With both changing environmental factors and population explosion in the West, it is paramount that water rights records be historically accurate and that the legal process is accessible to a diverse array of water users. The nuances of specialized terminology, technology, and an abundance of pro se litigants make participating in Montana’s statewide adjudication process distinctive for the practitioner.
How Is Water Adjudication Different from Traditional Legal Fields?
Historical Research Is Key
Differences between water rights litigation and more traditional legal fields stem from the fact that all water rights adjudicated at the water court are pre-July 1, 1973.
Reliable Evidence Takes Time
In a practical sense, adjudicating pre-1973 water rights presents challenges for lawyers and the water court alike. Because many of the water rights in the state were claimed in the late 1800s and early 1900s, finding and interpreting reliable evidence from the turn of the 20th century may be a long and arduous process.
Understanding Terminology Changes
Traditional party designations, like plaintiff and defendant, are replaced with claimant (the water right owner), objector (a water user who files an objection to the historical usage of someone’s water right, including their own), and Notice of Intent to Appear (NOIA) parties (water users whose rights could be affected by the decision rendered on another water right and join the case to monitor the outcome).
The Starting Line
The process begins when the Montana Department of Natural Resources and Conservation (DNRC) examines all rights in a basin and notes any specific issues appearing on the claims. Claimants are then given a period to object to their own or someone else’s rights or file NOIAs.
The Practitioner’s Toolbox
Working knowledge of legal land descriptions, GIS mapping systems, and other mapping websites, like Cadastral, is a must for interpreting historical data, deciphering legal land descriptions, understanding aerial photographs, and interacting with the DNRC.
Pro Se and Ex Parte Concerns
Interestingly, many claimants in Montana choose to represent themselves. This presents difficulties for attorneys in terms of effectively communicating with claimants who often have an intimate understanding of their water rights based on their family’s history of owning the property but may not fully grasp the legal process. Similarly, issues of ex parte communication with self-represented litigants are challenging for water court personnel who often interface with the public.
An Expanding Field
The practice of water rights adjudication in Montana is a growing field spurred by factors of environmental change and increased demand. It also provides practitioners and members of the water court with an opportunity to impact the state’s citizens in meaningful ways. This constantly developing area of law is one worth watching and becoming involved. With the right understanding and skill set, the waterways will be smooth sailing for any practitioner.