Montana Supreme Court reverses the Montana Department of Natural Resources and Conservation (DNRC) grant of commercial water right to Montana Artesian Water Company in Creston, MT For seven long years, the attorneys at Ferguson & Coppes have worked diligently to protect water rights and hold the Montana Department of Natural Resources and Conservation accountable for its decision making. This saga – the largest administrative proceeding ever before the Department – now is over as the clients of Ferguson & Coppes recently prevailed in their most recent appeal to the Montana Su ..read more

Held v. Montana Decision: Montana is violating the rights of young people with policies that prohibit the state from considering climate change effects when it reviews coal mining, natural gas extraction and other fossil fuel projects The 103-page decision by Judge Kathy Seeley in the Lewis and Clark County District Court in Helena marked a major victory in the first youth-led climate case to reach trial in the U.S. and could influence similar cases nationwide. 16 plaintiffs filed the lawsuit in 2020, then between the ages of 2 and 18, claiming the state’s permitting of projects like coal an ..read more

Form 602: A Step-by-Step Guide Perhaps the most common and legally mystifying water right, 602 Water Rights are distinct from those discussed in Parts I or II of this series in that they do not require full review by the Department of Natural Resources. These water rights are typically for domestic uses and are limited to a flow rate of 35 gallons per minute and a total volume of 10 acre-feet per year. While these parameters seems simple on their face, administration and enforcement has proven to be a different story. This is particularly true as water uses in Montana change with population tr ..read more

Form 600 SW: A Step-by-Step Guide Obtaining any new Montana water right can be a daunting endeavor. Picture this: you’ve moved to Montana and you’ve found the perfect property (the one with the pristine creek meandering through) and you’ve gotten some ideas for how might put the water that appears available to good use. Of course, the water is on your property and you are in the Wild West, but how do you know if you have the legal right to use it? As we mentioned in Part I of this series, obtaining or confirming a water right in Montana often requires a bit of research. If you’re fee ..read more

Form 600 GW: A Step-by-Step Guide If you’ve done your homework on Montana Water Rights, you may already know that to obtain the right to use water in Montana, you’ll need to file paperwork and pay fees to the Department of Natural Resources and Conservation. That said, it’s always worth reviewing your real estate paperwork first to see whether any water rights already exist for use on your property. Another way to research this is through the DNRC’s water right query system for your water right information. If you think this might be the case, it’s also probably worth contacting a water law a ..read more

As Montana attorneys specializing in natural resource and water law, at Ferguson & Coppes we are often asked: “What is Montana water law? How do Montana water rights work?” In fact, Montana has one of the more sophisticated legal systems for administering water in the US, among other states like California, Colorado and Hawaii, thanks in large part to Montana’s 1972 Constitution. The Journey from Riparian to Prior Appropriation It may seem obvious to those familiar—especially if you’ve grown up irrigating or “changing the water” for your family’s farming operation—but access to clean water ..read more

On October 5, 2022 John Ferguson presented to Montana’s water law practitioners concerning the history of and recent changes to DNRC’s interpretation and enforcement of “combined appropriations” from multiple groundwater wells.  More specifically, DNRC has recently again changed its analysis § 85-2-306, MCA, which authorizes the appropriation of groundwater up to 10 acre-feet per year from a single source aquifer, without a permit.  In implementing this statute, DNRC has struggled over the years to articulate a clear policy for how it will deal with multiple ..read more

The lawsuit, filed in 1st Judicial District Court in Broadwater County, alleges the defendants failed to do their duty to consider impacts and protect  water and land resources from unreasonable degradation under the Subdivision and Platting Act and the Montana Water Use Act. The lots received Montana Department of Natural Resources and Conservation (DNRC) approval to use aggregated exempt wells. At the center of the issue is Horse Creek Hills, a four-phase, 435-acre subdivision in Broadwater County on the eastern shore and directly upstream from Canyon Ferry Reservoir and Confe ..read more

On September 28, 2022, the Department of Justice formally withdrew its second 9th Circuit Appeal after losing a judgment on the merits issued by the Honorable Donnald Malloy.  At issue in the case was the agency’s failure to act pursuant to § 706(1) of the Administrative Procedures Act and the National Scenic Trails Act.  Emily Wilmott and Graham Coppes successfully prosecuted the case against the Kootenai National Forest who were more then a decade late in drafting and authorizing a Comprehensive Plan which incorporated protections for the Cabinet-Yaak population of Threatened grizz ..read more

Ferguson & Coppes attorney’s Graham Coppes and Emily Wilmott have submitted the final briefs in what has now become a 5 year long battle to protect senior water rights and lawful agency decision making.  After Graham and Emily prevailed for the second time in the First Judicial District, the Company again appealed. See https://flatheadbeacon.com/2021/10/05/judge-voids-flathead-valley-bottling-plants-water-permit/ Now, after all briefs have been submitted, on November 30, 2022, the Montana Supreme Court issued an order declaring that the matter has been submitt ..read more