Held v. Montana Decision: Montana is violating the rights of young people with policies that prohibit the state from considering climate change effects when it reviews coal mining, natural gas extraction and other fossil fuel projects
The 103-page decision by Judge Kathy Seeley in the Lewis and Clark County District Court in Helena marked a major victory in the first youth-led climate case to reach trial in the U.S. and could influence similar cases nationwide.
16 plaintiffs filed the lawsuit in 2020, then between the ages of 2 and 18, claiming the state’s permitting of projects like coal and natural gas production contributed to climate impacts to Montana’s environment, harming the young plaintiffs.
The case was brought against the state, the governor, the Montana Department of Environmental Quality, the state’s public commission office, as well as other state departments. The plaintiffs’ claims have been confirmed, as Seeley states that the plaintiffs, now aged 5 to 22, have a “fundamental constitutional right to a clean and healthful environment.” Seeley also held that policies that prohibit state agencies from considering climate and emissions impacts when approving fossil fuel projects are unconstitutional.
Montana is one of only three states that have the affirmative right to a healthful environment in their constitutions. That legal language (see below) was a cornerstone of the Held v. Montana case, which had young people testify directly about climate impacts upending their lives, including lead plaintiff Rikki Held, 22, who testified that droughts have left “skinny cows and dead cattle” on her family’s ranch in eastern Montana and wildfires have made ash fall from the sky. Climate scientists, policy researchers, and a delegate to the 1972 Montana Constitutional Convention also testified on behalf of the youths.
(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. (2) The legislature shall provide for the administration and enforcement of this duty. (3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.
Mont. Const. art. IX., § 1.
In the June 2023 trial, Plaintiffs argued that despite its sparse population, Montana is responsible for a large share of global emissions, through the major production of coal, oil, and gas, as well as pipelines and other infrastructures that are used to ship those fuels elsewhere.
Expert witnesses presented scientific facts concluding that there is an overwhelming scientific consensus that the Earth is warming as a direct result of greenhouse gas emissions, primarily from burning fossil fuels. Judge Seeley’s decision cited those expert witness testimonies, as well as the evidence that Montana’s temperatures are expected to increase, and with that, increased impacts of climate change, such as heat waves, that have adverse impacts on young people’s mental health and quality of life.
“Youth plaintiffs have experienced past and ongoing injuries resulting from the state’s failure to consider [greenhouse gas emissions] and climate change, including injuries to their physical and mental health, homes and property; recreational, spiritual and aesthetic interests; tribal and cultural traditions, economic security and happiness”.
The state argued that climate policy should not be set by courts and the plaintiffs had not proved that the global crisis could be attributed to Montana’s relatively small emissions.
A spokesperson for Montana Attorney General Austin Knudsen (R) called the ruling absurd, and said in a statement that the state will appeal the decision.
This “legal theory has been thrown out of federal court and courts in more than a dozen states,” according to spokesperson Emily Flower. “It should have been here as well, but they found an ideological judge who bent over backward to allow the case to move forward and earn herself a spot in their next documentary.”
What This Means
Judge Seeley issued declaratory relief, which will have an impact on Montana’s policies moving forward by “invalidating statutes prohibiting analysis and remedies based on GHG emissions and climate impacts.”
“By prohibiting consideration of climate change, GHG emissions, and how additional GHG emissions will contribute to climate change or be consistent with the Montana Constitution, the MEPA Limitation violates Plaintiffs’ right to a clean and healthful environment and is facially unconstitutional,” the ruling said.
Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, said Seeley’s findings, including that climate change is a serious health and environmental threat, could “become an inspiration” for lawsuits in states with similar constitutional provisions and make it more difficult for defendants to wave away climate concerns. “I think this is the strongest decision on climate change ever issued by any court.”
Lawsuits that use a safe climate as an affirmative human or constitutional right are abundant in courts worldwide, but success has been mixed for advocates filing these lawsuits in the US. That is slowly changing. In addition to this ruling, the Hawaii Supreme Court recognized a human right to a stable climate in a March ruling against a biomass power plant developer.
The clear, constitutional language established in this ruling may also boost the push for affirmative climate rights in more than 15 other states considering similar provisions in their own constitutions, according to Maya van Rossum, founder of the Green Amendment for the Generations national movement. “That’s really important, because it’ll help make sure that when these kinds of constitutional provisions are passed in other states, they’re even stronger when it comes to climate,” van Rossum said.
Youth-Led Climate Cases
The case was just one of several youth-led climate cases, seeing young climate activists suing governments across the US over degradation of the climate through oil and gas development. Another of those cases is Juliana v. US, a landmark lawsuit against the federal government that was greenlighted to proceed to trial by an Oregon district judge in June after being dismissed by the 9th U.S. Circuit Court of Appeals in 2020. Another case filed by young people in Hawaii against the state’s Department of Transportation is scheduled to go to trial next year, making it the second in the country to do so.
Lawyers from legal nonprofit Our Children’s Trust spearhead the cases and lauded the “sweeping” Monday victory in Montana. “Today, for the first time in U.S. history, a court ruled on the merits of a case that the government violated the constitutional rights of children through laws and actions that promote fossil fuels, ignore climate change, and disproportionately imperil young people,” Our Children’s Trust Chief Legal Counsel Julia Olson said in a statement. “In a sweeping win for our clients, the Honorable Judge Kathy Seeley declared Montana’s fossil fuel-promoting laws unconstitutional and enjoined their implementation.”
Perhaps the most common and legally mystifying water right, 602 Water Rights are distinct from those discussed in Parts I or II of this series in that they do not require full review by the Department of Natural Resources. These water rights are typically for domestic uses and are limited to a flow rate of 35 gallons per minute and a total volume of 10 acre-feet per year. While these parameters seems simple on their face, administration and enforcement has proven to be a different story. This is particularly true as water uses in Montana change with population trends. Particularly in the Western half of the State, these exempt water rights are more and more often capitalized on for subdivision development as “exempt wells.”
Thirty-five gallons per minute is a relatively substantial flow rate. Ten acre-feet is, likewise, a substantial volume of water (think one acre of land filled with 1 foot of water, and then multiply that by 10). Paired with the limited regulatory review required to obtain this type of water right, 602 water rights are widely relied upon by new water users to claim water rights appurtenant to their property. Below is a brief guide for filing a 602 water right in Montana.
This form is used for water rights that divert no more than 35 gallons per minute and 10 acre-feet per year. Below is a step-by-step guide for researching and compiling the necessary information to claim a 602 Groundwater Certificate in Montana:
Provide Legal Property Ownership Information. This information will usually be obtained directly from the recorded deed granting you ownership. If the property is owned in Trust or by an Entity (LLC, corporation, etc.), you will also be required to specify the name of the Trust or legal entity.
Confirm that Water Has Been Put to Beneficial Use. If you are unable to confirm that the water you are claiming has already been put to beneficial use, then you are not able to lawfully file Form 602. For instance, if you are building a house but have not yet applied water for domestic use, you must wait until you have started to apply the water towards your beneficial use before filing Form 602.
Describe Means of Diversion. Identify if your groundwater diversion is via well, developed spring, or pit/pond, as well as providing specifics if applicable.
Describe the Flow Rate Used. Identify in gallons per minute the Flow Rate you are pumping by performing the 5-gallon bucket test, or larger tank if necessary. 300/number of seconds = flow rate in GPM.
Other Wells, Developed Springs, Pits on Property. Identify whether there are any other similar groundwater diversions located on your property and include a map of your property indicating the location of each diversion, the distance apart each diversion, and the water right number associated with each diversion if available. The DNRC will accept both hand drawn maps or printouts.
Other Water Users and Water Rights Associated with Point of Diversion. Identify and confirm whether any other water user relies on the well, developed spring, or put you have identified. Additionally, the DNRC requests that you explain the situation and provide water right numbers for any other existing water right.
Purpose & Period of Use. Identify the purpose of your water right as either for domestic, lawn & garden, crop irrigation, livestock, or some other purpose (with description of that purpose). In addition, you must identify specifics of the use such as number of dwellings supplied on the property, size of lawn and garden areas, types of crop and number of irrigated acres, number and type of livestock and if tanks are used, and generally period of use throughout the year.
Point of Diversion. Identify the legal description and location of the point of diversion for the groundwater diversion.
Place of Use. Identify the legal description and location of the place of use where the water has been beneficially applied.
Confirm whether the place of use is the same as the point of diversion for the water right, including providing the legal description if the answer is no.
Affidavit of Ownership or Written Consent. The applicant must sign, under penalty of perjury and the laws of the State of Montana, that the foregoing information provided is correct AND ALSO that the applicant has “possessory interest in the property where the water has been put to beneficial use and [has] the exclusive property rights in the groundwater development works OR [has] attached written consent of the person owning the groundwater development works and/or written notification to the landowner pursuant to § 85-2-306(1) MCA”.
After submitting your application, the DNRC will conduct a brief compliance review to ensure that you’ve provided all required information. After determining the document is sufficient and complies with the law, the DNRC will issue a new Water Right Abstract and Water Right Number for the water right. The priority date associated with your new water right will correspond with the time of filing the Notice with the DNRC. In addition, the DNRC will create a Claim File for the Water Right, which acts as an electronic file and records-keeping document for all things associated with the water right, including your initial Form 602 and any supplemental documents or maps.
These water rights are not included in basin-wide adjudications at the Water Court, but that doesn’t mean you shouldn’t still be diligent about your lawful use of water pursuant to your water right and any other water users that could have an impact on your ability to fulfill that water right. Further, given the nature of the 602 Water Rights and limited review by the DNRC, it is possible to find yourself adversely impacting existing water users even unknowingly and subsequently needed to manage your water use with these limitations in mind.
Of course, the potential for conflict or confusion is almost always present when it comes to water rights in Montana, but our team at Ferguson & Coppes is here to help solve those problems if and when they do come up. Please contact our office for a free consultation with one of our experienced water law attorneys.
To learn more about how to file for a new groundwater permit in Montana (Form 600 GW), click here. To learn more about how to file for a new surface water permit in Montana (Form 600 SW), click here.
For information on the history of Montana Water Law, check out this blog post.
Obtaining any new Montana water right can be a daunting endeavor. Picture this: you’ve moved to Montana and you’ve found the perfect property (the one with the pristine creek meandering through) and you’ve gotten some ideas for how might put the water that appears available to good use. Of course, the water is on your property and you are in the Wild West, but how do you know if you have the legal right to use it?
As we mentioned in Part I of this series, obtaining or confirming a water right in Montana often requires a bit of research. If you’re feeling uneasy about conducting this research yourself, you’re not alone! Water rights and usage in Montana are complex and can easily turn into highly contentious disputes even among those who formerly considered themselves friends. As the questionably attributed but keenly observant saying goes, “Whiskey is for drinking, water is for fighting.” As water and natural resource attorneys, we find this saying validated more and more each day.
Of course, at Ferguson & Coppes, our goal is always to keep this fighting to a minimum unless the situation calls for it. Therefore, we like to ensure that clients and potential clients have access to as many resources as possible in order to make the right decision for themselves and avoid future conflict over that choice. This blog is intended as a resource for those interested in obtaining a Surface Water Permit from the DNRC via Form 600 SW. Below please find a step-by-step guide for obtaining a water right to divert more than 35 gallons per minute or 10 acre-feet per year from any surface water source owned by the State of Montana.
Step 0. Meet with DNRC to discuss the proposed project & complete Pre-Application Checklist.
This is an optional meeting provided by the DNRC and comes with the added incentive of a $200.00 reduction in the filing fee for simply attending. In order to qualify, a signed copy of the Pre-Application Checklist must be returned to the DNRC with a completed application within 6-months of the date of the pre-application meeting. The DNRC also encourages that attendees are joined by their attorney, consultant, or other individual with detailed knowledge of the proposed project. There are a number of reasons why it is recommended to have an attorney present in particular, as discussed in some detail below. If you are unsure about certain aspects of your proposed project but are still interested in taking advantage of this incentive, we recommend you contact us at Ferguson & Coppes for a free consultation with an experienced water law attorney.
Step 1. File Form 600 SW: Surface Water Application for Beneficial Use Permit.
In addition to paying the required filing fees and providing a valid, signed Pre-Application Checklist if applicable, the DNRC requires that the applicant submit Form 600 SW – Surface Water Application for Beneficial Use Permit. Below is an outline of the information required to satisfy the application criteria:
Obtain Required Reports & Addendum Information. This includes the following:
Storage Addendum: required if you plan to store water, but not required for water tanks and cisterns. In this case you may also need to submit a Reservoir Addendum.
Water Marketing Addendum: required if the purpose of the permit will be to market or sell water.
Basin Closure Area Addendum: required if your point of diversion is located in a basin closure area. If yes, you may also need to submit a Hydrogeologic Assessment Report.
Sage Grouse Habitat Project Review: required if your diversion and/or place of use are located within an area designated as sage grouse habitat.
Notice to Existing Users. Provide written notice of the application to each owner of an appropriation right sharing the point of diversion or means of conveyance (canal, ditch, flue, pipeline, or other constructed waterway). The DNRC’s water query system is a useful resource for researching the source and point of diversion that you intend to claim, but if you have any questions, it is often helpful to consult a water law attorney.
Gather & Provide Information Regarding Use of the Water. This generally includes the following:
Purpose & Diversion Information: This includes providing the name of the source (stream) from which you intend to divert, whether the use is temporary, the purpose for which you intend to use the water, your proposed means of diversion, total acreage irrigated (if applicable), the period of diversion and use, and, finally, the flow rate and volume needed.
Point of Diversion: This includes providing the legal description of the point of diversion of the water right, as well as specifics such as well depth and spring name, if applicable.
Place of Use: This includes providing the legal description of the physical location where the water will be applied for beneficial use. Geocodes can often be identified by contacting your county’s Clerk and Recorder, or by vising your local GIS website and/or the Montana Cadastral. If you’re unable to identify or unsure of the legal description that you’d like to claim as the place of use, we also recommend calling our office for a short consultation.
Map: This includes providing either a USDA Aerial Photo or USGS Quad of the diversion and place of use. It is important to note on the map the section corners, township, range, and N-S direction. You should also identify the proposed point of diversion, the proposed place of use, and any conveyance facilities or routes use to convey the water.
Supplemental Water Rights: This is required if there are any other water rights used on the proposed place of use for the same purpose, or if the application is for water intended to supplement contract water from a Federal Project, ditch company, or other source.
Physical Surface Water Availability: This includes confirming whether a gauging station exists on your source, that you have obtained at least one stream flow measurement from the source from each month of the requested period of diversion and providing those results (this is considered your Physical Availability addendum), any variances approved by the department and whether you have requested a variance from measurement requirements which were approved by the DNRC (on ephemeral sources only), along with applicable variance approval.
Adverse Effect. To comply with Montana law, you are required to provide a detailed description of your plan to ensure that existing water rights will be satisfied during times of water shortage.
Adequate Diversion Means and Operation: This includes confirming whether you have plans to measure your diversion and use, providing a description of how the system will operate from the point of diversion to the place of use, confirming whether the system will be designed to discharge water from the project and providing a detailed description if so, and finally, providing a detailed description and diagram of the preliminary design plans and specifications for the proposed diversion and conveyance facilities (including equipment used to put the water to beneficial use).
Beneficial Use: This includes providing an explanation of the requested flow rate and volume and why it is needed for your intended purpose. If the purpose includes in-house domestic use, you must also submit the applicable Certificate of Subdivision Approval issued by the County in which the property is located.
General Project Plan & Proposed Completion Period: This includes providing an estimate of how many years you expect to need to complete the project and begin applying the water for its intended use as well as explaining why this requested time is needed for the project.
Affidavit & Certification. This section requires the applicant to certify, under penalty of perjury and under the laws of the State of Montana, that the information provided in the document is correct. Although simple, this is an important part of completing the application process and it is in the applicant’s best interest to ensure that all of the information provided is correct to the best of their knowledge. For this reason, we do recommend contacting an attorney experienced with Montana water law to ensure that you’ve provided the most accurate and legally relevant information.
Step 2: DNRC Review for Correctness and Completeness.
After submitting Form 600 SW to the DNRC, the DNRC will begin its review process of your application. The goal of this step is to receive a “Correct & Complete” determination by the DNRC’s compliance officer. These determinations are made within 180 days of the DNRC’s receipt of the application. At times, this will also require a field inspection by DNRC staff. During this period, the application may be amended at any time. If the DNRC notices any deficiencies in your application material, they will notify you and provide 120 days to make appropriate changes and provide any additional information. In the event that the applicant determines that they will be unable to meet the 120-day deadline, they may withdraw their application at any time, but will forfeit their initial filing fees.
Upon determination that the application is Correct and Complete, the DNRC will notify the applicant and provide the applicant 15 days to request a meeting with the department if necessary. In addition, the DNRC will complete their required MEPA review and documentation at this time.
Step 3: Obtain Preliminary Determination & Meet with DNRC If Necessary.
After determining that the applicant has provided sufficient information to meet the application criteria, the DNRC will prepare a draft Preliminary Determination to either grant, deny, or grant with modifications. The DNRC will then provide this draft opinion to the applicant and again allow 15 days to request a meeting to discuss the department’s findings. If the applicant requests, the DNRC may then schedule a hearing to review the inadequate criteria. In the event that the final decision is still to deny the application, the applicant may appeal the decision to the District Court. Upon review, the District Court may reverse the DNRC’s decision. In this case, the DNRC is also afforded the opportunity to appeal Final Orders to the District Court within the 30-day appeal deadline.
Step 4: Public Notice & Objection Period.
If the DNRC grants the application or grants with modifications, the applicant then moves to a public notice period in which the DNRC provides notice generally and also to surrounding landowners that the application has been received and granted. The public has 45 days to object. In the event no objections are received, the DNRC will issue a Final Order adopting the Preliminary Determination and issue a permit to the applicant pursuant to the information provided in that Preliminary Determination.
When an objection is received, the DNRC will determine whether the objections are valid and, if so, will schedule a hearing within 90 days of the objection deadline. After the hearing and the record is closed, a Final Order must be issued within 90 days. In the even that objections are withdrawn, the hearing will be dismissed and a Final Order issued. If not, a Hearing Examiner will prepare a Final Order to grant with or without stipulations and may include a private agreement. After DNRC review, a Final Order granting the application will be issued.
Of course, the process for filing any new Montana water right is complicated with many opportunities to go south. Therefore, it is always recommended to consult with an experienced water law attorney before beginning the process. Contact our office for a free consultation with one of our experienced water law attorneys.
For information on the history of Montana Water Law, check out this blog post.
For information on filing Form 600: Groundwater Application for Beneficial Use Permit, click here.
For information on filing Form 602: Notice of Completion of Groundwater Development, click here.
