The Montana Supreme Court has agreed to a 30-day stay in a Montana Water Court decision that could treble the city of Belgrade’s annual water right – 2,787 acre feet of water per year, versus its current 957 acre feet.
An acre foot is the amount of water it takes to cover an acre of ground with 1 foot of water.
Should the ruling stand, Belgrade would be entitled to triple the amount of water to which it is legally entitled and would destroy the long-standing traditions of senior water rights holders, said Bozeman attorney Peter Byorth, representing Montana Trout Unlimited (MTU).
MTU had asked the Montana Supreme Court to take supervisory control over the Montana Water Court, alleging that its recent ruling in this case misinterpreted the “presumption of non-abandonment” and exceeded the jurisdictional limits of the Water Court.
It also alleged that the Water Court ruling subordinates senior water rights, without due process, and has vast, statewide implications.
On June 1, the Montana Supreme Court agreed to give the cities of Belgrade and Three Forks 30 days to file a response to the Montana Trout Unlimited petition, and that the court would take the MTU petition under advisement pending their responses. The Belgrade City Council met in closed session to discuss the matter during its June 6 meeting, but did not take any action.
MTU filed its case (OP 22-0277) before the Supreme Court May 26.
The Belgrade case is “married” to municipal water rights in Three Forks, and already has been cited by the Town of Manhattan as a reason it should now be allotted 1,520 annual acre feet, versus the 1,187 it currently claims.
Why didn’t MTU object earlier?
“There was nothing to object to, until the ruling,” explained Byorth, “and you have to go with the assumption that the Water Court is going to follow the law.”
The ruling in question came from Associate Water Court Judge Stephen Brown, appointed by Supreme Court Chief Justice Mike McGrath in 2019.
The gist of the MTU petition is that the Water Court “way over-stepped its judicial bounds.
“If any city can go beyond its (water) apportionment, that upsets the idea of prior rights. It upsets the priority doctrine. Water rights are a constitutionally protected property right,” Byorth told the Belgrade News.
The fact that Manhattan has already cited the Belgrade ruling as precedent shows how dangerous it is to senior rights-holders to let this ruling stand, Byorth said. Manhattan filed a motion for a summary judgment in Water Court Case 41H-0140-2020, asking for “the Belgrade result,” he said.
Montana is a “First in Time, First in Place” state, with senior water-right holders lining up first to obtain and use water.
The Water Court was created by the 1979 Montana Legislature. It has exclusive jurisdiction over the adjudication of all water rights claims in Montana. More than 200,000 water rights claims eventually will be adjudicated through the Water Court.
Trout Unlimited owns two water rights and leases 13 others in the Gallatin River Basin, their court filing stated.
One point at issue here is the “growing communities doctrine,” which “gives cities the opportunity to ‘grow into their water rights.’” Byorth explained.
“We say this ruling unlawfully expanded the scope of growing cities doctrine in Montana,” he said.
The MTU brief alleges that this ruling “miscites precedent to enable municipalities to expand historic water rights beyond quantities originally claimed” and is “ an unlawful expansion with statewide ramifications.” In other words, a properly applied “growing cities doctrine” is a subset of an abandonment proceeding.
When folks quote that “Whisky’s for drinkin’ and water’s for fightin’,” they are not joking.
“This mistake will substantively harm water users’ constitutionally protected rights to use water in priority across Montana,” the brief continued.
MTU asked for a stay of the Water Court ruling, since going through an appeal process would likely adversely affect water rights in this basin long before the appeal process would work its way through the courts.
At issue is a Nov. 12, 1980, Belgrade claim on existing water rights – a 1928 priority date with an annual 360 acre feet, and a 1948 claim of an annual 597 acre feet. On Jan. 22, 2020, the court consolidated those claims into one case, and on June 16, 2021, increased the city’s claim to 2,878 acre feet from 957 acre feet.
The MTU brief claims that Brown misapplied the cases of city of Helena and Fort Peck to arrive at a conclusion tripling Belgrade’s water right. In those cases, Helena claimed and was originally given the same amount. Fort Peck claimed 1,500 acre feet but was given 171.
The MTU brief states that the Water Court erred when it started with a “current use” standard and not a “statement of claim.” That increased Belgrade’s municipal water rights beyond what it originally claimed to a total that was “maximum delivery records” plus future needs, for a total triple to what is currently claimed.
“The court oversteps its jurisdiction and enunciates a calculation with no legal basis in cited law,” the brief continued.
Additionally, MTU alleges that the water court misapplied state “abandonment law” to give Belgrade a larger water allotment.
“They unlawfully expanded the growing cities doctrine outside of abandonment proceedings,” Byorth said.
“The Growing Cities Doctrine ... does not allow the water court to increase elements beyond quantities originally claimed,” the brief said.
The brief states that a final mistake of the Water Court is that it “lacks jurisdiction to make post-1973 increases to existing water rights and to permit new groundwater appropriations.”
“It would give Belgrade a ‘right’ at the expense of existing law,” Byorth concluded.
“Water rights are constitutionally protected property rights. The water court’s mistake of law raises constitutional issues of statewide importance by subordinating constitutionally protected, senior water rights without due process,” he said.