Montana Code Annotated

Mont. Code Ann. § 85-5-301 (2026)

Complaint By Dissatisfied User

✓ current as of May 2026

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TITLE 85. WATER USE

CHAPTER 5. WATER COMMISSIONERS AND WATER MEDIATORS

Part 3. Rights and Duties of Water Users

Complaint By Dissatisfied User

85-5-301. Complaint by dissatisfied user. (1) A person owning or using any of the waters of the stream or ditch or extension of the ditch who is dissatisfied with the method of distribution of the waters of the stream or ditch by the water commissioner or water commissioners and who claims to be entitled to more water than the person is receiving or to a right prior to that allowed the person by the water commissioner or water commissioners may file a written complaint, duly verified, setting forth the facts of the claim.

(2) Upon receipt of the complaint, the judge shall fix a time for the hearing of the petition and shall direct that notice be given to the parties interested in the hearing as the judge considers necessary. At the time fixed for the hearing, the judge shall hear and examine the complainant and other parties who appear to support or resist the claim and examine the water commissioner or water commissioners and witnesses regarding the charges contained in the complaint.

(3) Upon the determination of the hearing, the judge shall make findings and issue an order that the judge considers just and proper. If it appears to the judge that the water commissioner or water commissioners have not properly distributed the water according to the provisions of the decree, permit, certificate, or change in appropriation right, the judge shall give the proper instructions for distribution of the water.

(4) The judge may remove any water commissioner and appoint a new water commissioner if the judge determines that the interests of the parties in the waters mentioned in the decree, permit, certificate, or change in appropriation right will be best served by appointing a new water commissioner. If it appears to the judge that the water commissioner has willfully failed to perform the water commissioner's duties, the water commissioner may be proceeded against for contempt of court, as provided in contempt cases. The judge shall make an order regarding the payment of costs of the hearing that the judge determines is just and proper.

History: En. Sec. 15, Ch. 43, L. 1911; re-en. Sec. 7150, R.C.M. 1921; amd. Sec. 5, Ch. 125, L. 1925; re-en. Sec. 7150, R.C.M. 1935; amd. Sec. 13, Ch. 460, L. 1977; R.C.M. 1947, 89-1015; amd. Sec. 3, Ch. 92, L. 2007.

Notes of Decisions

Cited in 13 cases (1 in the last 5 years), 1983–2026 · leading case: Fellows v. Off. of Water Comm'r, 2012 MT 169 (Mont. 2012).

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Fellows v. Off. of Water Comm'r, 2012 MT 169 (Mont. 2012). · cites it 19× “¶13 Section 85-5-301, MCA, provides, in part, that ‘la] person owning or using any of the waters of the stream .”

Morrison v. Higbee, 668 P.2d 1029 (Mont. 1983). · cites it 10× “Under section 85-5-301, MCA, the Honorable Frank E.”

State Ex Rel. Jones v. Dist. Court of the Fourth Jud. Dist. Ex Rel. Missoula Cnty., 938 P.2d 1312 (Mont. 1997). · cites it 12× “Judge Loble argues that if Relators are as dissatisfied with the manner in which the water commissioners are administering or allocating the water on Carlton Creek, then their proper remedy is found in § 85-5-301, MCA, which allows a person owning or using water from a stream…”

Eldorado Coop Canal Co. v. Ben Hog, 2016 MT 145 (Mont. 2016). · cites it 9× “¶8 On August 23, 2015, Eldorado filed a dissatisfied water user complaint in the District Court pursuant to § 85-5-301, MCA. Eldorado filed its complaint against Hoge in his capacity as Water Commissioner for the Perry Decree.”

In re Klamert, 443 P.3d 379 (Mont. 2019). · cites it 7× “¶29 The Water Court found that if Objectors took issue with Klamert's failure to *387 report diversions to the water commissioner the proper remedy would be a dissatisfied water user complaint pursuant ***431 to § 85-5-301, MCA, or contempt proceedings under § 85-5-406, MCA.”

Marks v. First Jud. Dist. Court, 781 P.2d 249 (Mont. 1989). · cites it 3× ““On June 7,1988, Marks, through his counsel, recognized that the undersigned was presiding judge in this case by filing a Section 85-5-301, MCA complaint before him and at the same time procuring an order setting the complaint down for hearing.”

In Re the Water Complaint of Kelly, 2010 MT 14 (Mont. 2010). · cites it 11× “(1) A person *90 owning or using any of the waters of the stream or ditch or extension of the ditch who is dissatisfied with the method of distribution of the waters of the stream or ditch by the water commissioner or water commissioners and who claims to be entitled to more…”

Fellows v. Giese v. Saylor, 2016 MT 45 (Mont. 2016). · cites it 2× “We agreed with the District Court that Fellows could not seek relief from the action of the Perry Water Commissioner under § 85-5-301, MCA, because he did “not derive his Spring Creek water right from the Perry decree .”

In the Matter of: Petition for Water Commiss., 2026 MT 16 (Mont. 2026). · cites it 27× “The 6 District Court, construing Hoeffner’s letter as a dissatisfied water user complaint under § 85-5-301, MCA, ordered briefing. No party requested an evidentiary hearing.”

Granite Ditch Co. v. Anderson, 662 P.2d 1312 (Mont. 1983). · cites it 3× “Whether the present petition is construed as a continuation of the legal momentum created by the original petition and Order issued thereon, or is construed as a complaint of dissatisfied Rock Creek water users under section 85-5-301, MCA, it is confined to the question of the…”

Choteau Cattle Co. v. Clark, 2009 MT 46 (Mont. 2009). · cites it 4× “¶2 This action was filed as a Complaint of Dissatisfied Water User in the MontanaNinth Judicial District Court, Teton County, pursuant to § 85-5-301, MCA. After notice to interested persons and an evidentiary hearing, the District Court dismissed.”

Show all 13 citing cases →

— Mont. Code Ann. § 85-5-301(1) — 2 cases

Fellows v. Off. of Water Comm'r, 2012 MT 169 (Mont. 2012). “¶13 Section 85-5-301, MCA, provides, in part, that ‘la] person owning or using any of the waters of the stream .”

Eldorado Coop Canal Co. v. Ben Hog, 2016 MT 145 (Mont. 2016). “¶8 On August 23, 2015, Eldorado filed a dissatisfied water user complaint in the District Court pursuant to § 85-5-301, MCA. Eldorado filed its complaint against Hoge in his capacity as Water Commissioner for the Perry Decree.”

— Mont. Code Ann. § 85-5-301(2) — 1 case

State Ex Rel. Jones v. Dist. Court of the Fourth Jud. Dist. Ex Rel. Missoula Cnty., 938 P.2d 1312 (Mont. 1997). “Judge Loble argues that if Relators are as dissatisfied with the manner in which the water commissioners are administering or allocating the water on Carlton Creek, then their proper remedy is found in § 85-5-301, MCA, which allows a person owning or using water from a stream…”

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