Roland v. Davis

Roland v. Davis, 302 P.3d 91 (Mont. 2013) (holding evidence was insufficient to support a finding of an implied easement because the plaintiff water rights holders failed to prove apparent and continuous use of an unmaintained conveyance ditch that crossed the neighbor’s property).

In 1993 Gene and Melinda Roland (collectively the “Rolands”) purchased a fifty-acre parcel from Roger and Beverly Russ (collectively the “Russes”) in Ravalli County.  The warranty deed for the property did not contain explicit reference to water rights, ditch easements, or appurtenances.  However, the Rolands believed that a water right from Bunkhouse Creek came with the property. The Rolands also believed that a ditch easement existed, which transported the water from Bunkhouse Creek to the property.  Accordingly, the Rolands and the Russes filed a water right transfer certificate that accompanied the closing documents and transferred the water right appurtenant to the deeded land.

In 1994 Fred and Barbara Davis (collectively the “Davises”) also purchased a plot of property from the Russes.  At the time of the purchase, Fred Davis did not observe any ditches on the property, although the Smith Ditch, which leads from Bunkhouse Creek to the Roland’s property, historically crossed the Davis parcel.  In the mid-2000s the Davises participated in a United States Forest Service fire reduction program.  After the Davises cleared the land, remnants of an old ditch that crossed the property became visible.

In 1982 the Russes, before partitioning the land into two plots, filed a statement of claim for a water right on Bunkhouse Creek to irrigate thirty acres that would become a portion of the Roland parcel.  In 1994 the Montana Water Court (“water court”) issued a preliminary decree that included the Russes’ statement of claim.  Finally, in 2004, the water court reduced the irrigation right to twenty acres.

After the water court’s 2004 ruling, the Rolands attempted to reopen use of the Smith Ditch to grow trees as a cash crop, but the Davises did not agree that a ditch easement existed.  In 2009 the Rolands filed a complaint against the Davises in the Ravalli County District Court (“district court”).  The Rolands sought preliminary and permanent injunctive relief, declaratory judgment, and damages for the alleged ditch easement.  The Davises denied Roland’s allegations and filed a counterclaim to quiet title.

At trial, the parties’ experts analyzed a 1958 Ravalli County Water Resources Survey (“Water Survey”) that indicated the Smith Ditch navigating from Bunkhouse Creek across the Davis property to the Roland property.  A 1957 field note from the Water Survey also indicated irrigation of part of the Roland parcel using Bunkhouse Creek water conveyed through the Smith Ditch.  However, the district court, relying on historical United States Department of Agriculture aerial photographs, found that an access road constructed before 1979 severed the Smith Ditch as a means of conveyance to the Roland property.  The district court also found the Rolands’ predecessor in interest abandoned the Smith Ditch when he constructed the access road.  The district court therefore concluded that the Rolands did not have a ditch easement across the Davis property.  The Rolands then appealed the district court’s decision to the Montana Supreme Court (“Court”).

The Court considered two issues on appeal: (i) whether the Rolands’ purchase of the property included a ditch easement by operation of law; and (ii) whether the district court properly determined that the Rolands did not have an implied ditch easement that crossed the Davis property.

Regarding the first issue, the Court agreed with the Rolands that any water rights associated with the parcel automatically transferred to the Rolands upon purchase of the land.  However, the Court also stated that water rights and ditch easements represent separate and distinct property rights.  The court held that a person may own a water right without owning a ditch right.  Accordingly, the Rolands owned water rights to the parcel but did not necessarily receive a ditch easement to transport the water.

The Rolands next argued they received an implied easement when they purchased their parcel. The Court noted that to establish an implied ditch easement the Rolands needed to prove three elements: (i) separation of title; (ii) a use that was apparent and continuous at the time the property was divided; and (iii) reasonable necessity of the easement for the beneficial enjoyment of the land.  The Court held the Rolands met the first element because Russ retained ownership of both properties until the Rolands purchased the fifty-acre parcel in 1993.

Regarding the second element, the Davises argued that the Rolands’ predecessor in interest abandoned the ditch easement because the Russes never used Smith Ditch prior to selling the parcel.  In response, the Rolands argued that mere nonuse was insufficient to establish intent to abandon an easement.  The Court agreed with the Rolands but replied that the Rolands must do more than establish that his predecessor in interest did not abandon Smith Ditch.  In order to prove the existence of an implied easement, the Rolands needed to establish apparent and continuous use of the Smith Ditch at the time they purchased the property in 1993.

With respect to apparent use, the Rolands argued the Davises should have discovered the ditch through reasonable inspection.  First, the Rolands pointed to language in the Davises’ deed indicating they took the property “subject to” all apparent easements.  Additionally, after purchasing the land, Fred Davis admitted seeing remnants of a ditch once the snow melted on the property, but he also stated that water never flowed in the ditch.  The court held the Rolands failed to present evidence that the Russes took any steps to undo the impediments to the Smith Ditch.

With respect to the continuous use of the easement, the Court noted that the Smith Ditch was not used at least since 1979 because the Rolands’ predecessor in interest constructed the access road that halted the flow of Smith Ditch.  Next, the Rolands did not produce evidence that any predecessor in interest attempted to correct the impediments on Smith Ditch before the Russes sold the properties.  The Court therefore held the Rolands failed to establish continuous use of the Smith Ditch easement at the time they purchased the property.  Because the Court held the Rolands did not prove apparent and continuous use, it determined that the Rolands did not acquire an implied ditch easement across the Davises’ property, eliminating the need to proceed to the final element of the implied easement test.  The Court also did not have to determine if the district court properly held that the easement was abandoned because the Rolands failed to establish that they received an implied easement in the first place.

Accordingly, the court affirmed the district court’s holding that the Rolands did not have an implied ditch easement that crossed the Davis property.

On August 29, 2013, the University of Denver Sturm College of Law was honored to welcome Associate Professor Alex Gardner of the University of Western Australia (“UWA”).  Professor Gardner began his legal career as a solicitor in Melbourne, Australia, before receiving his Master of Laws in natural resources law at the University of British Columbia.  Professor Gardner has been on the UWA Faculty of Law since 1988, working with numerous research centers including the UWA Centre for Mining, Energy and Natural Resources Law; the National Center for Groundwater Research and Training; and the Cooperative Research Center for Water Sensitive Cities.  Professor Gardner also holds an Adjunct Professorship at the Australian National University College of Law.

Following a warm welcome, Professor Gardner introduced his presentation, entitled Climate Change and Water Resources Law: A Looming Adaptation Crisis.  He began with a brief overview of the impacts of climate change on southwest Australia, specifically within state of Western Australia, and the correlated decline in precipitation and rise in temperatures.  These impacts will have serious ramifications for management of water resources in the state and adaptation will be necessary in order to secure enough water for both human consumption and environmental preservation.  According to Professor Gardner, an important part of that adaptation for Western Australia will ineludibly require reformation of its water law, especially the right to take and use water.

Professor Gardner then gave a brief overview of the foundations of Australian water law.  Australia is a federation of six states whose constitution is a marriage of English parliamentary democracy and American federal democracy.  The Australian Constitution distributes legislative power and sovereignty over natural resources between the states and the Commonwealth Parliament.  The Commonwealth Parliament, like the United States Congress, has a specified list of legislative powers.  Importantly, those powers do not include the power to legislate with respect to natural resources, while the states retain the residual power to make laws regarding natural resources and water.  The Australian Constitution also gives the states sovereignty over natural resources, granting them the power to regulate water use.

Professor Gardner explained that current Australian water laws are based on a mixture of the English common law riparian tradition and more modern licensing traditions emanating from state statutes.  Under this system, landowners have the right to take and use water for domestic purposes, including livestock watering, while water for commercial purposes requires procurement of a state license.  According to Professor Gardner, the general goal of water management laws in Australia is ecologically sustainable development.  This translates to a heavy emphasis on setting aside sufficient water to maintain the environment before determining the amount available for consumptive use.

Professor Gardner next described the current scientific understanding of climate change impacts on southwest Western Australia.  Specifically, a recent report by the Australian Climate Commission shows that declining rainfall and increasing average temperatures are beginning to have serious negative impacts on agriculture and urban water supplies in southwest Australia.  Even during the recent La Nina event, which saw much of the country inundated with heavy rainfall, the southwest remained dry.  Likewise, recent projections for annual rainfall over the next twenty years almost unanimously predict continued drying in southwestern Australia.  Furthermore, Professor Gardner pointed out that recent studies by the Indian Ocean Climate Initiative all but confirm that rainfall reductions in southwestern Australia are consistent with human-induced climate change.

Professor Gardner then described the water infrastructure and water needs of the southwest.  Southwest Western Australia has a rapidly growing population of roughly two million with an economy historically rooted in agriculture and mining.  Traditionally, the southwest relied on surface water but is now heavily reliant on groundwater in order to compensate for declining precipitation.  Total water consumption in the southwest increased steadily during the last decades of the 20th century.  However, Professor Gardner highlighted the fact that recent data show stabilization of total consumption in the region, population increase notwithstanding.  This trend reflects the growing recognition of water scarcity and the success of reductions in per-capita consumption.  In spite of this, per-capita consumption remains relatively high by both Australian and international standards.  In fact, without further adaptation, growing demand coupled with shrinking supply due to climate change will produce a water shortage of 365 gigaliters by 2060.

Professor Gardner then focused specifically on the effects of climate change on the water supply serving Perth, Western Australia’s largest city.  Traditionally, Perth relied primarily on surface water, especially for its public water supply.  As surface water supplies began to dry up in the late 1970s, Perth began to increase its reliance on groundwater resources, finally resorting to desalination in the early 2000s.  However, according to Professor Gardner, even with increased reliance on desalination, these combined sources are proving insufficient in the face of a rapidly drying climate.  Other sources will be needed in the future to meet the water demands of a rapidly growing population.

Professor Gardner, with input solicited from the audience, then proffered several possible supplementary supplies that Perth can possibly look to in the future.  For example, Professor Gardner suggested wastewater recycling, increased conservation, and inter-basin transfers.  However, due to various obstacles to these supplies, including ecological concerns and political opposition, Professor Gardner identified “managed aquifer recharge” as one of the more promising avenues.

Professor Gardner next discussed each of Perth’s current main water supplies, beginning with the Perth Hills Dams, the major source of surface water for the city.  Distressingly, over the past century, average runoff into these damns has fallen by more than 50% to an all-time low of thirteen gigaliters in 2010, representing a paltry 3% of the historic average.

Groundwater is another major water source for Perth.  Originally seen as a backup to the Perth Hills Dams, the use of the major aquifers underlying Perth, called the Gnangara Groundwater System, has steadily increased over the past decade.  Now the Gnangara supplies roughly 60% of Perth’s water supply.  Increased pumping has led to a steady drop in the level of the aquifer to such a degree that the upper, or superficial, aquifer is now at its lowest level on record.  This drop, in turn, has led to increased drilling into the lower aquifers of the system, the Leederville and Yarragadee aquifers.   Though these lower aquifers contain relatively large amounts of water, increased use of the Leederville and Yarragadee has in fact precipitated the drop in the level of the superficial aquifer due to the hydrologic connection between the superficial and the Leederville and Yarragadee aquifers.

Professor Gardner highlighted Perth’s current groundwater over exploitation with a newspaper article featuring Loch McNess, a lake in Perth’s northern suburbs.  As a boy growing up in Perth, Professor Gardner remembered rowing boats on Loch McNess with his family, an activity that would be impossible now that the lake is essentially dry.  Making the situation worse, Professor Gardner explained how the state water utility has consistently failed to abide by the legal limits on groundwater drawdown already in place.  Unfortunately, it is difficult to tell whether climate change or overuse is the primary factor leading to such low aquifer levels.  Further complicating matters are the large number of other, non-municipal water rights holders, including agricultural and industrial users as well as a significant number of unlicensed users.

In the face of these issues, Perth has increasingly turned to desalination.  Though approximately half of the city’s water now comes from desalination, Professor Gardner predicted that the climate is drying faster than the city can build desalination capabilities, thus requiring increased reliance on other sources such as wastewater recycling.

Professor Gardner then discussed the current state of Western Australia’s water law.  The current licensing scheme in Western Australia includes a landholder eligibility requirement, a fixed term generally ten years in length, and the right to renew the license after the term has expired.  Each license specifies the land upon which the water can be used and the annual maximum water use on that land.  However, the licensed maximum water use is subject to scarcity reductions at the direction of the state water minister.  Though there are limits in place to protect the environment, Professor Gardner explains that limited metering and poor enforcement have severely reduced their efficacy.

Though climate change has hit Western Australia particularly hard, the other states of the Commonwealth have also experienced similar problems.  To deal with these problems, the Commonwealth developed a national water policy.  As Professor Gardner explained, the key principles of the national water policy include transitioning to transferable water rights without landholder requirements, improving metering and reporting, national oversight of states’ water markets, proportional sharing of scarcity, and a comprehensive water planning system.  Western Australia has recently accepted the national water policy, despite initial resistance, and is moving toward implementation of a water property rights regime based on a system of proportional sharing among licensees during water scarcity.

In closing, Professor Gardner compared the changing nature of Australian water law with Colorado water law.  Western Australia is moving towards a property rights regime much like that in Colorado.  However, unlike in Colorado, the new Australian scheme will incorporate a system of central planning that will first provide adequate water for environmental flows.  Another major difference between the Colorado system and the emerging Western Australian system is the formula for sharing scarcity.  Instead of a hierarchy founded on historical priority as used in Colorado, the new system in Western Australia will require proportional sharing of scarcity.


The title picture is a photo of Perth, Western Australia.

The heavy rainfall and flooding that occurred in the second week of September brought devastation to many families, homes, and businesses in Colorado.  With 374 families remaining in temporary housing, recovery from the storms has been a slow process for those acutely affected.  After the rain subsided and the flood levels receded, another concern emerged for Coloradans: damage to oil and gas operations in the floodway.

The Colorado Oil and Gas Conservation Commission (“COGCC”), a state agency in the Colorado Department of Natural Resources, is responsible for the regulation of oil and gas development in the state.  During the extensive rainfall and following the destructive flooding, the COGCC worked with the Federal Emergency Management Agency (“FEMA”), the Colorado emergency response operations, the United States Environmental Protection Agency (“EPA”), and other organizations to oversee the response to spills and oil and gas operations damaged in the flood.

Alan Gilbert, an attorney with decades of experience in energy and environmental law, was appointed Special Assistant to the Executive Director for Flood Response to monitor the inspection and cleanup of oil and gas operations.  On Friday, November 8, Mr. Gilbert gave a presentation to the Natural Resources Section of the Colorado Bar Association to outline the COGCC’s ongoing response to the flood damage.

Mr. Gilbert noted that Colorado has many wells that operate within floodplains of the St. Vrain and Platte Rivers in central and northeast Colorado.  Often, these well sites were chosen to keep drilling operations off of valuable agricultural land.  During the first few days of heavy rain, when it became clear that massive flooding was imminent, oil and gas companies with wells in the floodplains preemptively started to shut-in wells.  Mr. Gilbert explained that when a well is shut-in, valves are closed to stop production, which creates a seal between the well bore and the land surface.  This process contains any oil or gas underground if surface operations are damaged.  Fortunately, a majority of wells today can be shut-in remotely, but some still require employees to manually shut-in the well at the well site.  In total, oil companies shut-in 2,603 wells during the flooding.  Today, 691 of the wells remain shut-in, awaiting inspection or repairs before resuming operations.  However, with these wells closed and not in production, leaseholders, including many families that depend on the income, will not receive any royalty payments.

Fortunately, Mr. Gilbert explained, the shut-in wells withstood the flooding with almost no damage or leaks reported to the well structures themselves.  However, many storage tanks, soil and metal berms around wells, and pipelines sustained damage from water flow or debris carried by the water.  As many media pictures reported, the flooding toppled some tanks; unanchored pipelines and caused leaks; lifted some underground tanks to the surface; and caused oil, condensate, and produced water to escape in certain areas.  While the rain continued to fall, the COGCC began discussing how to address the problems.  The COGCC, with EPA assistance, took aerial surveys of affected areas and began traveling to the areas to inspect damaged wells.  The COGCC brought in and trained many additional teams of inspectors to handle the increased workload.

The COGCC, through inspections and operator reports, immediately began to compile and assess spill data.  As of November 8, the COGCC reported total spills of 1,149 barrels (48,250 gallons) of oil and condensate and 1,035 barrels (43,479 gallons) of produced water originating from storage tanks and leaking pipelines.  These totals came from forty-nine total spills, fourteen of which were in excess of twenty barrels.  Twenty spills only comprised produced water, and the single largest spill amounted to 323 barrels.  Mr. Gilbert reported that there was no single catastrophic spill and no significant buildup of spilled material in any area.

A major concern of Coloradans revolved around the effects of flooding on hydraulic fracturing (“fracking”).  However, the COGCC reported that no fracking operations were active in the floodplains during the flooding, and thus no fracking fluid spillage.  Mr. Gilbert explained that fracking is not a continuous operation in oil and gas production and only takes place during limited times at each well site.  While the initial staging of two fracking operations started at the beginning of the rainfall, operators moved both of them safely out of the affected areas before significant flooding occurred.  Although many media outlets speculated about discovering fracking disasters when the water receded, these fears were unnecessary as all fracking had terminated prior to the flooding.

Since the floodwaters have receded, the COGCC has taken many steps to respond to the damage, including assisting operators to inspect and repair damaged equipment, cleaning up any spilled toxic substances, and continuing evaluations of damage and response efforts.  The professional, technically trained staff of the COGCC has researched and written many reports to assist the industry in safely cleaning up, repairing, and returning affected oil and gas operations to normal production.  These reports include start-up procedures for undamaged shut-in wells, worker health and safety information for workers exposed to floodwaters containing E. coli and other hazards, recommended practices for flood impact zone reconstruction, and a notice to operators of new reporting requirements  for wells in flood impact zones.  Finally, the COGCC has requested a formal report from the oil and gas industry outlining all spills and damage.  In addition, an interim committee has been formed in the Colorado General Assembly to provide further oversight of the cleanup operations.

Mr. Gilbert reported that the COGCC has learned many lessons from the flooding that will better prepare them for future floods.  First, while both soil and metal berms should be built around wells to contain any material in case of a spill, the flooding and debris from this flood demonstrated that the metal berms stood up to the damage much better than soil.  Second, the anchoring systems for tanks and pipelines need better design and construction to keep tanks in place during violent weather.  Third, wells with remote shut-in capabilities are very beneficial to control wells inaccessible due to dangerous weather.  The COGCC is planning to hold future workshops to discuss COGCC action in response to these lessons.

In summary, no form of energy production is without risk, and it is important that oil and gas operations in Colorado are well prepared to prevent spills, even in the face of the most violent natural disasters.  While all spills of toxic materials are significant and serious, the quick action by the oil and gas industry and immediate response to the flooding by the COGCC kept Colorado lands free from any major threat to the environment or public health.


Additional Resources

The COGCC has documented and published all reports about the flooding and response on their website at The website includes the COGCC map showing wells in the flood impact zone; COGCC start-up procedures for undamaged shut-in wells; COGCC health and safety information for workers exposed to floodwaters containing E. coli and other hazards; and COGCC recommended practices for flood impact zone well reconstruction.


If you hope to get a good look at the world’s largest man-made lake, the observation deck of the seventy meter lotus-shaped monument to Russian and Egyptian friendship is hard to beat. Situated near the west end of Egypt’s Aswan High Dam, the monument gives commanding views of Lake Nasser’s vast expanse to the south and of the subdued Nile’s meandering course to the north.  The monument’s construction finished in 1971 to mark the completion of one of modern Egypt’s most essential pieces of infrastructure. At its peak, the dam produced over half of Egypt’s electricity, but today the massive 3.6 kilometer dam accounts for roughly 15% of the country’s electrical capacity.

More important than the electricity provided by the Aswan Dam, however, is the claim to the Nile itself that the dam represents. In 1959, the newly independent nations of Egypt and Sudan signed The Agreement for the Full Utilization of the Nile Waters (the “Agreement”). Estimating the Nile’s annual flow at roughly 84 billion cubic meters, Egypt and Sudan agreed to split their use of the water based on existing needs at the time, with 55.5 billion cubic meters going to Egypt, 18.5 billion cubic meters to Sudan, and the remaining 10 billion cubic meters as the estimated loss due to evaporation and other factors. The Agreement has been the basis for all negotiations regarding the use of the Nile’s waters ever since. At the time of the Agreement, the other eight countries that happen to be upstream (now nine, counting South Sudan) had comparatively little political, economic, or military clout compared to both Sudan and Egypt. The persistence of these disparities managed to forestall any serious objections to the Agreement by the upstream countries for several decades, but the construction of the Grand Ethiopian Renaissance Dam (“GERD”) promises to upset the status quo.

Thirst for Change

Nearly 1,400 miles southeast of Aswan, Egypt, lies the Ethiopian city of Bahir Dar, situated at the source of the Blue Nile, Lake Tana (as opposed to the White Nile, which heads north out of Lake Victoria from its source in Uganda). Unlike Aswan, Bahir Dar is not exactly a tourist hotspot. There are no hotels emblazoned with English advertisements or aesthetically pleasing but commercially impractical vessels plying Tana’s coastline. The unlit streets are unpaved and, after dark, well worth avoiding. The typical traveler to this region is more likely to recall unsettling images of extreme poverty than stunning sunset vistas from the deck of a drifting felucca. With a per capita income of less than $1,200 a year, this is perhaps unsurprising.

The Ethiopian government, however, is hoping to change all that. In April 2011, construction of the GERD began in the Benishangul-Gomuz region of Ethiopia, about twenty-five miles from the Sudanese border. The GERD could produce as much as 6,000 megawatts of electrical capacity, effectively quintupling Ethiopia’s current capacity. It could create a sixty-three million cubic meter reservoir as well, which may do wonders for Ethiopian agriculture. For a country in such desperate need of infrastructure, the GERD may be the answer to many of the country’s problems all at once.

Egyptian Misgivings

Ethiopia’s downstream neighbors are not exactly thrilled at the economic benefits the GERD promises to deliver to Ethiopia or the potential shift in the regional balance of power. In fact, far from thrilled. South Sudan may very well see some tangible benefits from the GERD, including access to relatively cheap electricity and options to access the reservoir for agricultural projects. Nonetheless, an increase in Ethiopian demand for the Blue Nile’s water will inevitably mean less accessible water for downstream Sudan. And as for Egypt, well, they perhaps rightly perceive nothing but loss in this.

For starters, the Blue Nile provides nearly 60% of the water that eventually flows into Egypt after converging with the White Nile in Khartoum.  So much diverted water upstream means that Lake Nasser will inevitably see a decline in its reserves.  Egyptian engineers estimate that completion of the GERD could result in Sudan and Egypt  losing access to eighteen billion cubic meters of water annually and the Aswan High Dam’s electrical production diminishing by up to 30%.

For a country already racked by political instability and struggling for some sense of clear leadership, the problems presented to Egypt by the GERD cannot be overstated. For most in Egypt, the problem is clearly understood; what to do about it is not. In June of this year, an Egyptian television station mistakenly broadcasted a live feed of some Egyptian lawmakers discussing plans to support rebel factions within Ethiopia that might undermine construction of the GERD. Some lawmakers at the meeting even suggested an attack by the Egyptian air force on the GERD as a last resort. Egyptian leadership at the time quickly pointed out that these individuals did not hold positions of power and that their discussion should not be taken seriously. Nonetheless, the gravity of Egypt’s situation was clearly highlighted by the lawmakers’ frank appraisals. Even on the record, hostility to the GERD among Egyptian legislators is readily apparent. Some have referred to the construction as “tantamount to a declaration of war” and even recently-ousted President Mohammed Morsi warned that “all options are available” in regards to settling the dispute.

Moving Forward

For Ethiopians, the GERD provokes a very different response. For those living in Ethiopia, and for a substantial portion of the Ethiopian diaspora abroad, the GERD represents a great leap forward. Progress in not only economical terms but in both social and political spheres as well. While the majority of funding for the massive project has come as loans from China, the Ethiopian government has also begun issuing bonds to finance the project. Ethiopian embassies around the world are eager to provide advice on how to purchase these bonds, and some reports suggest that sales are fairly popular among expatriates.

Short of an Egyptian military strike, the project appears destined for inauguration in 2017, and with it a number of serious adjustments for the region. Perhaps first amongst these adjustments will likely include a strengthened bargaining position for the historically marginalized countries that hope to take a more commanding role in shaping regional affairs. In June of this year, Ethiopia, Uganda, Rwanda, Tanzania, Kenya, and Burundi signed what is commonly known as the Entebbe Agreement, which reassigns water rights for the entire Nile Basin. Neither Egypt nor Sudan participated in shaping this agreement.

These two downstream nations’ reluctance to enter into negotiations that would almost inevitably reduce the benefits afforded by their historical preeminence is not surprising. Nonetheless, an unwillingness to work cooperatively in crafting new agreements may result in an unfortunate misstep. Traditionally, Egypt has been the most powerful country in the region.  However, instability on the home front, coupled with recent soaring population growth in all of East Africa, will likely result in a challenges to Egypt’s dominance. As problems implicating the entire region arise, as they certainly will, a foundation of mutual trust and cooperative interdependence would be an enormous asset. The future stability of the region may depend on its countries’ leaders’ success in shaping meaningful diplomatic solutions to shared problems.

For now, Egypt remains the dominant economic and political power in northeastern Africa. Whether the construction of the GERD upends the regional power balance remains to be seen. In any case, if construction keeps pace with its 2017 completion target date, Ethiopia may soon provide its owns prominent vantage point of the harnessed Nile. For the first time, electricity may flicker its way from the Sahel to the Semiens, lighting the way for businesses and tourists alike. And over a thousand kilometers downstream from this new glow, a giant lotus-shaped monument may soon commemorate just how far Lake Nasser used to reach.



Aaron T. Rose, Ministers to meet over impact of Grand Ethiopian Renaissance Dam, Daily News Egypt (Oct. 21, 2013),

A Dam Nuisance: Egypt and Ethiopia Quarrel Over Water, The Economist (Apr. 20, 2011), available at

Egyptian politicians caught plotting how to attack Grand Ethiopian Renaissance Dam, Tigrai Online (June 04, 2013),

Ethiopia Data, The World Bank, (last visited Nov. 11, 2013).

Kirubel Tadesse, Ethiopia Ratifies Nile River Agreement Opposed by Egypt, The Huffington Post (June 13, 2013),

Lowell N. Lewis, Egypt’s Future Depends on Agriculture and Wisdom: The Nile River, (last visited Nov. 11, 2013).

Peter Schwartzstein, Water Wars: Egyptians Condemn Ethiopia’s Nile Dam Project, National Geographic (Sep. 27, 2013), available at /130927-grand-ethiopian-renaissance-dam-egypt-water-wars/.


The title picture is of local boats on the Nile just south of the Aswan High Dam in Egypt, taken by the author during his journeys throughout the region. 

W. Mont. Water Users Ass’n v. Mission Irrigation Dist., 299 P.3d 346 (Mont. 2013) (holding (i) the district court improperly issued a writ of mandate and injunction pertaining to a water use agreement on an issue not raised by the parties, and (ii) irrigation districts did not, under state law, need to seek member and judicial approval of a water use agreement to settle the rights of water users on Indian reservation lands).

The Hellgate Treaty of 1855, signed by the United States and the Confederated Salish and Kootenai Tribes (“Tribes”), created the Flathead Indian Reservation in Montana.  In 1908, Congress directed the Secretary of the Interior to construct the Flathead Indian Irrigation Project (“FIIP”) to deliver irrigation water to irrigable lands on the Flathead Reservation.  Under the Hellgate Treaty, the Tribes claimed aboriginal water rights to FIIP irrigation water.  Landowners who comprise Western Montana Water Users Association (“Water Users”) also claimed rights to FIIP water for irrigation.  Through a Reserved Water Rights Compact Commission, the State of Montana, the Tribes, and the United States proposed a compact to settle the Tribes’ water rights claims. The Mission Irrigation District, Jocko Valley Irrigation District, Flathead Irrigation District, and Flathead Joint Board of Control (collectively “Irrigation Districts”) were not parties to the compact.  However, as an appendix to the compact the United States, the Tribes, and the Irrigation Districts proposed a water use agreement (the “Agreement”) that would settle the rights of irrigators to receive FIIP irrigation water on the reservation.

The Water Users brought this action against the Irrigation Districts seeking to require them to comply with Montana Code Annotated §§ 85-7-1956 and -1957 (2013) before entering into the Agreement with the Tribes and the United States.  If applicable, these sections would require the Irrigation Districts to submit the Agreement to a member vote and judicial review.

On December 14, 2012, the District Court for the Twentieth Judicial District (“district court”) issued an alternative writ of mandate requiring the Irrigation Districts either to comply with sections 1956 and 1957 or to submit a brief detailing why they need not comply.  The Irrigation Districts submitted a brief that argued those sections did not apply to the Agreement.  On February 14, 2013, the district court conducted a hearing to evaluate the applicability of sections 1956 and 1957 to the Agreement.  After considering the arguments of both parties, the district court found the Agreement was beyond the Irrigation Districts’ authority, rendering the question of the applicability of the statutes moot.  Accordingly, the district court issued a superseding writ of mandate and enjoined the Irrigation Districts from entering into the Agreement.  The Irrigation Districts appealed to the Supreme Court of Montana (“Court”).

The Court first determined whether the district court properly granted the writ of mandate and injunction.  The district court based that injunction solely on its determination that the Agreement exceeded the Irrigation Districts’ authority because it would give individual irrigators’ water rights to the Tribes without compensation.  However, at the time of the hearing, Montana, the Tribes, and the United States were still negotiating ownership of the FIIP water rights.  The Court held the district court’s determination that the Agreement exceeded the Irrigation Districts’ authority improper because it was unclear the Agreement would actually take away water rights given that none of the FIIP rights were yet determined.

The Court further noted that the Water Users based their complaint entirely on the applicability of sections 1956 and 1957, an issue the district court ultimately did not address.  Neither the Water Users nor the Irrigation Districts questioned the scope of the Irrigation Districts’ authority before the district court.  The Court noted that the district court therefore based its writ of mandate and injunction on an issue that none of the parties briefed or argued.  Further, the Court held that the district court’s injunction against the Irrigation Districts was improper because the Water Users never requested an injunction of the Agreement in their request for relief.  The Court accordingly vacated the district court’s writ of mandate and injunction, thereby restoring the district court’s alternative writ of mandate, which found the Irrigation Districts must comply with sections 1956 and 1957.

The Court next determined whether, as the alternative writ found, sections 1956 and 1957 imposed a clear legal duty on the Irrigation Districts to seek member approval and judicial review of the Agreement.  Using the plain language of the entire statute, the Court examined sections 1956 and 1957 to determine their applicability to the A agreement.

The Water Users argued the entire statute’s provisions applied to contracts with the United States for loans of money, construction work, or repair work, and that the statutes applied to the Agreement based on the latter two qualifications.  The Irrigation Districts contended that the statute was not applicable to the Agreement because, by reading the statute as a whole, those two provisions only regulated contracts involving a loan of money.

After examining each section of the statute, the Court held that sections 85-7-1951 to 1958, passed later than the rest of the statute, applied only to contracts that involve a loan of money.  Although other provisions in the broader statute, specifically section 85-7-1906, authorized the Irrigation Districts to enter into any type of contract with the United States, the Court found that section 85-7-1958 provided that sections 85-7-1951 to 1958 should not limit the Irrigation Districts’ authority to enter into agreements with the United States under other applicable statutes.  The Court emphasized that the Water Users’ broader interpretation of the statute would render section 1958 meaningless.

Although the parties disagreed as to statutory interpretation, they agreed that the Agreement did not involve a loan of money.  Accordingly, the Court held that sections 1956 and 1957 did not apply to the Agreement, meaning the Irrigation Districts did not need to seek member approval or judicial review.

Consequently, the Court dissolved the writ of mandate and injunction and reversed the alternative writ of mandate previously issued by the district court.