WATER LAW

Prior Appropriation

History:
The prior appropriation doctrine emerged out of California in the 1800’s after miners developed a water use system as an alternative to the riparian water system prevalent in England and the eastern United States. The prior appropriation doctrine emerged because it could adapt flexibly to the needs of miners, as it allowed diversion to a distant location and simply required use of the water for a beneficial purpose. Western states adopted the miners’ approach through both court decisions and codification, and the doctrine of prior appropriation became the law of the western states, including Montana.

The doctrine of prior appropriation in Montana and throughout the West operates under the philosophy "first in time, first in right." Under this doctrine, the first person to divert and use water from a stream acquires a senior right to the quantity of water used. Later claimants exercise their rights in descending order of priority and are referred to as junior users. In times of shortage, those users with the oldest water rights are entitled to take their full rights from the stream before those with younger rights. Oftentimes, not enough water is left instream to support fisheries.

Traditional elements of a valid appropriation under the prior appropriation doctrine are as follows:

• Intent: An appropriator must intend to use the water.
• Diversion: Except for an instream beneficial use, an appropriator must divert the water.
• Beneficial use: To perfect an appropriation, the water must be applied to a recognized beneficial use.
• Priority access: Once the water is put to a beneficial use, the water right receives a priority date.
• Definite quantity: The quantity of an appropriation right must be fixed and definite.

Beneficial Use:
The Montana Supreme Court has recently stated that beneficial use is the touchstone of the prior appropriation doctrine, and that prior to the enactment of the Montana Water Use Act in 1973, Montana explicitly recognized the use of water for fish, wildlife and recreation as beneficial uses. The Montana Water Use Act also recognizes non-consumptive and instream uses for fish, wildlife and recreation:

"Beneficial use", unless otherwise provided, means:

(a) a use of water for the benefit of the appropriator, other persons, or the public, including but not limited to agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation, mining, municipal, power, and recreational uses.” 85-2-102 (2)(a), MCA.

The prior appropriation doctrine in Montana, therefore, recognizes instream flow rights for fish, wildlife, and recreation. As such, water right holders in Montana can temporarily lease all or a portion of their consumptive water rights to MWT for instream use to benefit fish, wildlife, and recreation.