Op-Ed: Montana Stockgrowers Should Protect Senior Water Rights
Senior Water Rights Coalition Calls on MSGA to Back Constitutional Water Protections Over Expanded Exempt Well Loopholes
[HELENA, Mont.] — June 6, 2026 — Lund Law attorney and Montana rancher Hertha Lund is calling on the Montana Stockgrowers Association (MSGA) to stand behind its stated support for senior water rights, not undermine it.
In an Op-Ed published by the Northern Ag Network, Lund argues that MSGA’s push to expand the exempt well exemption contradicts the organization’s own position. She warns that a broader exemption would allow water use well beyond what is currently legal, putting the rights of Montana farmers, ranchers, and property owners at risk.
Exempt Wells: A System Being Stretched Beyond Its Intent
Exempt wells were originally meant for small uses in remote areas, such as stock water for livestock or single-family homes. However, that has changed over time.
Over the past 30 years, developers have begun using the exemption to supply large subdivisions with water for both homes and irrigation, skipping the permitting process required by Montana’s Constitution.
Montana’s Constitution mandates that the Department of Natural Resources and Conservation (DNRC) verify that new water use will not adversely affect senior rights holders before issuing a permit. In 2003, the Trout Unlimited case confirmed that surface water and groundwater are connected. Since then, developers have used exempt well statutes to get around this requirement altogether.
A Loophole That Puts Senior Water Rights at Risk
In Lund’s words, exempt wells have become a ‘rogue right.’ They exist outside the rules that every other water user in Montana must follow.
Those rules are built on one basic idea: first-come, first-served. The longer you have held a water right, the stronger your claim. Senior rights holders earned that protection by being there first.
Because exempt wells sit outside the enforcement system, senior rights holders have no legal or practical way to act against them. That puts many Montana farmers, ranchers, and water users in a frustrating position. They have spent tens to hundreds of thousands of dollars and countless hours in adjudication to protect their water rights, only to see those rights threatened by the growing number of exempt wells, with no due process available to stop it.
Additionally, exempt well certificates are issued without notifying potentially affected water rights holders, denying them any opportunity to object. This lack of proper notification violates the due process rights of senior water rights holders and provides another basis for the legal challenges currently before the courts.
What the Senior Water Rights Coalition is Proposing
The Senior Water Rights Coalition proposes that, rather than expanding loopholes, lawmakers create a simpler permitting process for small water uses, like stock wells, in areas where water is available and would not affect existing senior rights holders.
Lund argues that if a proposed new well truly qualifies as a small use, permitting should not be burdensome. The solution, she contends, is to fix a failing permitting process, not to create broader loopholes that expose senior rights holders to continued property rights violations without due process or compensation.
A Call for Unity and Constitutional Accountability
In her closing appeal to MSGA and other agricultural stakeholders, Lund writes: “Now is the time to stop infighting between agricultural organizations and to uphold Montana’s constitutional property protections for senior water rights. Together, we can work to pass legislation that fixes the real problem: the permitting process.
Lund expressed hope that MSGA would join the Senior Water Rights Coalition and other stakeholders in pursuing legislation that allows continued water development in Montana while respecting the rights of those who came first.
About Lund Law
Lund Law is a Montana-based law firm dedicated to protecting the property rights of landowners and rural communities. The firm’s attorneys are licensed to practice in Montana district courts, the Montana Supreme Court, the Montana Water Court, and multiple federal courts, including the U.S. Supreme Court. For over a decade, Lund Law has been a trusted advocate for property owners across Montana, handling all kinds of property and water rights disputes. Learn more at www.lund-law.com.
Source: Billings Gazette