## Facts

- Montana applies the prior-appropriation doctrine to surface-water rights (“first in time, first in right”).
- Steven Kelly held senior water rights on the Teton River and used the river at a downstream location in Montana.
- Teton Prairie LLC held junior water rights and diverted water from the same river at a point roughly 200 miles upstream from Kelly.
- During a low-flow period, Kelly concluded the river would soon run dry and that he would be unable to divert the quantity of water to which his senior rights entitled him.
- Kelly made a senior “call” on upstream junior users, including Teton Prairie, demanding that they cease diverting water until Kelly’s senior rights were satisfied.
- Teton Prairie refused to curtail its diversion even though its rights were junior, arguing the call was “futile” because, given the long distance and intervening losses, water saved by Teton Prairie would likely not reach Kelly in usable quantities.
- Kelly sued to enforce the call and sought injunctive relief to stop out-of-priority diversion.
- Kelly presented hydrologic testimony that if Teton Prairie stopped diverting, some amount of water would have reached Kelly’s point of diversion.
- The district court ruled for Kelly on summary judgment, rejected Teton Prairie’s futile-call argument, and entered an injunction restricting Teton Prairie from diverting out of priority.
- Teton Prairie appealed to the Montana Supreme Court.

## Issues

1. Whether Montana’s prior-appropriation doctrine entitled a senior appropriator to enforce a call requiring a junior appropriator to stop diverting when the senior’s right was not being met.
2. Whether Teton Prairie established a futile-call defense by showing that curtailment would not result in usable water reaching Kelly.
3. Whether the district court properly granted injunctive relief barring out-of-priority diversion by Teton Prairie.

## Decision

- The Montana Supreme Court affirmed the district court’s judgment.
- The Court held that a senior appropriator may enforce priority against a junior appropriator when the senior right is not being satisfied.
- The Court held that Teton Prairie did not meet its burden to prove the call was futile because the record supported the finding that curtailment would have delivered some usable water to Kelly’s location.
- The Court upheld the injunction as a proper equitable remedy to prevent continued or future out-of-priority diversion.

## Legal Principles

- Under Montana’s prior-appropriation doctrine, senior water-right holders are entitled to have their rights satisfied before junior appropriators divert during times of shortage.
- A “call” is an enforcement demand by a senior appropriator requiring junior users to curtail diversions until senior rights are fulfilled.
- The futile-call doctrine is a defense to enforcement only when shutting off the junior diversion would not produce usable water for the senior; the junior appropriator bears the burden to prove futility.
- A court may grant injunctive relief to stop ongoing or threatened out-of-priority diversions, and such equitable relief is reviewed for abuse of discretion.

## Conclusion

The Montana Supreme Court affirmed summary judgment and an injunction enforcing Steven Kelly’s senior water rights on the Teton River, holding that Teton Prairie’s junior diversion had to yield to the senior call and that Teton Prairie failed to prove the call was futile because evidence showed curtailment would have delivered some usable water downstream.


Kelly v. Teton Prairie LLC, 376 P.3d 143 (2016)