Water Rights: An Interview with Stan Bradshaw Author Of “Buyer’s Guide to Montana’s Water Rights”
This article written by Eliza DuBose, reporter for The Monitor - Boulder Montana and is reprinted her courtesy of the The Monitor. It was published in the inaugaral East Helena Monitor on December 17, 2025.
Water has been all over the headlines lately, particular in The Monitor.
From Boulder selling bulk water to a posh ranch-resort in the Crazy Mountains to an East Helena subdivision that needs to find a new water source, and from the state refusing to grant East Helena the water rights to the former ASARCO smelter lands to Clancy struggling to secure a reliable water source from more than a decade, there’s a great deal of ground to cover.
Thankfully, retired water rights attorney Stan Bradshaw – who literally wrote the “Buyer’s Guide to Montana’s Water Rights” – recently found the time to sit down with me to touch on all these topics as well as the history of water rights and how they’re shaped today. We chatted for so long, in fact, that the interview had to be broken into multiple articles.
Keep your eyes peeled for Part Two next month.
The Monitor: What concepts do you think are the most important for people to understand water rights in Montana?
Stan Bradshaw: The most important one that a lot of people I don't think understand, is water right is a property right. Not only is it a property right, our Supreme Court has declared it a real property right. So it's like an attribute of real estate now, that's not understood by most folks.
The follow-up on that is that a water right doesn't endow ownership in the water. Under the terms of the state Constitution, Montana owns all the state’s water—groundwater, surface, and atmospheric—in a trust for the use of the people. So, a water right is a right to use water. You'll hear the axiom “use it or lose it”, which underscores the idea that a right to use water can be lost through non-use, or what’s called abandonment.
If you have a water right and fail to use it for 10 years, and you express, by your actions or words, some intention to no longer use it, you lose that water right. So, it's not just non-use. It's non-use with some evidence of intention to not use it. And we actually have some old cases in our judicial history where the water right has been not used for at least a decade plus and the Supreme Court said, well, that doesn't necessarily mean they didn't intend to use it.
Monitor: OK, tell me a bit more about that.
SB: Let's say we have a water right established in 1890 that has been actively used on that property ever since. If the owner sells that land with no mention of the water rights, the ownership of the water right travels with land on that sale. But it is possible to sever the water right from the sale by specifically withholding it within the terms of the conveyance.
Monitor: Is that a reflection of Montana’s historical understanding and handling of water?
SB: Yeah, I think a lot of it is grounded in the 1860s, when folks were taking a lot of water from streams in the course of mining, they’d get in fights over who got the water. It was eventually resolved by establishing a system of first come, first serve, as the bottom. And over time, as we started putting water to new uses—irrigation, domestic uses, other industrial uses--more uses spread over different landscapes. Then, “first in time, first in right” became the standard. This means the date of your first use is the priority date of your right. In water-short years, the rights that date back the farthest are prioritized and more valuable.
Monitor: It does seem terribly complex. Is there a point at which it might be better to just start over on water law and rewrite it?
SB: If you just say we're going to lay a whole new system on this, what you’ll have then are people with a water right saying, ‘Wait a minute, we can't do this without due process. This is a piece of our property. You can't just do that without compensating me.’ I've thought about this a lot, and yeah, it has a nice ring to it – we can just go in and start over.
But it would be really, really difficult, and very contentious. People base their lives on this. It’s a weird system, but it’s what we have. If I’d been around in 1860 I would have set it up differently. But now we have 150 years of this. There's a lot of stuff nobody could have known at the time when they were making these laws. But now that we do know, we have to make laws that make sense.
Monitor: What are some of the biggest misconceptions about water rights?
SB: Some people who buy irrigated land with a water right served by a ditch, they don’t want to irrigate it but they want to keep using the ditch as a nice water feature. They may have been told that they can protect their water right by simply running it down the ditch. Well, the short story is, if you're irrigating the bottom of the ditch, that's not a beneficial use. In an overtaxed watershed, this can create a lot of ill will. So, the idea that you have to apply the right through a specific beneficial use at a specifically described place of use is really important.
Monitor: OK. And what are the parameters of actual beneficial use?
SB: I'm not sure that there's a totally inclusive list, but all the usual suspects: domestic use, municipal use, agricultural use, industrial use, and lots of different iterations of all of those. Prior to 1973 the way people acquired water rights was they went out and put it to use. They’d dig a ditch or whatever, drill a well and put the water to use. And maybe they'd file a piece of paper with the county clerk & recorder’s office that laid claim to water.
But they didn’t have to seek any prior government approval. But the concept of priorities still existed – first come, first serve. So, if somebody felt their right to use water had been harmed by a new use, they could sue and go to court. But the remedy was all reactive. In essence, “I’ll do my thing, and if you don't like it, you take me to court.” Under that system, prior to 1973 there were actually court cases which determined the rights of all the claimants on a given stream. Once a court decree was entered, the claimants on stream could hire a water commissioner (aka “ditch rider”) to go out and enforce the water rights according to their priority in time, and actually shut headgates as necessary to enforce the decree.
But in 1973 the legislature said, hereafter, if you want a new water right, you come to DNRC and apply for a permit. Now if you want to change your water right or create a new water right, you have to apply for approval.
When DNRC receives an application for new use or a change in use, it requires the applicant to show that this new water use or change in use is not going to adversely affect any other water rights. So, there is some protection in the process, for existing water rights, at least on paper. In short, the burden is now all on the applicant to show they aren't going to harm any existing water right, which is dramatically different from pre-1973 when the burden was on existing water rights claimants to show harm.
Monitor: I’ve heard a lot in my reporting about closed basins. What is that exactly?
SB: Starting in the 1960s, Montana law provided that if any groundwater area showed signs of depletion or degradation, the department, on petition from local governmental entities or people with groundwater rights, could form a controlled groundwater area and restrict new depletions.
Then in the early 90s, after several seriously dry years, there was a growing conviction among agricultural water rights holders, municipalities, and instream flow advocates in many basins that, between the sheer number of existing claims and recurring instances of drought, available water supplies were being seriously stressed.
So, starting in 1991 and continuing in 1993, the legislature passed a series of statutes that effectively closed specific basins—including the upper Missouri Basin above Morony dam—to most new consumptive-use appropriations.
Ironically, the 1993 legislature also passed a statute specifically closing the Jefferson and Madison River basins to new appropriations, even though they are part of the upper Missouri River Basin. The basin closure statutes have changed the approach to new water uses in the basins where they are in effect.
Now, except during spring runoff – when the available water often exceeds demand – instead of going out and seeking a new water right, anybody seeking water must change the use of an existing water right.
Monitor: Like in East Helena’s Red Fox Meadows subdivision, they're potentially trying to figure out how to find and transfer water rights.
SB: When I read about that I thought this is just a quagmire. Unfortunately, it's one that the DNRC aided in because they came up with really expansive permissions for doing a whole bunch of stuff, and Red Fox Meadows is one of those.
DNRC, for a long time, turned a blind eye to how even smaller irrigation wells collectively do this. And it's not necessarily the fault of the people. They're the ones stuck with the burden, right? The problem is the whole idea of the closed basins, of having one exempt well. But if you go in and you have one exempt, it’s really 10 or 50 or however many it is.
The law says, if you do a whole bunch of those and they're the same water table, then you can't just pretend each one is separate. If they're all brought from the same aquifer and it's the same development – and that's part of what Red Fox is running into here right now – then they shouldn't be treated as separate.
You should have to basically go through the process of explaining what the impacts are going to be, and maybe even having to put in a system that's going to serve all those people. From a developer standpoint, that's really expensive, but it is probably the more appropriate response.
We've looked at the direct and immediate connections of groundwater to surface water, and that's what they're running up against. That's why the whole idea of exempt wells has come under the microscope, because there are places where they can show an impact, typically in smaller drainages. Would you see the impact of Red Fox Meadows on the Missouri? No, but you might see it on tributary streams.
The thing is, we behaved for the first 130 years of our existence as a state where water was an unlimited resource. And the relatively recent imposition of things like closed basins, controlled groundwater areas and required permits for changes to water rights – these are increasingly acknowledging that we don't have unlimited supply. And I think, to be fair, we're still struggling institutionally. We're just struggling with how to make that work.
Monitor: I see. But how would the DNRC or users know their use is impacting other users?
SB: When they review a well for its impact on surface water, there's two ways that it can affect surface water. One is that when you drill the well, you create what’s called a cone of depression. As you start cutting into that well, it draws water out of the table around the well, and that cone could make a direct impact on a stream. If the cone of depression and stream are intersecting it’s taking water out of this water table that eventually would have made it down to this tree, for instance. That's a direct impact. That's a threat. And the statute reads that if there's a direct or immediate path, then you either can't do it or you have to make some sort of adjustment.
As to impacts on other groundwater users, it’s often a matter of measuring the existing water table and projecting supply and depletions. This sort of thing provides livelihoods for a lot of consultants.
Monitor: Let’s get into historic use. Please explain how it’s important.
SB: Historic use is most often the focus of proposed changes to water rights. If we're going to change a water right to accommodate new uses, we have to determine how that water right has been used—how much water is diverted and how much consumed (lost to evaporation and transpiration), and the patterns and timings.
If a proposed change would harm the use of an existing water right, DNRC may deny the application. In effect, the review of a proposed new use or change of an existing use is largely about protecting existing historic uses.
Monitor: And that's why historic use is so important.
SB: Yeah, and a lot of the due diligence has to be not simply looking at that abstract, but going out on the ground and looking to see what went on. It’s looking at local records, talking to landowners who might still be alive.
I've actually gotten affidavits from landowners to say, X, Y and Z happened on these acres. And so if you can really dive into the weeds on it, and if it's a serious enough issue, that's what you can do. When buying a piece of property and reactivating a right, you really want to be as solid as you can, maybe go back prior to 1973. And if it doesn't have a pre-1973 date, it's not much of a water right.
This interview has been edited and condensed for clarity and flow.
Monitor: Could you tell us about water rights adjudication?
SB: Prior to 1973, the resolution of water rights claims happened haphazardly, when parties on a given stream or drainage went to court to resolve those disputes. When a court rendered judgment in those cases, it would often appoint a water commissioner to physically go to the ditches in dispute and measure the water that claimants were actually diverting. But such court decrees represent a minuscule part of the water rights claimed within the state. So as a practical matter, the totality of water use in Montana was largely unknown.
Hoping to get a handle on how water is claimed and used within the state, the 1973 legislature enacted two measures: one that required any new proposed uses — with some exceptions— to apply to the state DNRC for approval, ensuring it would not harm any existing uses; and second, that the state embark on a statewide adjudication to quantify existing claims.
The adjudication effort would require every water right claimant in the state — including state agencies — to file water right claims with Montana DNRC. The process works as follows: First, the claim is filed. Second, DNRC examines the claim. Third, DNRC issues a summary report and forwards it to the Water Court. Fourth, the Water Court issues a preliminary decree. Fifth, claimants file objections to the preliminary decree, which can lead to full-blown evidentiary hearings. And sixth, after all objections within a basin are resolved, the court issues a final decree. Pretty straightforward, right?
Monitor: Right, so why is a project that began in the 1970s still dragging on?
SB: The state has been divided into five divisions, which are then subdivided by basins. For instance, the Upper Missouri Division includes the Boulder River basin, which is basin 41E. For each basin, DNRC's task included the examination of each claim to see that the required information was included on the claim form, and then follow up with the claimant to complete the information.
Needless to say, this was a highly work-intensive process. Once DNRC has completed its effort (which is still ongoing in some basins), the water court issues a temporary decree, which triggers the right for claimants to challenge water rights claims of others. The result is that, 40-plus years on in the process, while there have been a few final decrees issued, there are still a substantial number of basins still to be finally decreed. In fact, in the upper Missouri Basin, the Water Court has yet to issue a final decree.
Technically, adjudication won't conclude until the last final decree is issued and all appeals are resolved. As to when that will be, is anybody's guess. A Water Policy Interim Committee report for the 2017 legislature estimated that all final decrees would be issued by 2028. Given where things are as of January 2026, that seems pretty optimistic to me. For a long time, I held out the hope that it would happen in my lifetime. Now, at 76, I am not so sure that will happen.
Monitor: Could the water rights adjudication play into the state's decision with the former ASARCO water rights in East Helena?
SB: As a practical matter, given that the Montana Environmental Custodial Trust has proposed to transfer (and may already have transferred) the rights that it offered to the City of East Helena to Montana Fish, Wildlife, and Parks, the status of those rights as affected by the adjudication may be moot. Water rights can be transferred and their places and purposes of use can be changed while the adjudication is ongoing. Regardless of who owns those rights, the adjudication will, at least theoretically, determine the amount of water represented by each water right claim.
If East Helena had accepted the State's offer for the industrial-use water, the city would have had to apply to DNRC to seek a change in purpose of use and prove the amount claimed in the adjudication was in fact accurate, and show that the change in purpose, place of use, etc., would not adversely affect other water rights. All of that could be done before the adjudication is complete.
Monitor: OK, and if someone has a right to water connected to the Gallatin River, what happens to that claim when the water is gone?
SB: One of the things that would happen is that adjudication would provide a roadmap for water commissioners in each basin, for ditch riders to review. But again, other states have this in spades. We don't. I think the legislature passed a bill that says if you have a preliminary decree in your basin, you can get a water commissioner to regulate water use in that basin with this temporary decree. It’s not final, and some things in that decree may change, but it provides a way to address that priority.
But even if the system goes into place and we have water commissioners on critical streams, and the Gallatin is one of those, if things continue the way they are in terms of snowpack and climate change, what I can imagine happening is that you're going to see the water go away from the most junior of those rights. They're not going to have anything they can use.
As it gets worse, senior rights holders will begin to experience the same thing. And in part, that's what drove a lot of these basin closures. It was to say, let's not keep adding to the pain here. But there's not a happy answer here. The likelihood is that even if we do everything we can within the constraints of the law to make this work – everybody gets their monitoring devices and we have water commissioners who know what they're doing – even with all of that, there's going to be some people who drop off this cliff because they're junior.
Monitor: And is it mostly surface water, or groundwater, these people have rights to?
SB: It's connected. An awful lot of the early subdivision stuff around here, those are all wells, city or municipal groundwater. Here [in Helena], it’s a combination of 10 Mile Creek, some groundwater coming up, Orofino Gulch, and the Missouri. So a lot of it’s surface water. Water folks here will tell you the best water we have is 10 Mile Creek. But it's not enough. In the summer months, they have to switch to Missouri River water. The cost increase of delivering that water to the households is enormous.
In Gallatin County municipalities, their surface water is rapidly going towards failure, and they've launched residential water conservation efforts. We’ve tried to do that here, but it's not been as successful. And one step they’re talking about now is a pipeline from Canyon Ferry Reservoir to Bozeman, which would be enormously expensive.
Monitor: Looking forward, how do you see Montana water law evolving? What reforms might make the state’s water regulations more transparent or successful?
SB: One key is getting Montana's water administration to the point where we have a handle on existing uses. That adjudication process, for all my frustration with it, is still one of those pieces of the evolution that’s taking us from here to there.
For places like Red Fox subdivision this probably isn't feeling like an evolution right now. But we are seeing growing awareness that we can't just keep doing this accumulation of groundwater wells in developments that are fairly intensive users. At the same time, sometimes solutions come out of conflict. The Crazy Mountain Resorts and Red Foxes –they could drive some of the evolution. Hopefully there's a critical mass by the next legislative session.
It’s about recognizing that if you're going to build something that invites people to come, you need to at least on paper look at it on the front end and establish a limit. In the Broadwater case [Horse Creek Hills, which spurred the February 2024 decision against exempt wells], they didn't look at it at the front end. They just accepted the development.
We need to have a culture of review when it comes to the water, the DNRC piece of it, and the county level, reviewing these developments that are going to increase demand. Right now, we don’t have that culture and it doesn't work very well. But I think we've at least seen baby steps towards that, such as in the Broadwater case, and maybe we’ll see more as we go down the road.
The goal is to get to a point in our culture where we say, “Okay, you're going to put in a development here, a Horse Creek Hills or Red Fox, that's fine. But we’ve looked at it on the front end and you don't get to have four acres of lawn. You don’t get to have this or that.” We can come up with a laundry list of water conservation measures that must happen in those developments. And if they don't, you don't get approval.
A lot of dealing with existing challenges and growth is going to be changing the culture to making clear that the nice bluegrass lawn and 20-minute showers and other craziness we have now need to go away. And some of that will be by acculturation.
DNRC has an arm, the Drought Planning Office, and a lot of their work is educational. They go into basins and work to get people to do things that are more drought-resistant. I know some people there, and they're doing good work, but I don’t know if they are empowered enough to expand the reach of that.
We need to find a way to educate a decent chunk of our population, to bring their hearts and minds to the idea that we have to change behaviors so we're not just using up our water resources. That would go along with a more vigilant review and regulatory process, plus the DNRC could change new water rights and have, parallel to that, a good outreach and educational program for people who might be contemplating doing it and people ready to be more sustainable. The Southwest US has done more of this sort of thing than any place else, some successfully.
Monitor: And what steps might ranchers take to be more water-efficient?
SB: One of the things they can do is have on their diversion some form of measuring device. If it's in a ditch, it'll be what they call a flume. Flumes have to be placed necessarily precisely to get the water flow. That's something that is increasingly getting done. Measuring devices allow for diversions but don't block off the entire stream, and that's a good thing.
As we get further down the road on this, water disputes are going to crop up more. The whole thing is going to get more contentious, so having an accurate measurement of your water is going to be really important. In terms of things you can do to be more efficient in your use of water, you can line your ditch. That's not a cheap option. But it's something that some places have done, so they're not losing a lot of water out of the bottom of the ditch.
Some of the other things that come up have to do more with how they apply their water and where they apply their water. Scrapers do that very efficiently, but they're not necessarily the least consumptive thing that you can do. The classic example is, I can grow one pound of hay per acre as quickly as three tons of hay per acre. But that's three times as much water going to the plants, so the whole issue of what makes us more efficient is fraught with its own complications.
For a lot of the full-time ditches, reducing the flow was always very cumbersome – the effort it takes to adjust that. Now, some of the better-funded ranches have started turning to remote control, like one of my old leases in the Blackfoot. They can remotely get a reading and control the diversion to reduce flows. As technology advances, there's going to be an awful lot of challenges for modifying these things.
Monitor: That's often the problem with conservation: it's great once you’ve done it, and usually saves money in the long run, but it's very expensive to get there.
SB: Other states are way out in front on this. They have more stuff going on in terms of restoration work and flow and leadership among the agricultural community that has led the change. It's been interesting to see that play out, because it's been very clear to me that a lot of the older hands in Montana don't have the resources. But if you can work with them, not only will they work with you, but they'll become your advocates.
Whereas, I did some projects with wealthier ranchers, and when they didn't quite get what they thought they wanted, all of a sudden, I was Satan's right-hand man. That's given me a lot of heartburn, because I see it happening more and more all over the state, like the golf course in the Crazies (to which Boulder sold bulk water).
Monitor: OK, so what keeps you up at night about the current system?
SB: The possibility that we've passed some tipping point and that even everything we can do will not be enough to fix this.
In Rock Creek, where I worked years ago, the water always ran across an open flat all the way into the fall. But in the last two years, there’s nothing. And I don't know if there's been any major change in water use out there. What I do know is that the snowpack has been less. It's gone away quickly. And it's a system that is very much water table-driven.
All these pieces are dependent upon snowpack and water table and everything else. Right now, it's feeling like it's not enough, and I don't know what enough is. So that's what keeps me up at night, watching stuff that we worked on with really good people doing some amazing work, it's like spitting into the wind.
This interview has been edited and condensed for clarity and flow.