Opinion: Opposition to Permanent Water Court Bill
April 13, 2023
I have been blessed to be operating alongside the 5th generation of our family ranch in Roberts, Montana. Ranch families like mine understand the importance of neighbors, community, and keeping decision making at the most local level possible.
That’s why we are deeply concerned about an effort by attorneys to jam a bill through the Montana Legislature that would take away local power and hand it to unelected statewide bureaucrats who do not live, work, or recreate in our communities.
Currently, when water disputes or questions arise, Montanans handle those concerns through a well-established practice of going through elected district court judges. Water disputes often involve other civil and criminal questions that district court judges are well equipped to address, including obstruction of justice, criminal trespass, and contempt of court.
Senate Bill 72 (SB 72), designed by lawyers for lawyers, would establish a new permanent water court which leads to serious questions of constitutionality. The bill would create additional uncertainty for those who work hard to make a living from the land utilizing our water resources. Attorneys clearly have a vested interest in this new bill; farmers, ranchers, individual recreationalist, and other water users would need to hire more of them to navigate all of the uncertainty created by this new bill.
Nearly 45 years ago, a temporary water court was established with the express purpose of adjudicating pre-1973 water rights questions. The current Montana water court was designed to address the unique challenges of each individual drainage from which our resource begins. After creating the framework for this precious resource to be incorporated into the existing levels of governments, the current water court is supposed to cease to exist.
Instead, SB 72 would add to the statewide bureaucracy by making this temporary water court permanent and expanding its jurisdiction from adjudication to enforcement. This is problematic for numerous reasons but most importantly, it’s unconstitutional and will ultimately put Montanans’ water rights in jeopardy.
In 1988, the Montana Legislature commissioned a report called the Ross Report to address constitutional questions that arose regarding an appointed water judge who had never served as an elected district court judge. The Montana Constitution requires that Supreme Court and district court judges shall be elected by qualified electors. The Ross Report found that the water court could survive a constitutional challenge because the water court was temporary and therefore the judges were temporary appointees, and the court’s jurisdiction was limited to the adjudication of pre-1973 water rights. SB 72 makes the water court permanent and also requires the water court judges only be appointed by the governor and face a retention rather than a competitive election. SB 72 dismantles the two things the Ross Report found important to keeping the Montana water court constitutional: its temporary nature and its limited jurisdiction.
In addition to water rights being subjected to constitutional challenges, a separate section of the bill would allow for any water right holder in a basin (DNRC, USFWS, power companies, Trout Unlimited, etc.) to file a petition to modify or revoke any permits or change authorizations after the issuance of the final decree. This proposal states that all such petitions must be filed within 120 days of a final decree, guaranteeing a flood of legal challenges and conflict, neighbor on neighbor. Once again forcing water users to spend money to defend their water right from government intrusion.
SB 72 was resoundingly rejected by the House Judiciary Committee where every member, Democrat and Republican, voted to table it. However, there are still maneuvers to be made by proponents that could bring this bill back to life. I urge everyone to reach out to your legislator and ask him or her to resist any motion to revive SB 72.
Montana farmers, ranchers, and irrigators do not need or want a new set of statewide bureaucrats “addressing” their concerns. Elected district judges who are closest to the people should continue to handle water concerns. Time tested and structured to handle an issue concerning the livelihood of every Montanan, the current system is not only the constitutionally-sound way but also the only common-sense way.
Carl DeVries sits on the Board of Directors of the Rock Creek Water Users Association.
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