Montana Code Annotated

Mont. Code Ann. § 85-2-404 (2026)

Abandonment Of Appropriation Right

✓ 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

Abandonment Of Appropriation Right

85-2-404. Abandonment of appropriation right. (1) If an appropriator ceases to use all or a part of an appropriation right with the intention of wholly or partially abandoning the right or if the appropriator ceases using the appropriation right according to its terms and conditions with the intention of not complying with those terms and conditions, the appropriation right is, to that extent, considered abandoned and must immediately expire.

(2) If an appropriator ceases to use all or part of an appropriation right or ceases using the appropriation right according to its terms and conditions for a period of 10 successive years and there was water available for use, there is a prima facie presumption that the appropriator has abandoned the right for the part not used.

(3) If an appropriator ceases to use all or part of an appropriation right in compliance with a candidate conservation agreement initiated pursuant to 50 CFR 17.32 or because the land to which the water is applied to a beneficial use is contracted under a state or federal conservation set-aside program:

(a) the set-aside and resulting reduction in use of the appropriation right does not represent an intent by the appropriator to wholly or partially abandon the appropriation right or to not comply with the terms and conditions attached to the right; and

(b) the period of nonuse that occurs for part or all of the appropriation right as a result of the contract may not create or may not be added to any previous period of nonuse to create a prima facie presumption of abandonment.

(4) (a) If an appropriator ceases to use all or part of an appropriation right during a drought, the reduction in use or the nonuse of the appropriation right does not by itself represent an intent by the appropriator to wholly or partially abandon the appropriation right or to not comply with the terms and conditions attached to the appropriation right if:

(i) the place of diversion or use is within a county experiencing D1 moderate drought or worse, as designated by the United States drought monitor; and

(ii) the reduction in use or the nonuse is made in compliance with a local, regional, or state drought plan filed with the department that identifies a metric or criterion that compels the voluntary reduction or cessation of water diversions in a geographic area or for water rights included in the drought plan.

(b) The owner of a water right who reduces or ceases all or part of the use of the water right in accordance with this subsection (4) shall file a report on a form prescribed by the department by December 30 of the year in which the water right use was reduced or ceased.

(5) The lease of an existing right pursuant to 85-2-436, a temporary change in appropriation right pursuant to 85-2-407 or 85-2-408, or a temporary lease of an appropriation right pursuant to 85-2-428 does not constitute an abandonment or serve as evidence that could be used to establish an abandonment of any part of the right.

(6) Subsections (1) and (2) do not apply to existing rights until they have been finally determined in accordance with part 2 of this chapter.

History: En. Sec. 30, Ch. 452, L. 1973; R.C.M. 1947, 89-894; amd. Sec. 1, Ch. 339, L. 1987; amd. Sec. 3, Ch. 658, L. 1989; amd. Sec. 2, Ch. 435, L. 1991; amd. Sec. 8, Ch. 487, L. 1995; amd. Sec. 5, Ch. 174, L. 1997; amd. Sec. 4, Ch. 85, L. 2005; amd. Sec. 1, Ch. 355, L. 2007; amd. Sec. 3, Ch. 347, L. 2025; amd. Sec. 1, Ch. 497, L. 2025.

Notes of Decisions

Cited in 11 cases (1 in the last 5 years), 1982–2022 · leading case: State Ex Rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754 (Mont. 1985).

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State Ex Rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754 (Mont. 1985). · cites it 9× ““As between appropriators, the first in time is the first in right.” 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.”

State Ex Rel. Greely v. Water Court of State, 691 P.2d 833 (Mont. 1985). · cites it 6× “(1) Beneficial Use State law defines beneficial use, specifies that a statement of the purpose of the use shall be included in each claim, and requires each final decree to state the purpose for which the water included in the right is used.”

79 Ranch, Inc. v. Pitsch, 666 P.2d 215 (Mont. 1983). · cites it 6× “It should be noted that in section 85-2-404, MCA, the legislature has provided that ten successive years of nonuse while water was available creates a prima facie presumption of abandonment.”

Confederated Salish & Kootenai Tribes v. Clinch, 2007 MT 63 (Mont. 2007). · cites it 4× “See § 85-2-404, MCA. Generally, an appropriator of a state-created right must divert, impound or withdraw water to appropriate.”

Castillo v. Kunnemann, 642 P.2d 1019 (Mont. 1982). · cites it 6× “For example, section 85-2-404, MCA, regarding abandonment of water rights states: "(1) If an appropriator ceases to use all or a part of his appropriation right with the intention of wholly or partially abandoning the right or if he ceases using his appropriation right according…”

In re Klamert, 443 P.3d 379 (Mont. 2019). · cites it 7× “2d at 218 ; § 85-2-404, MCA. A finding of abandonment requires both nonuse and intent to abandon.”

In Re the Adjudication of the Existing Rights to the Use of All the Water, Both Surface & Underground Within the Clark Fork River Drainage Area Above the Blackfoot River, 908 P.2d 1353 (Mont. 1995). · cites it 4× “The statutory guidelines for the determination of abandonment of a water right set forth in § 85-2-404, MCA, characterize all water rights as “appropriation rights,” and make no distinction between the uses of water.”

Town of Eureka v. Off. of the State Eng'r, 826 P.2d 948 (Nev. 1992). “§ 37-92-402 (11) (1990); Mont. Code Ann. § 85-2-404 (2) (1989). 4 See NRS Chapter 534.”

In Re the Adjudication of the Existing Rights of Musselshell River Drainage, 840 P.2d 577 (Mont. 1992). · cites it 2× “Given Smith and Holmstrom, however, both of which held a long period of non-use of water rights to be “strong evidence” of intent to abandon, it was not the “stunning reversal” appellants assert it to be.”

Twin Creeks v. Petrolia, 2022 MT 19 (Mont. 2022). · cites it 5× “” Section 1881, MCA (1895); § 89-802, RCM (1947); see also § 85-2-404, MCA (2019). 4 file their claims in order to be part of the basin-wide adjudication and avoid forfeiting their rights.”

State Ex Rel. Greely v. Mt. Water C (Mont. 1986). · cites it 3× “Section 85-2-404(2), MCA, pertains to abandonment and provides : If an appropriator ceases to use all or part of his appropriation right or ceases using his appropriation right according to its terms and conditions for a period of 10 successive years and there was water…”

— Mont. Code Ann. § 85-2-404(2) — 4 cases

State Ex Rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754 (Mont. 1985). ““As between appropriators, the first in time is the first in right.” 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.”

In re Klamert, 443 P.3d 379 (Mont. 2019). “2d at 218 ; § 85-2-404, MCA. A finding of abandonment requires both nonuse and intent to abandon.”

Twin Creeks v. Petrolia, 2022 MT 19 (Mont. 2022). “” Section 1881, MCA (1895); § 89-802, RCM (1947); see also § 85-2-404, MCA (2019). 4 file their claims in order to be part of the basin-wide adjudication and avoid forfeiting their rights.”

State Ex Rel. Greely v. Mt. Water C (Mont. 1986). “Section 85-2-404(2), MCA, pertains to abandonment and provides : If an appropriator ceases to use all or part of his appropriation right or ceases using his appropriation right according to its terms and conditions for a period of 10 successive years and there was water…”

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