Water Rights: A Critical Montana Issue
 | Author:
Eliza DuBose, Reporter for The Monitor; Boulder, Montana
The Boulder Monitor, Boulder Montana |
Water Rights: A Critical Montana Issue
Eliza DuBose
Reporter for The Monitor, Boulder, Montana
This article was originally published in the inaugural East Helena Monitor on December 17, 2025. It is reprinted with permission of The Monitor in Boulder, Montana.
Water has been all over the headlines lately, particularly 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.
This is part 1 of 4
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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.
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Image 1 Caption: Eliza DuBose, Boulder Monitor Reporter
