Settlement Reached in Horse Creek Hills Water Rights Victory
Author: Quincy Johnson, Communications Director Upper Missouri Water Keeper
Settlement Reached in Horse Creek Hills Water Rights Victory
Quincy Johnson
Communications Director Upper Missouri Water Keeper
Last week, Upper Missouri Waterkeeper reached a settlement in the Horse Creek Hills case, recouping the multi-year costs necessary to securing a precedential victory that protected senior water property rights from exempt wells and reaffirming the independent duty of local government to identify water resource impacts of subdivision development. The settlement comes on the heels of a Montana Supreme Court decision awarding attorney fees in the case. Therefore, the Supreme Court affirmed that prevailing parties are entitled to recover fees and costs when a case has statewide significance and is essential to protecting important public rights and interests.
“These attorney fees are a small price to pay compared to the irreparable harm the Horse Creek Hills development would have caused to our senior water rights, agricultural operations, and critical wildlife habitat,” said Charles and Carole Plymale, generational ranchers, longstanding senior water rights holders, and plaintiffs in Upper Missouri Waterkeeper et al. v. Broadwater County and DNRC. “We’re grateful to see justice served and the government held accountable for its wrongdoings. This decision is an important affirmation that all Montanans have the ability to stand up and defend their rights.”
In February 2024, Upper Missouri Waterkeeper won a landmark lawsuit, Upper Missouri Waterkeeper et. al. v. Broadwater County et. al... This victory affirmed the duty of local government to evaluate off-site water resource impacts before approving subdivisions, which is already reshaping land-use decisions across Montana, limiting the misuse of “exempt” groundwater wells, and easing development pressure in rural valleys.
Under the Montana Declaratory Judgements Act, Montana courts may award attorney fees when “necessary and proper” and plaintiffs vindicate important public rights, as was done in this case. Plaintiffs’ attorneys in the Horse Creek Hills case worked pro bono. When attorneys requested fees after the significant victory in Judge McMahon’s February 14, 2024 Order, the request was denied. Plaintiffs then appealed to the Supreme Court and, after winning the right to fees at the Supreme Court, are pleased to have now reached a settlement recapturing 80% of the fees due.
“Fee recovery in cases like Horse Creek Hills is critical. Public interest fee recovery is crucial for enforcing civil rights and helping marginalized groups access justice, ensuring legal aid for important issues like environmental protection,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “Without the ability to recover fees after successfully defending the public interest, the high cost of litigation creates a chilling effect, discouraging citizens from standing up for their rights, and gives government and wealthy special interests a perverse incentive to continue harmful behavior, knowing it’s costly and difficult for ordinary Montanans to push back. We can’t rely solely on the goodwill of lawyers or nonprofits to take on all the bad actions committed by our government, which is why this settlement is such an important victory for accountability.”
As litigation becomes increasingly important for protecting public participation, water rights and water resources, and the health of our communities and ecosystems, it’s critical that those who step up to defend the public interest aren’t penalized for doing so and are eligible for recovering costs for illegal actions and government failures. Litigation requires enormous resources, and fee recovery is essential to ensuring that public-interest organizations can hold the government accountable and enforce the constitutional rights that Montanans rely on.
“It is horrifying that we have to fight our own government to save the environment.” - Ansel Adams
