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. § 85-2-233 (2026)

Hearing On Decrees Or Petition -- Procedure

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  1. MCA Contents
  2. TITLE 85
  3. CHAPTER 2
  4. Part 2
  5. 85-2-233 Hearing on decrees or petition -- procedure

TITLE 85. WATER USE

CHAPTER 2. SURFACE WATER AND GROUND WATER

Part 2. Adjudication of Water Rights

Hearing On Decrees Or Petition -- Procedure

85-2-233. Hearing on decrees or petition -- procedure. (1) (a) For good cause shown and subject to the provisions of subsection (9), a hearing must be held before the water judge on any objection to a temporary preliminary decree, a preliminary decree, or a supplemental preliminary decree by:

(i) the department;

(ii) a person named in the temporary preliminary decree, preliminary decree, or supplemental preliminary decree;

(iii) any person within the basin entitled to receive notice under 85-2-232(1); or

(iv) any other person who claims rights to the use of water from sources in other basins that are hydrologically connected to the sources within the decreed basin and who would be entitled to receive notice under 85-2-232 if the claim or claims were from sources within the decreed basin.

(b) For the purposes of this subsection (1), "good cause shown" means a written statement showing that a person has an ownership, leasehold, economic, or clearly demonstrated particularized interest in an existing water right, permit, certificate, state water reservation under 85-2-316, or right to receive water through an irrigation project and that the person's interest has been affected by the decree.

(c) A person does not waive the right to object to a preliminary decree by failing to object to a temporary preliminary decree issued before March 28, 1997. However, a person may not raise an objection to a matter in a preliminary decree if that person was a party to the matter when the matter was previously litigated and resolved as the result of an objection raised in a temporary preliminary decree unless the objection is allowed for any of the following reasons:

(i) mistake, inadvertence, surprise, or excusable neglect;

(ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial under Rule 59(b), Montana Rules of Civil Procedure;

(iii) fraud, misrepresentation, or other misconduct of an adverse party;

(iv) the judgment is void; or

(v) any other reason justifying relief from the operation of the judgment.

(d) After March 28, 1997, a person may not raise an objection or counterobjection to a matter contained in a subsequent decree issued under this part if the matter was contained in a prior decree issued under this part for which there was an objection and counterobjection period unless the objection is allowed for any of the following reasons:

(i) mistake, inadvertence, surprise, or excusable neglect;

(ii) newly discovered evidence that by due diligence could not have been discovered at the close of the objection period set forth in subsection (2);

(iii) fraud, misrepresentation, or other misconduct of an adverse party;

(iv) the temporary preliminary decree is void; or

(v) any other reason justifying relief from the operation of the prior decree issued under this part. The fact that a prior owner of a water right did not object or counterobject at a prior decree stage may not be a basis for a subsequent owner of the water right to object or counterobject absent a finding that one of the provisions in this subsection (1)(d) applies.

(2) Objections must be filed with the water judge within 180 days after entry of the temporary preliminary decree, preliminary decree, or supplemental preliminary decree. The water judge may, for good cause shown, extend this time limit up to two additional 90-day periods if application for an extension is made prior to expiration of the original 180-day period or any extension of it.

(3) Upon expiration of the time for filing objections under subsection (2), the water judge shall notify each party whose claim received an objection that an objection was filed. The notice must set forth the name of each objector and must allow an additional 60 days for the party whose claim received an objection to file a counterobjection to the claim or claims of the objector. Counterobjections must be limited to those claims that are included within the particular decree issued by the court.

(4) Objections and counterobjections must specify the paragraphs and pages containing the findings and conclusions to which objection is made. The request must state the specific grounds and evidence on which the objections are based.

(5) (a) Upon expiration of the time for filing counterobjections under subsection (3), the water judge shall notify each party named in the temporary preliminary decree, preliminary decree, or supplemental preliminary decree or that person's successor as documented in the department records and shall notify the attorney general that objections and counterobjections have been filed. The water judge shall fix a day when all parties who wish to participate in future proceedings are required to appear or file a statement. The water judge shall then set a date for a hearing. The water judge may conduct individual or consolidated hearings. A hearing must be conducted in the same manner as for other civil actions. At the order of the water judge, a hearing may be conducted by the water master, who shall prepare a report of the hearing as provided in Rule 53(e), Montana Rules of Civil Procedure.

(b) In conducting hearings pursuant to this chapter, a water judge may require the parties to participate in settlement conferences or may assign the matter to a mediator. Any settlement reached by the parties is subject to review and approval by a water judge.

(6) (a) After the issuance of a temporary preliminary decree or preliminary decree, notice must be published once a week for 3 consecutive weeks in two newspapers of general circulation in the basin where the decree was issued for:

(i) a motion to amend a statement of claim that may adversely affect other water rights; or

(ii) a motion to amend a timely objection that may adversely affect other water rights.

(b) The notice must specify that any response or objection to the proposed amendment must be filed within 45 days of the date of the last notice.

(c) The water judge may order any additional notice of the motion as the water judge considers necessary.

(d) The costs of the notice required pursuant to this subsection must be borne by the moving party.

(7) Failure to object under subsection (1) to a compact negotiated and ratified under 85-2-702 or 85-2-703 bars any subsequent cause of action in the water court.

(8) If the court sustains an objection to a compact, it may declare the compact void. The agency of the United States, the tribe, or the United States on behalf of the tribe party to the compact is permitted 6 months after the court's determination to file a statement of claim, as provided in 85-2-224, and the court shall issue a new preliminary decree in accordance with 85-2-231. However, any party to a compact declared void may appeal from that determination in accordance with those procedures applicable to 85-2-235, and the filing of a notice of appeal stays the period for filing a statement of claim as required under this subsection.

(9) Upon petition by a claimant, the water court may grant a motion for dismissal to an objection to a temporary preliminary or preliminary decree if the objection pertains to an element of a water right that was previously decreed and if dismissal is consistent with common-law principles of issue and claim preclusion.

(10) The provisions of subsection (9) do not apply to issues arising after entry of the previous decree, including but not limited to the issues of abandonment, expansion of the water right, and reasonable diligence.

(11) All issue remarks, as defined in 85-2-250, must be finally resolved before the issuance of a final decree.

History: En. Sec. 23, Ch. 697, L. 1979; amd. Sec. 7, Ch. 268, L. 1981; amd. Sec. 4, Ch. 667, L. 1985; amd. Sec. 3, Ch. 605, L. 1989; amd. Sec. 2, Ch. 421, L. 1995; amd. Sec. 4, Ch. 174, L. 1997; amd. Sec. 6, Ch. 526, L. 2005; amd. Sec. 2, Ch. 323, L. 2013; amd. Sec. 1, Ch. 283, L. 2015; amd. Sec. 7, Ch. 338, L. 2017.

Notes of Decisions
Cited in 12 cases (3 in the last 5 years), 1987–2024 · leading case: Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179.
Sort: Relevance Newest Treatment
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. · cites it 130× “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
Little Big Warm Ranch, LLC v. Doll, 2018 MT 300, 431 P.3d 342. · cites it 2× “"); § 85-2-403, MCA ; see also § 85-2-233, MCA (setting out the process for filing objections to temporary or preliminary decrees and the notice requirements).”
In re the Crow Water Compact, 2015 MT 353, 364 P.3d 584. · cites it 4× “Pursuant to § 85-2-233(1), MCA, Objectors need only show “good cause” to trigger the requirement for the Water Court to hold a hearing on the objection to the Compact.”
Eldorado Coop Canal Co. v. Ben Hog, 2016 MT 145, 373 P.3d 836. · cites it 3× “Section 85-2-233, MCA. The determinations made as a result of this objection and hearing process modify the water right claims established in the temporary preliminary decree.”
Eldorado Coop Canal Co. v. Lower Teton Jt. Objectors, 2016 MT 94, 369 P.3d 1034. · cites it 3× “Section 85-2-233, MCA. The final decree settles disputes with finality.”
In re the Activities of the Dep't of Nat. Resources & Conservation, 740 P.2d 1096 (Mont. 1987). · cites it 3× “Section 85-2-233, MCA. The requirement that the DNRC assume these rules, and at the same time be obliged to supply technical information and expertise to the water courts gives rise to the potential due process objections by the Tribes.”
Weinheimer Ranch, Inc. v. Pospisil, 2013 MT 87, 299 P.3d 327. · cites it 2× “The Water Court adopted the Water Master’s overall recommendation and denied the Ranch’s motion to amend the Claim’s historic rate and priority date.”
Parrot Ditch v. Ashcraft, 2024 MT 272, 558 P.3d 1183. · cites it 24× “8 Section 85-2-233(2), MCA (1995). The time period could be extended up to an additional 180 days.”
Matter of the Activities of DNRC, No. 86-397 (Mont. Dec. 6, 2006). · cites it 15× “Notices of objection must be filed in compliance with § 85-2-233, MCA. The water court shall provide objection forms.”
Mack v. Anderson, 2021 MT 25. · cites it 2× “” See also § 85-2-233(6), MCA. 10 may be contradicted and overcome by other evidence that proves, by a preponderance of the evidence, that the elements of the claim do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973.”
Benson v. Hopseker, 2016 MT 225N. · cites it 7× “¶8 For the first time on appeal, Claimants argue that the motion to amend process under § 85-2-233(6), MCA, “is not the correct procedure for the Water Court to issue a volume for one of the parties involved.”
Robert & Carol Hurd, 2022 MT 120, 512 P.3d 256. · cites it 5× “¶11 In 2021, the Hurds filed a motion in the Water Court citing § 85-2-233(6), MCA, which describes the process for a “motion to amend a statement of claim” after a temporary preliminary decree or preliminary decree has been issued for a basin, as is the case in Basin 43Q…”
Mont. Code Ann. § 85-2-233(1): 1 case
In re the Crow Water Compact, 2015 MT 353, 364 P.3d 584. “Pursuant to § 85-2-233(1), MCA, Objectors need only show “good cause” to trigger the requirement for the Water Court to hold a hearing on the objection to the Compact.”
Mont. Code Ann. § 85-2-233(1)(a): 1 case
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
Mont. Code Ann. § 85-2-233(1)(a)(iii): 1 case
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
Mont. Code Ann. § 85-2-233(1)(b): 1 case
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
Mont. Code Ann. § 85-2-233(2): 3 cases
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
Parrot Ditch v. Ashcraft, 2024 MT 272, 558 P.3d 1183. “8 Section 85-2-233(2), MCA (1995). The time period could be extended up to an additional 180 days.”
Matter of the Activities of DNRC, No. 86-397 (Mont. Dec. 6, 2006). “Notices of objection must be filed in compliance with § 85-2-233, MCA. The water court shall provide objection forms.”
Mont. Code Ann. § 85-2-233(3): 1 case
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
Mont. Code Ann. § 85-2-233(4): 3 cases
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
In re the Crow Water Compact, 2015 MT 353, 364 P.3d 584. “Pursuant to § 85-2-233(1), MCA, Objectors need only show “good cause” to trigger the requirement for the Water Court to hold a hearing on the objection to the Compact.”
Parrot Ditch v. Ashcraft, 2024 MT 272, 558 P.3d 1183. “8 Section 85-2-233(2), MCA (1995). The time period could be extended up to an additional 180 days.”
Mont. Code Ann. § 85-2-233(5): 1 case
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
Mont. Code Ann. § 85-2-233(5)(a): 1 case
Parrot Ditch v. Ashcraft, 2024 MT 272, 558 P.3d 1183. “8 Section 85-2-233(2), MCA (1995). The time period could be extended up to an additional 180 days.”
Mont. Code Ann. § 85-2-233(5)(b): 1 case
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
Mont. Code Ann. § 85-2-233(6): 5 cases
Mack v. Anderson, 2021 MT 25. “” See also § 85-2-233(6), MCA. 10 may be contradicted and overcome by other evidence that proves, by a preponderance of the evidence, that the elements of the claim do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973.”
Benson v. Hopseker, 2016 MT 225N. “¶8 For the first time on appeal, Claimants argue that the motion to amend process under § 85-2-233(6), MCA, “is not the correct procedure for the Water Court to issue a volume for one of the parties involved.”
Robert & Carol Hurd, 2022 MT 120, 512 P.3d 256. “¶11 In 2021, the Hurds filed a motion in the Water Court citing § 85-2-233(6), MCA, which describes the process for a “motion to amend a statement of claim” after a temporary preliminary decree or preliminary decree has been issued for a basin, as is the case in Basin 43Q…”
Matter of the Activities of DNRC, No. 86-397 (Mont. Dec. 6, 2006). “Notices of objection must be filed in compliance with § 85-2-233, MCA. The water court shall provide objection forms.”
Parrot Ditch v. Ashcraft, 2024 MT 272, 558 P.3d 1183. “8 Section 85-2-233(2), MCA (1995). The time period could be extended up to an additional 180 days.”
Mont. Code Ann. § 85-2-233(6)(a): 1 case
Parrot Ditch v. Ashcraft, 2024 MT 272, 558 P.3d 1183. “8 Section 85-2-233(2), MCA (1995). The time period could be extended up to an additional 180 days.”
Mont. Code Ann. § 85-2-233(6)(a)(i): 1 case
Parrot Ditch v. Ashcraft, 2024 MT 272, 558 P.3d 1183. “8 Section 85-2-233(2), MCA (1995). The time period could be extended up to an additional 180 days.”
Mont. Code Ann. § 85-2-233(l)(a): 1 case
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
Mont. Code Ann. § 85-2-233(l)(a)(iii): 1 case
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
Mont. Code Ann. § 85-2-233(l)(b): 1 case
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, 255 P.3d 179. “" ¶ 7 The Water Court decided the motions to dismiss MTU's objections by first applying § 85-2-233, MCA, which provides: (1)(a) For good cause shown .”
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