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The Duttons Needed a Permit

“On our land, it’s our river,” says Dan Jenkins, a land developer in the series Yellowstone. “This isn’t California, gentlemen. This is Montana. We can do whatever we want.”

Not so fast, Danno.

Though Hollywood insists on portraying Montana as a place where you can do whatever you want whenever you want, Montana waters are in fact highly regulated, and their use is subject to a host of laws based in our State Constitution. These water use laws and regulations were enacted because waterways in Montana are not private property – they belong to the people: not just property owners like the fictional Jenkins or Dutton families.

In this case, Mr. Jenkins may have wanted to pay particular attention to Article IX Section 3.3 which states that “All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.” Montana’s water belongs to the State and its citizens and if you’re lucky enough to have a legal “right” to use some of that water, you have them to thank.  It’s not your river, Dan. It’s ours.

As we continue our “Yellowstone” water journey, John Dutton – the infamous owner of the fabled Dutton Ranch – dynamites a canyon to move the river away from Dan Jenkin’s proposed development and save the ranch’s water. Kaboom! Problem Solved!

The need for drama in a  television series is understood, but can we err on the side of reality? Since the fictitious Dutton Ranch was established in 1883, we can assume that they hold very “senior” water rights. Montana operates under the Prior Appropriations Doctrine, so the oldest, most senior appropriations of water have priority over more junior water right holders.

You can almost hear John Dutton growl, “First in time, first in right, Mr. Jenkins.”

The Duttons didn’t need dynamite, they needed a decent water rights attorney. This would have made for a very different season of Yellowstone. Think Law and Order: Montana Water Rights. The Duttons also needed a permit.

Montana’s Natural Streambed and Land Preservation Act, commonly referred to as 310 Law, exists to protect and preserve our rivers and streams and the lands and property immediately adjacent to them in their natural state. Any work in, over, under, or along any stream in Montana requires a 310 permit PRIOR to beginning that work. Permits are administered by 58 local Conservation Districts across the State in cooperation with Montana Fish Wildlife and Parks.

Failure to obtain a 310 permit is a misdemeanor crime, subject to a civil penalty and a fine of up to $500 for each day of unauthorized activity. Additionally, you may be required to restore the damaged stream at your expense. In the Dutton’s case, to date, they would be looking at nearly $1 million in fines and $10’s if not $100’s of millions in restoration costs.

Montana’s streams and rivers are the true treasures of the Treasure State. Our citizens take great pride and responsibility in their well-being. If you see an activity that you think may be in violation of 310 Law, you can file a complaint with your local Conservation District, the form is available on their website or through their office. Please be sure you have an exact location for the disturbance before contacting the CD.

Together, we can protect Montana’s treasured rivers. As Dan Jenkins said, “Don’t look for water under the outhouse.” Nah, he didn’t. But wouldn’t that have been great? And Yellowstone would have gotten at least one water-related story line right.



Sharon Brodie is President of the Four Corners Foundation and Co-Founder of Gilly, a software platform designed to streamline the 310 and Joint Application Process.

Elizabeth Emeline is a Fish and Wildlife Management Ecologist. She works as a Natural Resource Specialist for the Gallatin Conservation District.

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