The Montana Water Court system plays a crucial role in adjudicating and administering water rights. A key component of this process involves the issuance of preliminary decrees, governed by section 231 2 of the Montana Code Annotated. This article delves into the different types of preliminary decrees, their purpose, and the requirements for their issuance.
Types and Purpose of Preliminary Decrees under 231 2
Section 231 2 outlines three types of preliminary decrees: temporary preliminary decrees, preliminary decrees, and supplemental preliminary decrees. Each serves a distinct purpose in the overall water rights adjudication process.
Temporary Preliminary Decree (231 2(1) and (3)): A water judge may issue a temporary preliminary decree before a final preliminary decree if necessary for the orderly management of water rights. This allows for interim administration, particularly in complex or contested cases. These decrees can be issued for specific geographic areas or groups of claims within a water division.
Preliminary Decree (231 2(2)(a) and (b)): This decree is the cornerstone of the water rights adjudication process. It establishes the initial determination of water rights based on various sources of information, including:
- Statements of Claim: Filed by individuals asserting water rights, including claims filed under 85-2-222 for preliminary decrees issued after June 30, 2019.
- Department Data: Information submitted by the Montana Department of Natural Resources and Conservation.
- Compacts: Agreements between Montana, tribal entities, and federal agencies regarding water rights.
- Additional Data: Any other relevant information obtained by the water judge.
The preliminary decree must be issued within 90 days of the close of the special filing period defined in 85-2-702(3) or as soon thereafter as is reasonably possible.
Supplemental Preliminary Decree (231 2(2)(c)): In basins with a preliminary decree issued before July 1, 2019, a supplemental preliminary decree is required to address previously excluded claims. This specifically includes exempt rights as defined in 85-2-222 that were not included in the original decree and for which notice was not provided under 85-2-233(6). This ensures all valid claims are considered.
Requirements and Procedures (231 2(4) and (5))
Both temporary and final preliminary decrees must contain the same information and findings required for the final decree under 85-2-234. This includes details about the priority date, type of right, amount of water claimed, and place of use.
The water master plays a vital role in developing the preliminary decree. They prepare a report that the water judge reviews. If the report meets the requirements, the judge may adopt it as the preliminary decree. However, the judge can also modify the report or send it back to the water master for revisions.
Conclusion
Section 231 2 of the Montana Code Annotated provides the legal framework for preliminary decrees in the state’s water rights adjudication process. Understanding these different types of decrees, their purpose, and the information they must contain is essential for anyone involved in Montana water rights. The process, while complex, ensures a fair and comprehensive approach to managing this critical resource. The preliminary decree provides a foundation for the final decree, which ultimately determines the legal status of water rights within a basin.
