## Facts

- Montana’s statewide general stream adjudication required determination of existing water rights in the Missouri River basin (Basin 41I).
- The Montana Department of Fish, Wildlife and Parks (DFWP) filed five pre-1973 water-right claims involving diversions used for fish, wildlife, or recreation purposes.
- The Water Court questioned the claims’ validity, reading prior precedent as suggesting that pre-1973 law did not recognize fish, wildlife, or recreation uses as appropriative beneficial uses except through specific statutory “Murphy rights.”
- DFWP appealed, and the Montana Supreme Court accepted review to correct confusion in the prior case law and to address whether (1) fish, wildlife, and recreation are beneficial uses for appropriation and (2) a diversion is required to establish an appropriative right.

## Issues

1. Whether pre-1973 Montana law recognized appropriation rights for recreation, fish, and wildlife uses only through statutory “Murphy rights,” as some readings of prior precedent suggested.
2. Whether a diversion is required under pre-1973 Montana law to establish an appropriative water right, or whether instream non-diversionary uses may be appropriated.

## Decision

- The Montana Supreme Court reversed the Water Court’s disposition of DFWP’s claims and remanded.
- The Court rejected the view that pre-1973 appropriations for fish, wildlife, and recreation were limited to statutory “Murphy rights,” disapproving prior precedent to the extent it implied otherwise.
- The Court held that diversion is not a categorical requirement for an appropriation where the claimed beneficial use is instream.
- The Court directed the Water Court on remand to evaluate the claims under clarified standards for beneficial use and the elements of appropriation, rather than excluding claims based on the nature of the use or the absence of diversion.

## Legal Principles

- “Beneficial use” is the basis, measure, and limit of Montana water rights, and pre-1973 law permits a broad range of beneficial uses, including instream fish, wildlife, and recreation uses.
- Pre-1973 appropriative rights for fish, wildlife, and recreation are not confined to special statutory instream “Murphy rights.”
- The essential elements of an appropriation are intent to appropriate, notice to others, and actual application of water to a beneficial use.
- A physical diversion is not inherently required to perfect an appropriative right when the intended beneficial use is instream and the claimant can otherwise prove the elements of appropriation.
- In adjudicating pre-1973 rights, courts must apply the law governing when the right was initiated; later statutory frameworks do not retroactively narrow previously cognizable beneficial uses.

## Conclusion

The Montana Supreme Court held that pre-1973 Montana law recognizes fish, wildlife, and recreation as beneficial uses capable of supporting appropriative water rights and that an appropriation for instream use is not automatically invalid for lack of diversion; the case was remanded for the Water Court to reevaluate the claims under these standards.


In re Adjudication of the Existing Rights to the Use of All the Water, 55 P.3d 396 (Mont. 2002)