represent claims to a total flow from the Teton River of 6.9 cfs. ¶16 The Water Court reached conclusions of law based upon these *20 facts.”
Eldorado Coop Canal Co. v. Lower Teton Jt. Objectors, 2016 MT 94 (Mont. 2016). · cites it 8× “Despite the fact that the Master did not outright state the objectors met the burden of proof under § 85-2-227(1), MCA, we may draw an inference that the Master decided the burden was met based on his deviation in volume from Eldorado’s Statement of Claim.”
In re Klamert, 443 P.3d 379 (Mont. 2019). · cites it 6× “" Section 85-2-227(2), MCA. While relevant, the commissioner and FIA records are not dispositive.”
In Re the Crow Water Compact, 2015 MT 217 (Mont. 2015). · cites it 3× “” Section 85-2-227(1), MCA. ¶25 Therefore, the Water Court did not err by not applying Rule 12(b)(6), M.”
In re United States, 445 P.3d 828 (Mont. 2019). · cites it 20× “5 ¶14 Importantly, § 85-2-227, MCA, the statute establishing presumptive nonabandonment of municipality water rights, which is at the core of this case, provides that "a water judge may determine all or part of an existing water right to be abandoned based on a consideration of…”
Axtell v. M.S. Consulting, 1998 MT 64 (Mont. 1998). · cites it 3× “Section 85-2-227, MCA. At the present time, the process of water rights adjudication under the Act is ongoing in Montana.”
Show all 32 citing cases →
— Mont. Code Ann. § 85-2-227(1) — 14 cases
Curry v. Pondera Cnty. Canal & Reservoir Co., 2016 MT 77 (Mont. 2016). “Section 85-2-227( 1), MCA. This may be overcome if an objector proves, by a preponderance of the evidence, that the claim does not accurately reflect the water right as it existed prior to the WUA.”
In Re Teton Coop. Reservoir Co., 2018 MT 66 (Mont. 2018). “" Section 85-2-227(1), MCA ; W.R. Adj. R. 19.”
Eldorado Coop Canal Co. v. Ben Hog, 2016 MT 145 (Mont. 2016). “” Section 85-2-227(1), MCA (emphasis added).”
Danreuther v. Farmers Coop, 2017 MT 241 (Mont. 2017). “410 156804-00, 410 156805-00, and 410 156806-00 represent claims to a total flow from the Teton River of 6.9 cfs. ¶16 The Water Court reached conclusions of law based upon these *20 facts.”
Eldorado Coop Canal Co. v. Lower Teton Jt. Objectors, 2016 MT 94 (Mont. 2016). “Despite the fact that the Master did not outright state the objectors met the burden of proof under § 85-2-227(1), MCA, we may draw an inference that the Master decided the burden was met based on his deviation in volume from Eldorado’s Statement of Claim.”
— Mont. Code Ann. § 85-2-227(2) — 2 cases
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151 (Mont. 2011). “This includes, for example, the power to consider "relevant evidence" (§ 85-2-227, MCA); the power to appoint water masters (§§ 3-7-301 and -311, MCA); and the power to require mediated settlement conferences (§ 85-2-233(5)(b), MCA).”
In re Klamert, 443 P.3d 379 (Mont. 2019). “" Section 85-2-227(2), MCA. While relevant, the commissioner and FIA records are not dispositive.”
— Mont. Code Ann. § 85-2-227(3) — 2 cases
In re Klamert, 443 P.3d 379 (Mont. 2019). “" Section 85-2-227(2), MCA. While relevant, the commissioner and FIA records are not dispositive.”
In re United States, 445 P.3d 828 (Mont. 2019). “5 ¶14 Importantly, § 85-2-227, MCA, the statute establishing presumptive nonabandonment of municipality water rights, which is at the core of this case, provides that "a water judge may determine all or part of an existing water right to be abandoned based on a consideration of…”
— Mont. Code Ann. § 85-2-227(4) — 4 cases
City of Helena v. Cmty. of Rimini, 2017 MT 145 (Mont. 2017). “¶25 The Water Court first determined that the City met the requirements under subsection (4)(b) of § 85-2-227, MCA, because the court found that the City’s construction of the diversion pipeline in 1921 evidenced an intention to plan for future growth.”
Lohmeier v. State, Montana Dep't of Nat. Resources & Conservation, 2008 MT 307 (Mont. 2008). “Section 85-2-227(4), MCA (2005), which addresses criteria for presumption of municipal nonabandonment, describes municipal use as “use by a city, town, or other public or private entity that operates a public water supply system.”
In re United States, 445 P.3d 828 (Mont. 2019). “5 ¶14 Importantly, § 85-2-227, MCA, the statute establishing presumptive nonabandonment of municipality water rights, which is at the core of this case, provides that "a water judge may determine all or part of an existing water right to be abandoned based on a consideration of…”
Trout Unlimited v. Water Court (Mont. 2022).
— Mont. Code Ann. § 85-2-227(4)(a) — 1 case
City of Helena v. Cmty. of Rimini, 2017 MT 145 (Mont. 2017). “¶25 The Water Court first determined that the City met the requirements under subsection (4)(b) of § 85-2-227, MCA, because the court found that the City’s construction of the diversion pipeline in 1921 evidenced an intention to plan for future growth.”
— Mont. Code Ann. § 85-2-227(4)(b) — 1 case
City of Helena v. Cmty. of Rimini, 2017 MT 145 (Mont. 2017). “¶25 The Water Court first determined that the City met the requirements under subsection (4)(b) of § 85-2-227, MCA, because the court found that the City’s construction of the diversion pipeline in 1921 evidenced an intention to plan for future growth.”
— Mont. Code Ann. § 85-2-227(4)(c) — 1 case
City of Helena v. Cmty. of Rimini, 2017 MT 145 (Mont. 2017). “¶25 The Water Court first determined that the City met the requirements under subsection (4)(b) of § 85-2-227, MCA, because the court found that the City’s construction of the diversion pipeline in 1921 evidenced an intention to plan for future growth.”
— Mont. Code Ann. § 85-2-227(4)(d)(i) — 1 case
City of Helena v. Cmty. of Rimini, 2017 MT 145 (Mont. 2017). “¶25 The Water Court first determined that the City met the requirements under subsection (4)(b) of § 85-2-227, MCA, because the court found that the City’s construction of the diversion pipeline in 1921 evidenced an intention to plan for future growth.”
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