McElyea is new Montana water rights judge

By Emily Stifler, Explorebigsky.com Managing Editor

BOZEMAN – Russ McElyea has left his position as Moonlight Basin’s chief operating officer and on July 16 started work as associate judge of the Montana Water Court.

The 2011 Montana Legislature created the associate judge position to help the state’s chief water judge Bruce Loble in assessing water rights and resolving conflicts that the Department of Natural Resources and Conservation cannot.

The new job is “intellectually stimulating,” McElyea said. “It’s interesting approaching these issues for the first time as a judge instead of as an advocate.”

McElyea worked at the ski area for six years in total, first as the attorney, and then as COO and general counsel. Previously, he practiced water and real estate law in Bozeman and acted as a water rights advocate. He also sat on the board of the Bozeman Daily Chronicle but stepped down before accepting this position to avoid any conflict of interest.

While the court is based in Bozeman, McElyea said the job will likely entail travel all over Montana as cases arise.

Based on the doctrine of prior appropriation—“first in time, first in right”—Montana water rights are based on a mix of old and new, McElyea said, explaining that while many of the cases pertaining to water law are more than a century old, a lot of the statutes he works with are modern.

The history is what makes water law so interesting, McElyea says. “It’s kind of a blend of science and historic practices, culture, and changing public perceptions about how this resource should be allocated as time passes.”

Since the 1970s, the DNRC has been responsible for many of the programs associated with the uses, development and protection of the state’s water. The water rights court comes into play when the DNRC’s decisions are in question.

The rights are governed within individual watersheds, of which there are dozens around the state, and they apply to many industries including agriculture, mining, recreation and business.

“There’s such a relationship between water and money,” McElyea said. “There are also relationships between water and recreation, water and spirituality, and water and philosophy. Ultimately, we all need to drink it to stay alive.”

As Montana’s population grows, domestic water needs will grow alongside it. But, McElyea points out, because “there isn’t really any more water to be had, there will be an increased pressure to identify what water can be made available.” That, he says, isn’t unlike most of the Western U.S.

While he’s excited about the new position and admits its something he’s wanted to do for a long time, McElyea said he’ll miss Moonlight.

“There’s some really wonderful people on that team… I’ll always have strong feelings for the Moonlight area, itself. The landscape and the skiing and the beauty of that setting—once it gets into your bloodstream you can’t get rid of it.”