Teton Co-op Canal Co. v. Teton Coop Reservoir, 365 P.3d 442 (Mont. 2015) (holding: (i) the Water Court’s finding that Teton Canal’s predecessors in interest did not develop a certain diversion point was clearly erroneous because they developed the diversion point to build Glendora Canal; (ii) the Water Court’s finding that the Eureka Reservoir’s priority date related back to the 1890 Notice was incorrect because the 1890 Notice did not contemplate the Eureka Reservoir; and (iii) the Water Court, on remand, must determine Eureka Reservoir’s priority date).

In 1890, Teton Canal’s predecessors filed an appropriation notice (“1890 Notice”) for claims along the Teton River for irrigation purposes. Immediately following the 1890 Notice, Teton Canal’s predecessors constructed the Glendora Canal. In 1891, the predecessors filed another larger claim along the Teton River (“1891 Notice”). The 1891 Notice listed a diversion point two miles from the Glendora Canal’s diversion point. Both the 1890 and 1891 Notices described part of the purpose of appropriation as to create reservoirs.

In 1893, Teton Canal’s predecessors sold their interests to a company that later transferred those interests to Russell Shepherd. Shepherd subsequently became involved in a court case adjudicating water rights on the Teton River (“Perry case”). During the Perry case, Shepard transferred his rights to Teton Canal. In 1908, the Perry court issued a decree that effectively extinguished the claims made under the 1891 Notice. While Teton Canal demonstrated interest in developing a reservoir, it had not done so by 1926, the year when the United States General Land Office inspected the site. Teton Canal finally constructed the reservoir in 1937.

In 1982, Teton Canal submitted claims for six distinct water rights along the Teton River in order to comply with the requirements of the Montana Water Use Act of 1973. All six claims listed an identical priority date: April 18, 1890. The point of diversion, the Eureka Canal, was also the same for all six claims. Water distributors, Teton Coop Reservoir Co. (“Teton Reservoir”), Lower Teton Joint Objectors, and the Farmer’s Co-op Canal, all objected to Teton Co-op Canal’s claims to the Eureka Reservoir. Teton Canal settled with all of the objectors besides Teton Reservoir. After conducting evidentiary hearings, the Montana Water Court (“Water Court”) issued an order in favor of Teton Canal. The Water Court held that Teton Canal’s water rights claims related back to the 1890 Notice. Teton Reservoir appealed the judgment of the Water Court to the Supreme Court of Montana (“Court”).

On appeal, Teton Reservoir argued that the Water Court erred in determining that Teton Canal’s claims to the Eureka Reservoir related back to the 1890 Notice. The Court reviewed the Water Court’s findings of fact under the clearly erroneous standard and its conclusions of law for correctness.

The Court first examined whether Teton Canal’s predecessors intended to include the Eureka Reservoir in the 1890 Notice. Teton Reservoir argued that the Water Court erred in determining that Teton Canal’s predecessors did develop the diversion point described in the 1890 Notice. Teton Reservoir also asserted that the Water Court disregarded evidence clearly demonstrating that Teton Canal’s predecessors built the Glendora Canal, which corresponded with descriptions of the 1890 diversion point. The Court reviewed the evidence including maps and testimony from an engineer who had helped construct the Glendora Canal. The Court determined that the Teton Canal’s predecessors did develop the 1890 diversion point when they created the Glendora Canal. Thus, the Court held that the Water Court’s clearly erred in finding the predecessors had never developed the diversion point.

Teton Reservoir next argued that the 1890 Notice did not contemplate the Eureka Reservoir; rather, the 1891 Notice, which the court had since nullified, first asserted the Eureka Canal as a new diversion point. Conversely, Teton Canal argued that it consolidated its practices to include the Eureka Reservoir in the 1890 Notice. The Water Court found that the 1890 Notice contemplated multiple reservoirs including the Eureka Reservoir. On appeal, the Court assessed whether Teton Canal’s claims could relate back to the 1890 Notice. The Court reviewed the evidence and agreed with Teton Reservoir. The Court found that Teton Canal’s predecessors intended the Glendora Reservoir to be part of the 1890 Notice, but intended the Eureka Reservoir to be a part of the nullified 1891 Notice. The Court held the Water Court misinterpreted the nullified 1891 Notice and, therefore, the Water Court was incorrect in finding that Eureka Reservoir had a priority date of 1890.

The Court then addressed Teton Canal’s argument that the Eureka Reservoir is a part of the 1890 Notice because the diversion point “simply moved” to a point upstream following the nullification of the 1891 Notice. The Court noted that the law required “reasonable diligence” on the part of Teton Canal and its predecessors to develop the Eureka Reservoir. In analyzing the reasonable diligence prong, the Court examined evidence of the course of conduct of Teton Canal following the Perry court decree. Because Teton Canal took forty-five years to build the Eureka Reservoir, the Court concluded that Teton Canal failed to proceed with reasonable diligence in developing the Eureka Reservoir site. Therefore, the claims could not relate back to the 1890 Notice, and the Water Court erred in concluding that Teton Canal “aggressively pursued” the development of the reservoir.

Finally, the Court considered what priority date it should assign to the Eureka Reservoir. Teton Reservoir asserted the year should be 1936, the year when construction on the reservoir began. Because Teton Canal did not provide an alternate date, the Court remanded this question to the Water Court.

Accordingly, the Court reversed the order of the Water Court and remanded the case for proceedings consistent with this opinion.

Brian Hinkle

Image: Eureka Reservoir, Montana.  Flickr user Sam Beebe, Creative Commons.