Mont. Code Ann. » TITLE 85. WATER USE · CHAPTER 2. SURFACE WATER AND GROUND WATER · Part 3. Appropriations, Permits, and Certificates of Water Rights
Montana Code Annotated

Mont. Code Ann. § 85-2-301 (2026)

Right To Appropriate -- Recognition And Confirmation Of Permits Issued After July 1, 1973

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  1. MCA Contents
  2. TITLE 85
  3. CHAPTER 2
  4. Part 3
  5. 85-2-301 Right to appropriate -- recognition and confirmation of permits issued after July 1, 1973

TITLE 85. WATER USE

CHAPTER 2. SURFACE WATER AND GROUND WATER

Part 3. Appropriations, Permits, and Certificates of Water Rights

Right To Appropriate -- Recognition And Confirmation Of Permits Issued After July 1, 1973

85-2-301. Right to appropriate -- recognition and confirmation of permits issued after July 1, 1973. (1) After July 1, 1973, a person may not appropriate water except as provided in this chapter. A person may appropriate water only for a beneficial use.

(2) (a) Only the department may appropriate water by permit for transport outside the following river basins:

(i) the Clark Fork River and its tributaries to its confluence with Lake Pend Oreille in Idaho;

(ii) the Kootenai River and its tributaries to its confluence with Kootenay Lake in British Columbia;

(iii) the St. Mary River and its tributaries to its confluence with the Oldman River in Alberta;

(iv) the Little Missouri River and its tributaries to its confluence with Lake Sakakawea in North Dakota;

(v) the Missouri River and its tributaries to its confluence with the Yellowstone River in North Dakota; and

(vi) the Yellowstone River and its tributaries to its confluence with the Missouri River in North Dakota.

(b) The department may lease water subject to this subsection (2) under the provisions of 85-2-141.

(3) A right to appropriate water may not be acquired by any other method, including by adverse use, adverse possession, prescription, or estoppel. The method prescribed by this chapter is exclusive.

(4) All permit actions of the department after July 1, 1973, are recognized and confirmed subject to this part and any terms, conditions, and limitations placed on a permit by the department.

(5) Pursuant to 85-20-1902, the provisions of this section do not apply within the exterior boundaries of the Flathead Indian reservation.

History: En. Sec. 16, Ch. 452, L. 1973; amd. Sec. 2, Ch. 238, L. 1974; amd. Sec. 8, Ch. 485, L. 1975; amd. Sec. 4, Ch. 416, L. 1977; amd. Sec. 1, Ch. 470, L. 1977; R.C.M. 1947, 89-880(1); amd. Sec. 3, Ch. 573, L. 1985; amd. Sec. 5, Ch. 497, L. 1997; amd. Sec. 1, Ch. 112, L. 2011; amd. Sec. 6, Ch. 294, L. 2015.

Notes of Decisions
Cited in 13 cases (2 in the last 5 years), 1982–2025 · leading case: Clark Fork Coalition v. Montana Wel, 2016 MT 229, 380 P.3d 771.
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Clark Fork Coalition v. Montana Wel, 2016 MT 229, 380 P.3d 771. · cites it 6× “Section 85-2-301, MCA. The primary function of this permit based system is the protection of senior water rights from encroachment by prospective junior appropriators adversely affecting those rights.”
State Ex Rel. Greely v. Water Court of State, 691 P.2d 833 (Mont. 1985). · cites it 6× “Section 85-2-301, MCA. A question has been raised as to the manner in which Indian claims for reserved water rights, which have not been resolved by compact, should be treated in view of the provision that Indian claims "shall be given treatment similar to that given to all…”
79 Ranch, Inc. v. Pitsch, 666 P.2d 215 (Mont. 1983). · cites it 6× “, 1947 (now section 85-2-301, MCA.) Nothing on the record suggests Pitsch complied with the procedures of the Water Use Act.”
Bostwick Props., Inc. v. Montana Dep't of Nat. Resources & Conservation, 2013 MT 48, 296 P.3d 1154. · cites it 9× “Sections 85-2-301 to 85-2-302, MCA. Bostwick could not use this runoff water as mitigation water.”
In re the Beneficial Water Use Permit Nos. 66459-76L, Ciotti 64988-g76L, Starner, 923 P.2d 1073 (Mont. 1996). · cites it 3× “” Section 85-2-301, MCA, provides that a person may not appropriate water except as provided in chapter 2 of the Water Use Act.”
Grimsley v. Est. of Spencer, 670 P.2d 85 (Mont. 1983). · cites it 2× “If plaintiffs wish to claim any or all of these waters, they will have to adhere to the requirements of sections 85-2-301, MCA, et seq., relating to applications for appropriation.”
In Re the Adjudication of the Existing Rights of Musselshell River Drainage, 840 P.2d 577 (Mont. 1992). · cites it 3× “” Section 85-2-301(3), MCA. These statutes are perfectly clear and clearly negate appellants’ argument.”
Castillo v. Kunnemann, 642 P.2d 1019 (Mont. 1982). · cites it 2× “Additionally, appropriations of water rights after July 1, 1973 could only be made through an application and permit procedure governed by the Department of Natural Resources and Conservation.”
Advocates v. State, 2022 MT 46, 505 P.3d 825. · cites it 4× “Water rights perfected prior to that date, by contrast, are not subject to the WUA’s permit requirements and are protected under the law as it existed prior to the adoption of the WUA, subject to adjudication in the Water Court.”
Matter of Beneficial Water Use Permits, 923 P.2d 1073 (Mont. 1996). · cites it 3× “" Section 85-2-301, MCA, provides that a person may not appropriate water except as provided in chapter 2 of the Water Use Act.”
Trout Unlimited v. DNRC, 2025 MT 1, 561 P.3d 995. · cites it 4× “” Section 85-2-301, MCA. Title 85, Chapter 2, 35 MCA, sets forth the permitting requirements and process for appropriating water.”
Scott Ranch, LLC, 2017 MT 230, 402 P.3d 1207. “” Section 85-2-102(12), MCA. For water rights based on appropriations after July 1,1973, the Act provides for a mandatory permitting process administered by the Department.”
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Mont. Code Ann. § 85-2-301(1): 2 cases
Advocates v. State, 2022 MT 46, 505 P.3d 825. “Water rights perfected prior to that date, by contrast, are not subject to the WUA’s permit requirements and are protected under the law as it existed prior to the adoption of the WUA, subject to adjudication in the Water Court.”
Trout Unlimited v. DNRC, 2025 MT 1, 561 P.3d 995. “” Section 85-2-301, MCA. Title 85, Chapter 2, 35 MCA, sets forth the permitting requirements and process for appropriating water.”
Mont. Code Ann. § 85-2-301(3): 1 case
In Re the Adjudication of the Existing Rights of Musselshell River Drainage, 840 P.2d 577 (Mont. 1992). “” Section 85-2-301(3), MCA. These statutes are perfectly clear and clearly negate appellants’ argument.”
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