Montana Code Annotated

Mont. Code Ann. § 85-2-406 (2026)

District Court Supervision Of Water Distribution

✓ 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

District Court Supervision Of Water Distribution

85-2-406. District court supervision of water distribution. (1) The district courts shall supervise the distribution of water among all appropriators. This supervisory authority includes the supervision of all water commissioners appointed prior or subsequent to July 1, 1973. The supervision must be governed by the principle that first in time is first in right.

(2) (a) A district court may order the distribution of water pursuant to a district court decree entered prior to July 1, 1973, until an enforceable decree is entered under part 2 of this chapter or the matter has been adjudicated under the procedure set forth in subsection (2)(b).

(b) When a water distribution controversy arises upon a source of water in which not all existing rights have been conclusively determined according to part 2 of this chapter, any party to the controversy may petition the district court to certify the matter to the chief water judge. If a certification request is made, the district court shall certify to the chief water judge the determination of the existing rights that are involved in the controversy according to part 2 of this chapter. The district court from which relief is sought shall retain exclusive jurisdiction to grant injunctive or other relief that is necessary and appropriate pending adjudication of the existing water rights certified to the water judge. Certified controversies must be given priority over all other adjudication matters. After determination of the matters certified, the water judge shall return the decision to the district court with a tabulation or list of the existing rights and their relative priorities.

(3) A controversy between appropriators from a source that has been the subject of a final decree under part 2 of this chapter must be settled by the district court. The order of the district court settling the controversy may not alter the existing rights and priorities established in the final decree except to the extent the court alters rights based upon abandonment, waste, or illegal enlargement or change of right. In cases involving permits issued by the department, the court may not amend the respective rights established in the permits or alter any terms of the permits unless the permits are inconsistent or interfere with rights and priorities established in the final decree. The order settling the controversy must be appended to the final decree, and a copy must be filed with the department. The department must be served with process in any proceeding under this subsection, and the department may, in its discretion, intervene in the proceeding.

(4) A temporary preliminary decree or preliminary decree or a portion of a temporary preliminary decree or preliminary decree as modified after objections and hearings is enforceable and administrable according to its terms. If an action to enforce a temporary preliminary decree or preliminary decree is commenced, the water judge shall upon referral from the district court establish, in a form determined to be appropriate by the water judge, one or more tabulations or lists of all existing rights and their relative priorities.

(5) A person whose existing rights and priorities are determined in a temporary preliminary decree or preliminary decree or a person exercising a suspension under 85-2-217 and part 7 of this chapter may appeal a determination made pursuant to subsection (2).

History: En. Sec. 32, Ch. 452, L. 1973; amd. Sec. 12, Ch. 485, L. 1975; R.C.M. 1947, 89-896; amd. Sec. 34, Ch. 697, L. 1979; amd. Sec. 6, Ch. 604, L. 1989; amd. Sec. 6, Ch. 174, L. 1997.

Notes of Decisions

Cited in 30 cases (1 in the last 5 years), 1979–2026 · leading case: Hidden Hollow Ranch v. Fields, 2004 MT 153 (Mont. 2004).

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Hidden Hollow Ranch v. Fields, 2004 MT 153 (Mont. 2004). · cites it 25× “Did the District Court exceed its jurisdiction under § 85-2-406, MCA, and re-adjudicate either party’s underlying water rights as previously decreed in the Confederate Creek Decree? ¶4 2.”

Fellows v. Giese v. Saylor, 2016 MT 45 (Mont. 2016). · cites it 66× “” Section 85-2-406(1), MCA. ¶33 Although the Perry Defendants make additional arguments, we conclude that the contentions discussed above are dispositive.”

Kelly v. Teton Prairie LLC, 2016 MT 179 (Mont. 2016). · cites it 6× “Section 85-2-406(1), MCA. Furthermore, a court has the authority to grant an injunction when it appears the applicant is entitled to the relief sought, and the relief entails the restraint of the continuance of the complained of act, or when the continuance of the act would…”

Mildenberger v. Galbraith, 815 P.2d 130 (Mont. 1991). · cites it 10× “" Section 85-2-406(2), MCA. The District Court lacks the jurisdiction to issue a final decree with regard to the water right.”

Eldorado Coop Canal Co. v. Ben Hog, 2016 MT 145 (Mont. 2016). · cites it 17× “Montana’s water rights system distinguishes water adjudication from water distribution.”

Fellows v. Off. of Water Comm'r, 2012 MT 169 (Mont. 2012). · cites it 10× “The court in turn determined that Fellows had to initiate a separate proceeding under §85-2-406, MCA, so that the connectivity issue could be determined by the Water Court.”

Montana Power Co. v. .Carey, 685 P.2d 336 (Mont. 1984). · cites it 10× “Section 85-2-406, M.C.A., 1983. Aggrieved senior water users retained their traditional access to the district court.”

Holmstrom Land Co. v. Hunter, 595 P.2d 360 (Mont. 1979). · cites it 6× “1947, now section 85-2-406 MCA, to insure that appropriators of Newlan Creek water were not adversely affected by Holmstrom's use of Newlan Creek as a conduit for its Sheep Creek waters.”

Giese v. Blixrud, 2012 MT 170 (Mont. 2012). · cites it 29× “4 ¶9 The District Court dismissed the Third Amended Petition for failure to state a claim, on the ground that the petitioners had “not set forth any averments regarding their water right claims on the lower Teton River,” and the existence and priority of water claims are the…”

Eldorado Co-Op Canal Co. v. Lower T, 2014 MT 272 (Mont. 2014). · cites it 5× “Sections 85-2-406(1) and 85-5-101, MCA. That includes enforcement of Temporary Preliminary and Preliminary Decrees of the Water Court.”

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 6× “In 1974, Burkhartsmeyer, Rambo, Stevenson (now Lazy DX *246 Ranch) and Black Butte Ranch (not a party to the appeal) filed a complaint in the District Court, Twelfth Judicial District, Hill County, under Section 85-2-406(2), MCA, against Sage Creek Colony.”

Little Big Warm Ranch, LLC v. Doll, 431 P.3d 342 (Mont. 2018). · cites it 2× “See § 85-2-406, MCA. The District Court cases DV 93-050 and DV 95-031 were consolidated into two water court cases: WC-2000-05 and WC-2000-06, collectively captioned In the Matter of Certain Water Rights of Doll and Knudsen .”

Show all 30 citing cases →

— Mont. Code Ann. § 85-2-406(1) — 6 cases

Kelly v. Teton Prairie LLC, 2016 MT 179 (Mont. 2016). “Section 85-2-406(1), MCA. Furthermore, a court has the authority to grant an injunction when it appears the applicant is entitled to the relief sought, and the relief entails the restraint of the continuance of the complained of act, or when the continuance of the act would…”

Fellows v. Giese v. Saylor, 2016 MT 45 (Mont. 2016). “” Section 85-2-406(1), MCA. ¶33 Although the Perry Defendants make additional arguments, we conclude that the contentions discussed above are dispositive.”

Eldorado Coop Canal Co. v. Ben Hog, 2016 MT 145 (Mont. 2016). “Montana’s water rights system distinguishes water adjudication from water distribution.”

Eldorado Co-Op Canal Co. v. Lower T, 2014 MT 272 (Mont. 2014). “Sections 85-2-406(1) and 85-5-101, MCA. That includes enforcement of Temporary Preliminary and Preliminary Decrees of the Water Court.”

Fellows v. Giese v. Saylor, 2016 MT 45 (Mont. 2016).

— Mont. Code Ann. § 85-2-406(2) — 6 cases

Mildenberger v. Galbraith, 815 P.2d 130 (Mont. 1991). “" Section 85-2-406(2), MCA. The District Court lacks the jurisdiction to issue a final decree with regard to the water right.”

Fellows v. Off. of Water Comm'r, 2012 MT 169 (Mont. 2012). “The court in turn determined that Fellows had to initiate a separate proceeding under §85-2-406, MCA, so that the connectivity issue could be determined by the Water Court.”

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). “In 1974, Burkhartsmeyer, Rambo, Stevenson (now Lazy DX *246 Ranch) and Black Butte Ranch (not a party to the appeal) filed a complaint in the District Court, Twelfth Judicial District, Hill County, under Section 85-2-406(2), MCA, against Sage Creek Colony.”

Old Stand. v. Huntley, 2014 MT 137N (Mont. 2014).

— Mont. Code Ann. § 85-2-406(2)(a) — 1 case

Eldorado Coop Canal Co. v. Ben Hog, 2016 MT 145 (Mont. 2016). “Montana’s water rights system distinguishes water adjudication from water distribution.”

— Mont. Code Ann. § 85-2-406(2)(b) — 9 cases

Hidden Hollow Ranch v. Fields, 2004 MT 153 (Mont. 2004). “Did the District Court exceed its jurisdiction under § 85-2-406, MCA, and re-adjudicate either party’s underlying water rights as previously decreed in the Confederate Creek Decree? ¶4 2.”

Giese v. Blixrud, 2012 MT 170 (Mont. 2012). “4 ¶9 The District Court dismissed the Third Amended Petition for failure to state a claim, on the ground that the petitioners had “not set forth any averments regarding their water right claims on the lower Teton River,” and the existence and priority of water claims are the…”

— Mont. Code Ann. § 85-2-406(3) — 5 cases

In Re Teton Coop. Reservoir Co., 2018 MT 66 (Mont. 2018).

MacK v. Anderson, 2016 MT 204 (Mont. 2016).

Baker Ditch Co. v. Dist. Court of the Eighteenth Jud. Dist. of Montana, 824 P.2d 260 (Mont. 1992).

Teton Coop v. Farmers Coop., 2018 MT 66 (Mont. 2018).

— Mont. Code Ann. § 85-2-406(4) — 4 cases

Eldorado Coop Canal Co. v. Ben Hog, 2016 MT 145 (Mont. 2016). “Montana’s water rights system distinguishes water adjudication from water distribution.”

Fellows v. Giese v. Saylor, 2016 MT 45 (Mont. 2016).

In the Matter of: Petition for Water Commiss., 2026 MT 16 (Mont. 2026).

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