Heavirland v. State, 311 P.3d 813 (Mont. 2013) (holding (i) Montana case law applies retroactively in determining sufficiency of evidence rebutting the presumption of abandonment of water rights founded on a prolonged time of nonuse, and (ii) claimants provided sufficient evidence to defeat the presumption of abandonment and excuse twenty-four years of nonuse of irrigation rights).
Frank Truchot filed and perfected the subject water right in 1904. The right granted Truchot water from Muddy Creek for irrigation. Christina and Henry Weist purchased the water right in 1913. Their son, Ray Weist, took over the farm and continued to utilize the water right for flood irrigation, when available, from the mid-1940’s until 1961. Utilization of the right was particularly difficult because of the slope and heavy clay soil of the Weists’ fields. Ray stopped irrigating in 1962. His son, Lyle, stated that his father’s age and the inefficiency of flood irrigation were the reasons Ray stopped irrigating. Lyle also testified that, in the event that they used pivot irrigation in the future, Ray had three-phase power connected to the farm.
Lyle returned to and purchased the family farm in 1975. After researching the farm’s water rights history, in 1981 Lyle and his wife, Linda, filed a statement of claim in the Montana general stream adjudication. Lyle installed a fourteen-tower Valley Center Pivot and resumed irrigation in 1981–82. He continued to use the pivot until 1991, when he sold the water right and property to Loren and Sue Heavirland. The Heavirlands thereafter irrigated every year but one when water was unavailable.
Lyle and Linda Weist’s claim was in the Temporary Preliminary Decree for Basin 41O with attached Department of Natural Resources and Conservation (“DNRC”) issue remarks. The remarks noted that the 1962 Teton County Water Resource Survey and the 1978 USDA Aerial Photography indicated zero acres irrigated at the farm. Meetings between DNRC and the Weists did not resolve the issue remarks. DNRC Water Resource Specialist Kraig Van Voast (“water master”) reviewed the documentation and found that he did not have information that could resolve the lack of proof of irrigation from Muddy Creek. The water master therefore joined the State of Montana to the adjudication, pursuant to Mont. Code Ann. § 85-2-248(7) (2013). The State moved for partial summary judgment regarding the issue of abandonment, and the water master granted the motion. The water master found that the period of nonuse from 1962 to 1982 raised a rebuttable presumption of abandonment; this finding moved the burden of proof to Lyle Weist and the Heavirlands (“claimants”) to rebut the presumption.
At an evidentiary hearing, the water master found that the claimants had abandoned the water right, stating that the claimants’ evidence did not overcome the burden to rebut the presumption of intent to abandon the water right. Claimants then filed an objection with the Chief Judge of the Montana Water Court (“water court”). Claimants presented two central arguments: (i) the law as it stood in 1973 applied to the abandonment of then-existing water rights, meaning the water master erred in retroactively applying 79 Ranch, Inc. v. Pitsch, 666 P.2d 215 (Mont. 1983), to their existing water right; and (ii) even if 79 Ranch applied, the claimants offered evidence sufficient to rebut the presumption and excuse the twenty years of nonuse.
The water court first held that 79 Ranch applied to the case at hand. 79 Ranch states that a long period of nonuse creates a presumption of intent to abandon a water right and causes the burden of explaining the nonuse to shift to the claimant. 79 Ranch also requires that a claimant present concrete facts or conditions, not just wants and wishes to utilize the right, to rebut the presumption of abandonment. The water court then applied 79 Ranch and concluded that the water master erred in not finding that the evidence was sufficient to rebut the presumption of intent to abandon. The State appealed to the Montana Supreme Court (“Court”).
The first question the Court examined was whether the water court correctly found that 79 Ranch applied to the abandonment of a water right that predated that case. The Court noted that the 1973 Montana Constitution, as well as the Water Use Act, protects “existing rights.” But the Court went on to hold that 79 Ranch did not run counter to the state constitution’s protection of those rights and did not change or create new law. Rather, 79 Ranch clarified the standard for abandonment, meaning its retroactive application did not offend the claimants’ rights or Montana law.
The second question the Court addressed was whether the water court properly held that the claimants presented adequate evidence to show that they did not intend to abandon their water right. The State argued that the evidence presented was insufficient because (i) the claimants did not offer adequate evidence to show that Ray stopped irrigating his property because of his age or health, and (ii) the connection of three-phase power to the property did not necessarily indicate intent to install a pivot irrigation system.
The Court held that the claimants’ presentation of the difficulty of flood irrigation on the property, coupled with Lyle’s testimony regarding his father’s age and health, were sufficient to overcome the presumption of abandonment. The Court stated that there was no reason to doubt Lyle’s statements about his father and the property. The Court also found that Ray’s installation of a pivot irrigation system was proof enough of his father’s belief that Lyle would want to use that type of system. The Court also stated that Lyle’s continued irrigation with the new system supported the notion that the Weists did not intend to abandon the water right. Weighing the evidence presented in its totality, the Court held that the water court correctly concluded that the water master erred in finding a lack of sufficient evidence to rebut the presumption of intent to abandon the water right.
The Court therefore affirmed the water court’s decision to apply 79 Ranch retroactively. The Court also affirmed the water court’s conclusion that the claimants presented evidence that was sufficient to justify the decades-long nonuse and therefore to rebut the presumption of abandonment.
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