Last week the Supreme Court of Montana held that there is no implied private right of action for judicial enforcement under the Montana Water Use Act (Act). In Lyman Creek, LLC v. City of Bozeman, DA 19-0112 (Mont. 2019), the Court determined that the Act reserves the right of enforcement only for the Montana Department of Natural Resources and Conservation (DNRC), the attorney general, and the county attorneys.
The scarcity of water in the western United States has created a contentious environment for water users. The Montana Water Use Act was adopted to provide for the “administration, control, and regulation of water rights.” Specifically, the Act prioritizes water uses by a “first in time, first in right” system and authorizes the District Court to supervise water distribution disputes between water appropriators. Additionally, the Act provides a judicial enforcement mechanism when water uses violate provisions of the Act.
This case stemmed out of water rights in Lyman Creek – rights that both Lyman Creek, LLC (Lyman) and the City of Bozeman (City) possess. Lyman did not assert that the City was interfering with its water rights but, rather, that . Rather, Lyman alleged that the City was committing separate violations of the Act and therefore Lyman sought to enjoin the City from committing further violations.
In reaching its decision denying Lyman relief, the Court focused on the distinction between the protection of a water right and the enforcement of the Act. As previously stated, the Act provides private parties with a right to protect their water rights in appropriation controversies under § 85-2-406. The Court was clear, however, that this should be read separate and apart from § 85-2-114, which provides for judicial enforcement due to violations of the Act. The Court then analyzed a number of factors including: (1) whether an implied right of private enforcement was consistent with the statute as a whole; (2) the intent of the legislature considering the statute’s plain language; (3) the avoidance of absurd results; and (4) any construction of the statute by the agency charged with its administration. Ultimately, Lyman failed to convince the Court that there was an implied private right of action for enforcement under the Act. Therefore all enforcement actions for violations of the Montana Water Use Act must be brought by either the DNRC, the attorney general, or the county attorneys.
This decision is consistent with Montana’s view on water rights – that is, Montana owns the water and individuals merely possess a right to use it. As such, it is unsurprising that the Court would find that the only State actors have the right to enforce water violations under the Act.