Montana Code Annotated

Mont. Code Ann. § 85-2-401 (2026)

Priority -- Recognition And Confirmation Of Changes In Appropriations Issued After July 1, 1973

✓ current as of May 2026

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TITLE 85. WATER USE

CHAPTER 2. SURFACE WATER AND GROUND WATER

Part 4. Utilization of Water

Priority -- Recognition And Confirmation Of Changes In Appropriations Issued After July 1, 1973

85-2-401. (Temporary) Priority -- recognition and confirmation of changes in appropriations issued after July 1, 1973. (1) As between appropriators, the first in time is the first in right. Priority of appropriation does not include the right to prevent changes by later appropriators in the condition of water occurrence, such as the increase or decrease of streamflow or the lowering of a water table, artesian pressure, or water level, if the prior appropriator can reasonably exercise the water right under the changed conditions.

(2) Priority of appropriation made under this chapter dates from the filing of an application for a permit with the department, except as otherwise provided in 85-2-301 through 85-2-303, 85-2-306, 85-2-310(7), and 85-2-313.

(3) Priority of appropriation perfected before July 1, 1973, must be determined as provided in part 2 of this chapter.

(4) All changes in appropriation rights 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 change in appropriation authorization by the department. (Terminates June 30, 2031--sec. 9, Ch. 244, L. 2023.)

85-2-401. (Effective July 1, 2031) Priority -- recognition and confirmation of changes in appropriations issued after July 1, 1973. (1) As between appropriators, the first in time is the first in right. Priority of appropriation does not include the right to prevent changes by later appropriators in the condition of water occurrence, such as the increase or decrease of streamflow or the lowering of a water table, artesian pressure, or water level, if the prior appropriator can reasonably exercise the water right under the changed conditions.

(3) Priority of appropriation perfected before July 1, 1973, must be determined as provided in part 2 of this chapter.

History: En. Sec. 27, Ch. 452, L. 1973; R.C.M. 1947, 89-891; amd. Sec. 33, Ch. 697, L. 1979; amd. Sec. 17, Ch. 497, L. 1997; amd. Sec. 17, Ch. 213, L. 2007; amd. Sec. 6, Ch. 251, L. 2009; amd. Sec. 5, Ch. 244, L. 2023.

Notes of Decisions

Cited in 13 cases (4 in the last 5 years), 1982–2024 · leading case: Kelly v. Teton Prairie LLC, 2016 MT 179 (Mont. 2016).

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Kelly v. Teton Prairie LLC, 2016 MT 179 (Mont. 2016). · cites it 14× “Whether the District Court correctly applied the Prior Appropriation Doctrine pursuant to § 85-2-401(1), MCA. 2. Whether the District Court correctly found that Teton Prairie failed to establish the necessary elements to raise the defense of Futile Call Doctrine.”

Confederated Salish & Kootenai Tribes v. Clinch, 2007 MT 63 (Mont. 2007). · cites it 10× “"[C]ouldn't the change in use affect somebody's groundwater, dry up a swamp or create a swamp where one wasn't before?" Indeed, § 85-2-401, MCA, speaks of a number of different "condition[s] of water occurrence, such as the increase or decrease of streamflow or the lowering of a…”

In Re the Adjudication of the Existing Rights to the Use of All the Water, 2002 MT 216 (Mont. 2002). · cites it 4× “2d 195, 198 ; § 85-2-401, MCA. In adjudicating individual claims for pre-1973 recreation, fish and wildlife, the Water Court will have to determine the validity of each claim, and as to those claims it finds valid, it will have to assign a priority date.”

Castillo v. Kunnemann, 642 P.2d 1019 (Mont. 1982). · cites it 6× “" We are buttressed in our contention that section 85-2-403 does not apply to existing rights because in the same part of the code, in section 85-2-401, MCA, it is provided that priority of appropriations for existing rights are to be determined by water courts.”

State Ex Rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754 (Mont. 1985). · cites it 3× “” Section 85-2-401(1), MCA. An appropriator is generally entitled to a specified quantity of water so long as actual, beneficial use is made of the water.”

Montana Power Co. v. .Carey, 685 P.2d 336 (Mont. 1984). · cites it 4× “Section 85-2-401, M.C.A., 1983. An irrigator who diverts more water than he can "actually and necessarily" use must return it to the stream for others.”

City of Helena v. Cmty. of Rimini, 2017 MT 145 (Mont. 2017). · cites it 4× “2d 748, 751 (1944)); accord § 85-2-401(1), MCA (“As between appropriators, the first in time is the first in right.”

In Re the Water Complaint of Kelly, 2010 MT 14 (Mont. 2010). · cites it 2× “Quoting § 85-2-401(1), MCA, the District Court noted that Amelia Kelly, as a senior user, could not assert her right to “prevent changes by later appropriators in the condition of water occurrence, such as the increase or decrease of stream flow or the lowering of a water table,…”

Schutter v. Bd. of Land Comm., 2024 MT 88 (Mont. 2024). · cites it 2× “Within that part, § 85-2-401(3), MCA, makes clear that “[p]riority of appropriation perfected before 21 July 1, 1973, must be determined as provided in part 2 of [Title 85, Ch.”

Twin Creeks v. Petrolia, 2022 MT 19 (Mont. 2022). · cites it 2× “” Section 1885, MCA (1895); § 89-807, RCM (1947); § 85-2-401, MCA (2019). 3 See §§ 1886-1887, MCA (1895) (requiring the appropriator to “proceed to prosecute the excavation or construction of the work” within 40 days, with “reasonable diligence to completion”).”

Debuff v. DNRC, 2021 MT 68 (Mont. 2021). · cites it 2× “]” Consistent therewith, § 85-2-401(1), MCA, provides that “[p]riority of appropriation does not include the right to prevent changes by later appropriators in the condition of water occurrence, such as the 26 increase or decrease of streamflow or the lowering of a water table,…”

Hill v. United States Dep't of the Interior (D.D.C. 2023). “Those rights, Plaintiff assert, are “more valuable than the rights of competing water users” thanks to their priority date of 1868.”

Show all 13 citing cases →

— Mont. Code Ann. § 85-2-401(1) — 6 cases

Kelly v. Teton Prairie LLC, 2016 MT 179 (Mont. 2016). “Whether the District Court correctly applied the Prior Appropriation Doctrine pursuant to § 85-2-401(1), MCA. 2. Whether the District Court correctly found that Teton Prairie failed to establish the necessary elements to raise the defense of Futile Call Doctrine.”

Confederated Salish & Kootenai Tribes v. Clinch, 2007 MT 63 (Mont. 2007). “"[C]ouldn't the change in use affect somebody's groundwater, dry up a swamp or create a swamp where one wasn't before?" Indeed, § 85-2-401, MCA, speaks of a number of different "condition[s] of water occurrence, such as the increase or decrease of streamflow or the lowering of a…”

State Ex Rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754 (Mont. 1985). “” Section 85-2-401(1), MCA. An appropriator is generally entitled to a specified quantity of water so long as actual, beneficial use is made of the water.”

City of Helena v. Cmty. of Rimini, 2017 MT 145 (Mont. 2017). “2d 748, 751 (1944)); accord § 85-2-401(1), MCA (“As between appropriators, the first in time is the first in right.”

In Re the Water Complaint of Kelly, 2010 MT 14 (Mont. 2010). “Quoting § 85-2-401(1), MCA, the District Court noted that Amelia Kelly, as a senior user, could not assert her right to “prevent changes by later appropriators in the condition of water occurrence, such as the increase or decrease of stream flow or the lowering of a water table,…”

— Mont. Code Ann. § 85-2-401(3) — 1 case

Schutter v. Bd. of Land Comm., 2024 MT 88 (Mont. 2024). “Within that part, § 85-2-401(3), MCA, makes clear that “[p]riority of appropriation perfected before 21 July 1, 1973, must be determined as provided in part 2 of [Title 85, Ch.”

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