DOJ presents how Montana defends water rights on school trust lands and explains the adjudication process

At the March 17, 2025, meeting of the State Board of Land Commissioners in Helena, Aislinn Brown, Bureau Chief in the Department of Justice’s Agency Legal Services Bureau, presented "Navigating Montana’s Water Rights," an informational overview of how the State evaluates and defends ownership claims in the water-rights adjudication process.

Brown told the board that, under Montana law and the Land Board’s fiduciary duties, "The State is the owner of water rights developed on school trust land." She clarified that the State does not claim ownership of wells or other improvements located on private land and that lessees are compensated for immovable improvements remaining on school trust land at lease termination (MCA 77-6-302). Brown also explained that temporary use of an existing private water right on school trust land does not create State ownership (MCA 85-2-441).

The presentation reviewed foundational Montana water-law concepts — appropriation followed by beneficial use, appurtenancy to the land, and the prior-appropriation doctrine — and summarized the adjudication landscape: Brown said more than 250,000 pre-1973 water rights are in adjudication across 85 basins and that the State has asserted ownership interests in about 10,000 pre-1973 water rights used on school trust lands. FTLD (Forest and Trust Lands Division) reviews proposed decrees, claim files, aerial imagery, lease documents and historical records to determine whether to recommend objections to protect State ownership interests. Brown emphasized that objections, settlements and Water Court hearings provide due process and that the Water Court ultimately decides contested ownership claims.

Brown illustrated the process with examples ranging from priority dates predating State ownership (which can negate a State claim) to cases where place-of-use descriptions are likely inaccurate and administrative correction or settlement is expected. Board members asked follow-up questions during the presentation; the minutes record extended exchanges among Aislinn Brown, James Brown (Commissioner of Securities and Insurance) and Governor Greg Gianforte seeking clarifications about the application of priority dates, temporary-use rules and the objection process. The item was informational; the board did not take formal action on the presentation.

The presentation cited Montana constitutional water-language, the 1973 Montana Water Use Act, and court decisions including Andrus v. Utah and Schutter v. State Board of Land Commissioners. The board received the information and had no public comment on the item.