Water law: Stopping the leaks in the Montana Constitution

In Montana, as in other dry states in the Rocky Mountain West, water is precious. It is vital for home use, agriculture, ranching, industry, wildlife, plant life, and recreation. Yet there sometimes is not enough water to go around.

Because water is so precious, the law governing it should be fair and certain. People are entitled to know what they can and can’t do. They need assurance that the rules will not change suddenly.

Unfortunately, the Montana state constitution’s water provisions are confused and contradictory. Hence, this eighth article in a series on why Montanans should opt for a new constitutional convention when the issue comes to the ballot in 2030.

While on the faculty at the University of Montana Law School, I taught many courses besides Constitutional Law. They included water law and related subjects.

Compared to most other areas of jurisprudence, I found water law to be a muddle.  Many of its rules flow from political struggles rather than from clear legal reasoning. Water lawyers and textbook writers sometimes borrow or reject concepts from other areas of the law, such as trust and property law, without understanding those concepts or the legal subjects from which they derive.

Not surprisingly, some of this confusion seeped into Montana’s 1972 constitution.

For example, Article IX, Section 3 says, “All . . . waters . . . are the property of the state. . . .” But the U.S. Supreme Court says that’s not true.

Section 3 adds that state ownership is “for the use of its people . . . ” This is traditional trust law language. It means that the state must allocate the water for the general welfare, irrespective of any private rights.

Yet the same section then protects existing and future private appropriations. To “appropriate” a water right is to use it for recognized purposes and stake a claim following certain legal procedures. In other words, once a legal appropriator complies with the procedures, the state constitution says he effectively owns the water that supposedly is owned by the state.

If you can keep those inconsistencies in your head, try believing these things, too:

• The “public trust doctrine”—a set of rules developed to limit the power of government and government officials—somehow increases that power.
  

• Supposedly, earlier users can appropriate water rights only if they follow proper procedure. Yet the courts sometimes grant priority to appropriations that materialize even though no one followed that procedure.
  

• The entire appropriation system is subordinate to federal and tribal reserved water rights. The extent of those reserved rights is largely unknown. Tomorrow a court can decide that water you thought you owned actually belongs to the federal government or to an Indian tribe.

As if this weren’t enough, in a 2002 case, the Montana Supreme Court retroactively placed certain pre-1973 water rights—also of unknown extent—over established rights.

How can we expect people to make financial and emotional investments in a chaotic system like this?

The legal tangle helps explain why there are so many lawsuits and bad feelings about water. You can invest in a water right, only to see it unexpectedly slip away.

A new state constitutional convention cannot cure all of this. But it can clarify that Montana follows a purer “prior appropriation” system. The state should be able to own water, but the fiction that the state owns all of it should be abandoned.

Other issues will have to be left to the legislature and the courts to work out.