Montana Code Annotated

Mont. Code Ann. § 85-2-231 (2026)

Temporary Preliminary Decree, Preliminary Decree, And Supplemental Preliminary Decree

✓ current as of May 2026

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TITLE 85. WATER USE

CHAPTER 2. SURFACE WATER AND GROUND WATER

Part 2. Adjudication of Water Rights

Temporary Preliminary Decree, Preliminary Decree, And Supplemental Preliminary Decree

85-2-231. Temporary preliminary decree, preliminary decree, and supplemental preliminary decree. (1) A water judge may issue a temporary preliminary decree prior to the issuance of a preliminary decree if the temporary preliminary decree is necessary for the orderly adjudication or administration of water rights.

(2) (a) The water judge shall issue a preliminary decree. The preliminary decree must be based on:

(i) the statements of claim before the water judge, including all claims filed pursuant to 85-2-222 for a preliminary decree issued after June 30, 2019;

(ii) the data submitted by the department;

(iii) the contents of compacts approved by the Montana legislature and the tribe or federal agency or, lacking an approved compact, the filings for federal and Indian reserved rights; and

(iv) any additional data obtained by the water judge.

(b) The preliminary decree must be issued within 90 days after the close of the special filing period set out in 85-2-702(3) or as soon after the close of that period as is reasonably feasible.

(c) In a basin in which a water judge has issued a preliminary decree prior to July 1, 2019, the water judge shall issue a supplemental preliminary decree that includes but is not limited to claims for exempt rights, as defined in 85-2-222, that were not included in a preliminary decree and for which notice has not been provided under 85-2-233(6).

(d) The water judge may issue an interlocutory decree if an interlocutory decree is otherwise necessary for the orderly administration of water rights.

(3) A temporary preliminary decree may be issued for any hydrologically interrelated portion of a water division, including but not limited to a basin, subbasin, drainage, subdrainage, stream, or single source of supply of water, or any claim or group of claims at a time different from the issuance of other temporary preliminary decrees.

(4) The temporary preliminary decree, preliminary decree, or supplemental preliminary decree must contain the information and make the determinations, findings, and conclusions required for the final decree under 85-2-234.

(5) If the water judge is satisfied that the report of the water master meets the requirements for the preliminary decree and is satisfied with the conclusions contained in the report, the water judge shall adopt the report as the preliminary decree. If the water judge is not satisfied, the water judge may recommit the report to the master with instructions or modify the report and issue the preliminary decree.

(6) The department shall examine claims in basins that were verified rather than examined as ordered by the water court. The objection and hearing provisions of Title 85, chapter 2, part 2, apply to these claims. (Subsection (6) terminates June 30, 2028--sec. 10, Ch. 269, L. 2015.)

History: En. Secs. 22, 27, Ch. 697, L. 1979; amd. Sec. 6, Ch. 268, L. 1981; amd. Sec. 1, Ch. 394, L. 1985; amd. Sec. 3, Ch. 667, L. 1985; amd. Sec. 1, Ch. 605, L. 1989; amd. Sec. 3, Ch. 174, L. 1997; amd. Sec. 12, Ch. 288, L. 2005; amd. Sec. 2, Ch. 269, L. 2015; amd. Sec. 5, Ch. 338, L. 2017; amd. Sec. 1, Ch. 211, L. 2019; amd. Sec. 1, Ch. 154, L. 2021.

Notes of Decisions

Cited in 9 cases (1 in the last 5 years), 1986–2026 · leading case: McDonald v. State, 722 P.2d 598 (Mont. 1986).

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McDonald v. State, 722 P.2d 598 (Mont. 1986). · cites it 26× “We determine here that the provisions of § 85-2-234, MCA, applicable to final decrees issued by the Water Courts (and also applicable to preliminary decrees under § 85-2-231, MCA), requiring the final decree to state "the amount of water, rate and volume included in the [water]…”

In Re the Adjudication of the Existing Rights to the Use of All the Water, Both Surface & Underground, Within the Sage Creek Drainage Area, 763 P.2d 644 (Mont. 1988). · cites it 10× “) “ ‘Temporary Preliminary Decree’ means a water court prior to the issuance of the preliminary as necessary for the orderly administration of existing water rights pursuant to Section 85-2-231, MCA.” (Rule 1.111(51), Rules, supra.”

Eldorado Coop Canal Co. v. Ben Hog, 2016 MT 145 (Mont. 2016). · cites it 5× “¶22 Here, it is undisputed that the Water Court properly issued a temporary preliminary decree for Basin 410 pursuant to § 85-2-231, MCA. The Water Court then conducted a hearing on the objections to Eldorado’s water rights as established in the temporary preliminary decree.”

In Re the Crow Water Compact, 2015 MT 217 (Mont. 2015). “¶13 Upon motion of the Crow Tribe and the United States, the Water Court dismissed the Allottees’ objections to the Compact and denied their request for a stay.”

State Ex Rel. Jones v. Dist. Court of the Fourth Jud. Dist. Ex Rel. Missoula Cnty., 938 P.2d 1312 (Mont. 1997). · cites it 2× “If the Updated Decree is not set aside the Water Court will have the authority to use, and is expected to rely upon, the Updated Decree to determine the ownership (as well as other details) of Carlton Creek decreed rights pursuant to § 85-2-231, MCA. 8. The District Court…”

Matter of the Activities of Dnrc (Mont. 2006). · cites it 6× “14 (54) “Preliminary Decree” means the preliminary water court determination of existing water rights within a basin or subbasin as described in § 85-2-231, MCA, which precedes the final decree.”

In the Matter of: Petition for Water Commiss., 2026 MT 16 (Mont. 2026). · cites it 3× “4 See In the Water Court for the State of Montana Upper Missouri Division Missouri River Above Holter Dam Basin (41I) Preliminary Decree (June 22, 2022) (“These Findings of Fact, Conclusions of Law, and abstracts define the nature and extent of each claimed existing water right…”

Fellows v. Giese v. Saylor, 2016 MT 45 (Mont. 2016). · cites it 2× “As such, all the existing rights in the sources of water at issue here have not been conclusively determined pursuant to Title 85, chapter 2, part 2, MCA. See § 85-2-227(1), MCA (providing in pertinent part, “For purposes of administering water rights, the provisions of a…”

— Mont. Code Ann. § 85-2-231(1) — 3 cases

Eldorado Coop Canal Co. v. Ben Hog, 2016 MT 145 (Mont. 2016). “¶22 Here, it is undisputed that the Water Court properly issued a temporary preliminary decree for Basin 410 pursuant to § 85-2-231, MCA. The Water Court then conducted a hearing on the objections to Eldorado’s water rights as established in the temporary preliminary decree.”

Fellows v. Giese v. Saylor, 2016 MT 45 (Mont. 2016). “As such, all the existing rights in the sources of water at issue here have not been conclusively determined pursuant to Title 85, chapter 2, part 2, MCA. See § 85-2-227(1), MCA (providing in pertinent part, “For purposes of administering water rights, the provisions of a…”

— Mont. Code Ann. § 85-2-231(2) — 1 case

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