H.B. 360, 65th Leg., Reg. Sess. (Mont. 2017) (establishing: (i) a surface water assessment and monitoring program aimed to collect and compile information regarding surface water availability and use; and (ii) a steering committee composed of members from various state and federal agencies, local governments, and other groups with interests in surface water use in Montana).

Montana House Bill 360 (“HB 360”) establishes a surface water assessment and monitoring program. The program, which will be a part of the Montana Bureau of Mines and Geology, will collect and compile surface water information at the direction of a steering committee. HB 360 provides that the steering committee should comprise members from various state and federal agencies, local governments, and other interested parties and organizations. For example, the bill requires the steering committee to include members from Montana’s Department of Natural Resources, Department of Environmental Quality, Department of Agriculture, the Montana State Library’s Natural Resource Information System, and a representative of tribal governments in Montana. Furthermore, the bill suggests that the steering committee should also include members from organizations such as Montana’s Board of Oil and Gas Conservation, a soil and water conservation district, and representatives from the agricultural, ecological protection, and development communities.

Like many areas in the mountain west, Montana is experiencing increased growth and development; thus, the Montana legislature developed this surface water assessment program in order to collect data and information regarding the availability and usage of its surface water. The State implemented a groundwater assessment program, which has provided relevant information regarding the availability and use of groundwater in the state. Proponents of HB 360 contend that implementing the surface water assessment program will produce data similar to the information gathered by the groundwater assessment program and lead to more informed policies regarding the use of surface water in the state.

HB 360 is a relatively short, straightforward bill. The bill does not attempt to pass broad, sweeping legislation. Instead, HB 360 merely establishes a surface water monitoring program. By incorporating the monitoring program into the Bureau of Mines and Geology, the bill does not require a fiscal note to establish funding sources. As such, there were not many changes or challenges to the bill throughout the legislative process.

At the committee hearings, there were no opponents to the bill. Many of the questions brought up in the House and Senate committee hearings concerned how Montana would pay for the program. While HB 360 neither allocates specific funding, nor establishes a concrete plan for securing future funding, sponsors and proponents of the bill did not seem concerned about the cost of implementing the program. Housing the program within the Bureau of Mines and Geology allows the bureau to use its funds to get the program off the ground while the committee works to secure federal grants and donations to continue the monitoring program while looking for future state funding. The only proposed changes to HB 360 came from the Governor’s desk and required appointing a member of the tribal government as part of the steering committee. Unsurprisingly, the House and Senate passed HB 360 with minimal opposition and Governor Steve Bullock signed the bill into law on May 8, 2017.

Supporters of the bill were reluctant to commit to any future policy or implications associated with HB 360. At this point, the bill’s program remains limited to gathering and compiling information on the availability and use of surface water in Montana. HB 360 is supported by numerous organizations and industries within Montana that rely on surface water, such as the cattle and ranching industry, the agriculture and farming industry, conservation organizations, fishing and recreational organizations, and even a realtor and development organization. These organizations understand the importance of having thorough and accurate information regarding the availability and supply of surface water. In the future, the program could help these industries employ more efficient water uses and shape policies regarding surface water in Montana.

HB 360 could be Montana’s first step in establishing sensible surface water policies. The legislation sets up a monitoring program charged with gathering and compiling accurate information regarding surface water systems. This information will provide more accurate and thorough information to the people and industries in Montana that rely on the use and availability of surface water. In turn, this program could lead to more sustainable water policies and practices in the state.

Christopher McMichael

Image: The Montana Capitol in Helena. Flickr user, Jimmy Emerson, DVM. Creative Commons.

S.B. 28, 65th Leg., Reg. Sess. (Mont. 2017) (allowing parties aggrieved by Department of Natural Resources and Conversation decisions about new water right permits and changes to water right permits the option to have the decision reviewed by either the Water Court or the appropriate district court).

Montana Senate Bill 28 (“SB 28”) expanded the jurisdiction of Montana’s Water Court. This bill allows water users aggrieved by the final written decision of the Department of Natural Resources and Conservation (“DNRC”) regarding new water right permits or changes to water right permits a choice of the venue in which to bring their appeal. Before the passing of SB 28, aggrieved water users could only bring their complaints before the district court presiding over the location of the water right. SB 28 allows the plaintiff to choose between either the Water Court or the appropriate district court. The sponsors of the bill aimed to provide an option for aggrieved parties to have a court with more experience in the subject matter hear their cases.

The first iteration of SB 28 only provided this choice without further instruction. An opponent speaking in the Senate hearing noted that many of these cases involve multiple aggrieved parties who believe the DNRC has harmed their water rights by extending rights to others. Following this, the Senate amended the bill to allow the district court presiding over the location of the water right to choose the ultimate venue when multiple aggrieved parties choose conflicting venues. This amended version of the bill passed in the Senate thirty-five to eleven and went to the House for consideration.

Chas Vincent, a Republican representing the Water Policy Interim Committee, served as the primary sponsor for SB 28. While drafting the bill, the committee considered a University of Montana study that reviewed the water policies of several neighboring states and a Supreme Court of Montana survey of district judges regarding water rights issues. The study advised the expansion of the Water Court’s jurisdiction as proposed in SB 28. The survey of district court judges found that a majority had no experience in water law, a super majority wanted the ability to refer cases to the Water Court, and another super majority favored the Water Court, rather than the district courts, hearing appeals of the DNRC. Water users, landowners, realtors, and attorneys specializing in water law widely supported SB 28. Most of the bill’s proponents saw the option in venue as a means to faster and cheaper resolutions to grievances regarding the DNRC’s permit decisions. However, some landowners and water users expressed concerns regarding the Water Court’s prime directive, judicial appointment of Water Court judges, and the funding of the DNRC appeals cases in the Water Court.

The Montana Legislature created the Water Court in 1979 to deal with the immense backlog of un-adjudicated water rights claims. Because Montana did not require reporting of water rights until 1973, many water rights claims still have not been adjudicated; however, full adjudication is still not expected until 2028. Prior to the introduction of SB 28, the Water Court existed only to adjudicate pre-1973 state water rights and Indian and federal reserved water rights. Opponents argued that increasing the Water Court’s jurisdiction would distract it from its ultimate goal of completely adjudicating water rights in Montana. The proponents countered that the likely case load would not exceed five to six additional cases per year. The proponents agreed that the Water Court should primarily focus on water right adjudication and administration of decrees. However, proponents also asserted that the additional option for aggrieved water users will not impair the Water Court from meeting its primary adjudication goal, especially considering that the current Water Court has increased efficiency in adjudicating water rights beyond that of previous courts.

Many opponents also expressed concerns that Water Court judges are appointed rather than elected. The opponents believed that the judges presiding over these cases should be elected, as are district court judges in Montana. Proponents asserted that the bill does not limit access to an elected judge, it merely provides a choice. Additionally, if a conflict on choice of venue arises, the elected judge makes the ultimate venue decision.

Opponents questioned the funding for the Water Court. Prior legislation that funded the Water Court specifically designated the funds for adjudication of claimed water rights. Proponents explained that the funding for the appeals cases will come from the general fund that already partially funds the Water Court. The bill, however, does not address this issue.

Moreover, proponents claimed that enforcement of water rights will soon become a major issue as Montana becomes a completely adjudicated state. This small-scale expansion of jurisdiction will allow for an assessment of the Water Court’s ability to handle an increased caseload involving a variety of water law issues. Opponents stressed that a decision about the future of the water court should receive greater scrutiny, involve in depth studies, and require prolonged deliberation.

After much deliberation, Montana’s House of Representatives also passed SB 28, with a vote of seventy-eight to twenty-two. The President of the Senate and the Speaker of the House signed the bill on March 20th, and Governor Steve Bullock signed it into law on March 31, 2017. Aggrieved water users in Montana now have the option to petition either the Water Court or the presiding district court to hear appeals of final written decisions from the DNRC.

Sydney Donovan

Image: The Montana Capitol in Helena. Flickr user, Jimmy Emerson, DVM. Creative Commons.

City of Helena v. Cmty. of Rimini, 397 P.3d 1 (Mont. 2017) (holding that, despite a period of non-use, a presumption of nonabandonment of a water right that comported with the great and growing cities doctrine, applied to a municipality when the city proved intent to use its entire water right in the future by constructing a conveyance with the capacity to utilize the city’s water right completely).

Junior water right holder Andy R. Skinner and the Community of Rimini objected to the City of Helena’s (the “City”) claim to 13.75 cubic feet per second of water from Tenmile Creek in Helena, Montana. The City’s water right decree dates back to 1903. In 2011, the Water Master found that the City abandoned 7.35 cfs of its water right and imposed a specific place of use restriction on the City’s water rights. The City filed objections and in 2013, the water court restored the City’s water rights in full, but adopted the Water Master’s specific place of use restriction. Skinner appealed. The Montana Supreme Court remanded for further proceedings. On remand, the water court ruled that the City had abandoned 0.60 cfs of its water rights. Once again, Skinner appealed.

The legislature amended M.C.A. section 85-2-227 in 2005 to create a presumption of nonabandonment for water rights claimed for municipal use by a city when the city meets any of four criteria, one being the construction and maintenance of a diversion or conveyance structure. Skinner argued that, under M.C.A. section 1-2-109, the statute could not be applied retroactively because the statute does not expressly declare so. The Court upheld the water court’s finding that the 2005 amendment to M.C.A. section 85-2-227 was a change in the burden of proof, which was a procedural change in law rather than a substantive one. Therefore, the presumption of nonabandonment of a water right applied to the City, so long as the City met the requirements of the statute.

Abandonment of a water right typically requires both non-use and intent to abandon. However, under M.C.A. section 85-2-227, the City would benefit from a presumption that it did not abandon its water right, despite any period of non-use, if the City used any part of its water right while showing an intention to plan for future growth. Constructing a diversion or conveyance structure, conducting a formal study, or maintaining a facility connected to the municipal water supply system for emergency purposes evidenced intent to plan for future growth. The Montana statute comports with the purpose of the great and growing cities doctrine, a doctrine that originated from the Colorado Supreme Court. The doctrine arose in response to growing urban populations to ensure an adequate water supply to the public. The policy behind the great and growing cities doctrine is that cities cannot survive without acquiring more water and should therefore receive different treatment than private individuals. The Colorado Supreme Court emphasized the importance of cities’ ability to obtain appropriations of water that will satisfy the needs of the city, especially resulting from a normal increase in population within a reasonable amount of time.

The Court upheld the water court’s finding that the City showed intent to use its water right in the future. The City created a presumption of nonabandonment by constructing a concrete diversion pipeline with a capacity of 13.15 cfs in 1921, commissioning an engineering report in 1929, and maintaining an open channel ditch for emergency municipal water supply. Although the 1921 conveyance, called the Rimini Pipeline, did not have the capacity to transport the City’s entire water right (13.75 cfs), the Court held that the City did not intend to abandon the unused 0.60 cfs. The 1929 engineering report revealed that friction, leakage, waste, and other factors were restricting the capacity of the City’s two smaller transmission pipelines. The report qualified as a formal study evidencing the City’s intention to accommodate for its future needs. In 1948, the City constructed a new pipeline with the capacity to convey the City’s entire water right of 13.75 cfs.

Skinner contended that the City’s period of non-use between 1948 and 2011 was sufficient to rebut the presumption of nonabandonment. The water court agreed with the Water Master’s finding that the City did not present evidence that it intended to increase the Rimini Pipeline’s capacity from 13.15 cfs to the full water right capacity of 13.75 cfs. Although the 1948 conveyance had the capacity of 13.75 cfs, the Rimini Pipeline was restricting the new pipeline’s water flow to 13.15 cfs. Skinner argued that the beneficial use requirement limits the City’s water right to the amount of water actually used for a beneficial use. The water court held that the City did not present sufficient evidence to show intention to increase its diversion capacity to the full extent of the water right. The Court held the water court erred in upholding the Water Master’s determination because the City took affirmative steps towards planning for the City’s future water needs. The Court emphasized the importance of protecting a city’s efforts to substantially utilize its water rights. The City met the statutory criteria for the presumption of nonabandonment of its water right as applied to the City’s entire system of conveyances, including all pipelines. The Court held that despite the period of non-use, the City’s construction of the 13.75 cfs capacity pipeline permitted an inference that the City sought to make use of its entire water right.

Montana law requires a final water right decree to include a place of use restriction. The statute for this place of use element is constitutionally protected. The City challenged the restriction, but failed procedurally to comply with the notice requirement when challenging a constitutionally protected statute.

Accordingly, the Court affirmed the water court’s opinion that the presumption of nonabandonment applied to the City, reversed the water court’s determination that the City abandoned 0.60 cfs of its water right, and remanded for the entry of an amended judgment awarding the City its entire 13.75 cfs water right in Tenmile Creek.


Justice Jim Rice, dissenting.

Justice Rice did not agree with the Court’s finding that M.C.A. section 85-2-227 could be applied retroactively because the 2005 amendment to the statute was procedural. He argued the amendment was in fact substantive because the statute, as applied, produced a different legal result from the result that would have followed had the presumption of nonabandonment not been applied. He found the sixty year period of non-use by the City unfair to Skinner’s claim, especially considering Skinner’s four water rights dating back to 1865.

Kate Mailliard

Image: Helena, Montana. Flickr user, Sergei ~ 5of7. Creative Commons.

United States v. Barthelmess Ranch Corporation, 386 Mont. 121 (2016) (holding: (i) the U.S. Bureau of Land Management could perfect stockwatering appropriation claims in its reservoirs irrespective of contentions rooted in historic water use from the same source and (ii) the United States owned reserved water rights for stockwatering in a pothole lake on federal grazing land pursuant to an Executive Order).

The United States Bureau of Land Management (“BLM”) filed six water right claims in Montana. These included five reservoir claims rooted in Montana law, and a reserved water right in Pothole Lake, a natural feature located on a federal land reservation. The BLM claimed to use each water source, all located wholly or partially on federal land, for wildlife and stockgrazing for grazing permittees, the latter being the primary focus in the following discussion.

The BLM’s five reservoir claims relate to the agency’s acquisition of Funnells Reservoir in 1951, and its construction of the Windy Day Reservoir in 1955, Tallow Creek Reservoir in 1936, North Flat Creek Reservoir in 1937, and the Sharon Reservoir in 1961. The sources of contention regarding the BLM’s water right claims, including Pothole Lake, stemmed from the respective holders of property interest in surrounding land (“Objectors”). The Objectors claimed proper ownership of BLM’s water rights, claiming instead their own right that derived from ancestral free grazers who, prior to the reservoir construction, owned and grazed livestock on the appurtenant land.

BLM claimed a reserved water right in Pothole Lake pursuant to two legal frameworks: (1) the Stock Raising Homestead Act enacted in 1916, which permitted the Secretary of the Interior to reserve lands containing “waterholes or other bodies of water needed or used by the public for watering purposes”; and (2) the Public Water Reserve No. 107 (“PWR 107”) enacted pursuant to a 1926 Executive Order, which “reserved all springs and water holes on vacant, unappropriated, and unreserved public land throughout the country.” The Objectors claimed, however, that ancestral free grazers owned and watered stock in the same area.

The BLM moved for summary judgment for all objections and the Montana Water Court consolidated them into this single case. The water court first addressed the validity of the Objectors’ claims to BLM reservoirs. The water court recognized as undisputed that the BLM developed the Windy Day, North Flat Creek, Tallow Creek, and Sharon Reservoirs with a stockwater right priority date coinciding with their respective completion and since consistently used the reservoirs for stockwatering. Then, after addressing the common law elements for valid water appropriation, the water court determined that impounding water into a reservoir is a sufficient diversion and the sole contention rested on whether the BLM applied the water to beneficial use. The Objectors claimed that the BLM itself did not own livestock or use reservoir water and thus under Montana law, BLM could not perfect its stockwatering claims.

However, the water court examined principles from a governing precedent, Bailey v. Tintinger, that “an appropriation of water for the use of others was complete upon the completion of the diversion system [in this case the reservoirs] and making the water available for use by others.” When extending this principle to the present case, the water court determined that Montana law did not require that BLM own and graze livestock to perfect water rights and complete appropriation.

Similarly, the water court found it undisputed that BLM consistently used Funnels Reservoir since acquiring its property interest. Thus under Montana law, BLM also acquired any appurtenant water rights.

Although the Objectors claimed prior use by their ancestral free grazers precluded BLM’s six water right claims, this contention ran counter to the core principle of water rights governed by Montana law that “multiple appropriators can enjoy rights from the same source.” The water court also clarified that the Objectors’ claimed stockwatering by direct uses from water sources, not by reservoir impoundments, and it followed that the Objectors’ claims differed from the subsequent BLM reservoir claims.

The water court next addressed the Objectors’ claim to Pothole Lake and determined that PWR 107 reserved Pothole Lake’s respective land and water.

The Objectors appealed. The Montana Supreme Court (“Court”), under the “clearly erroneous” standard, reviewed two issues on appeal: (1) whether the BLM held stockwatering rights in constructed reservoirs under Montana law and (2) whether the BLM owned reserved water rights for stockwatering in Pothole Lake. The Objectors made multiple contentions and the Court rejected each as invalid when evaluating them pursuant to relevant federal and Montana law.

The first issue raised three primary contentions. First, the Court confirmed that BLM appropriated water. However, Objectors argued that irrespective of a capability to appropriate water, the BLM failed to meet the requirements for perfecting water rights because it did not charge grazers for reservoir use. The Court quickly dismissed this contention when reiterating that Bailey expressly recognized that, “as long as the water is made available for sale, rental, or distribution or disposal to others, it is a valid appropriation.” Additionally, the Court acknowledged that Montana public policy encourages capable individuals and entities to appropriate water and make it available for use by others. Further, the Court recognized that Montana law commits to “recognizing the ability to appropriate water for its ultimate use by a third party.”

Second, the Objectors argued that even if BLM could appropriate water, it did not do so by impounding water in reservoirs because “simply facilitat[ing] use of water already appropriated” by ancestral free grazers did not constitute a valid appropriation. Again, the Court dismissed this contention as unsupported by Montana water law and public policy when noting, “multiple appropriators can claim water rights from the same source, and that the first in time has the best right.” Along that vein, the first user on a water source does not obtain the right to exclude all others from claiming water from the same source. The Court noted, for example, if Objectors held viable stockwatering claims based on ancestral free grazers, then those rights would be senior to those claimed by BLM because each right has its own priority in time.

Third, the Objectors contended that by developing new reservoirs, the BLM “simply modified” prior stockwatering practices by ancestral free grazers rather than creating a new appropriation. The Court acknowledged, however, that although a direct-flow water user can construct reservoirs to stabilize available water without creating new appropriations, the BLM claimed no such direct-flow water rights. BLM only claimed new rights to stored water with mid-twentieth century appropriation dates, which created separate rights with their respective priority dates.

Once resolving the contentions, the court then emphasized its unwillingness to depart from the “bedrock principles” of Montana water law that multiple appropriators can perfect claims from the same water source and thus the water use by ancestral free grazers did not preclude the BLM from claiming water rights to the same source. Further, Montana public policy encourages the benefits arising from allowing appropriations that make water available to third party users.

The second issue led the Court to determine the broad language of PWR 107 reserving “every spring or waterhole, located on unsurveyed public land” encompassed Pothole Lake. Therefore, the BLM maintained a reserved stockwatering right on federal land and the Objectors raised no valid contentions to undermine this established right.

Accordingly, the court affirmed the water court holding that the BLM maintained valid appropriations in its reservoirs under Montana law and the BLM owned reserved water rights for stockwatering in Pothole Lake pursuant to PWR 107.

Justice Laurie McKinnon, dissenting.

Justice McKinnon disagreed with the majority’s application of Bailey to conclude that the BLM put water to beneficial use and completed an appropriation. Instead, the dissent argued that the majority expanded Bailey’s narrow exception that applied to public service corporations. The Bailey court determined that to require a corporation to perfect a water right upon showing of an actual beneficial use would be impractical because corporations could not perfect a water right until a third party put water to a beneficial use. Here, the dissent argued the majority misinterpreted that exception to include “anyone” who “distributes” water could perfect a water right. In so doing, the dissent raised foundational legal principles to conclude that beneficial use “ is one that inures to the benefit of the appropriator.” Along that vein, the dissent contended that the ancestral free grazers inured to their benefit when their cattle grazed and drank water, and thus completed a valid appropriation. Conversely, the dissent further argued the BLM did not perfect a water right because it “never owned the livestock that appropriated the water or grazed federal lands” and thus, irrespective of reservoir construction, the BLM did not appropriate water under Montana law.

Gia Austin

Image: Cattle graze on a pasture near Browning Montana. Flickr user Mark Stevens, Creative Commons.


Granite Cnty. Bd. Of Comm’rs v. McDonald, 383 P. 3d 740 (Mont. 2016) (holding the Water Court did not err in its interpretation of a 1906 decree stating a reservoir owner must release not less than 1200 miner’s inches of water for senior downstream appropriators during irrigation season, while also enjoining downstream users from demanding more than the natural flow of the creek above the dam in times of shortage).

This case came before the Supreme Court of Montana as an appeal from a decision of the Water Court regarding the decree from a 1906 case, the interpretation of which clarified disputed water rights between Granite County (“the County”) and McDonald, a private party.

The rights under dispute in this case arose from the terms of the 1906 Decree in Montana Water, Electric and Mining Co. v. Schuh, decided by the United States District Court for the District of Montana. That court granted Montana Water, Electric and Mining Company (“the Company”), the predecessor to Granite County, water rights associated with storage of Flint Creek water in the Georgetown Lake reservoir for the purposes of generating hydro-electric power. McDonald, who is a successor to one of the defendants in that case, objected to the County’s water right claims, two of which arise out of the Schuh Decree.

The root of the controversy in Schuh is the Decree’s seemingly conflicting language. The Decree states that during irrigation season, the Company must cause to flow into the channel of Flint Creek “not less than 1200 miner’s inches” of water below its electric plant, enjoining the Company from diverting water from the creek decreed to downstream users. At the same time, the Decree recognized downstream user’s rights were limited to the natural inflow of the creek. As a result, the Company was prohibited from releasing any amount exceeding that of the “average natural flow” which, during the irrigation season, does not “exceed 1200 miner’s inches” of water.

For purposes of this case the Water Court defined “natural inflow” as that amount of water that would pass through the creek without interference from the dam and defined “storage water” as water from the natural flow of the creek that was impounded for use during times of low natural flow.

Applying the analysis in Schuh, the court had to determine whether the Decree intended that the reservoir release 1200 miner’s inches of storage water throughout the irrigation season, or whether Granite County was only required to release to downstream users that amount equivalent to the natural inflow of the creek above the dam. McDonald argued that the wording in Schuh required the County to maintain a constant flow of not less than 1200 miner’s inches of water for senior downstream appropriators to use at all times during irrigation season regardless of the natural flow of the creek into the reservoir. The County contended it was only required to release the natural inflow of Flint Creek, and not to release storage water from the reservoir when the natural inflow from the creek fell below 1200 miner’s inches.

The Water Court looked to other decisions of the Montana Supreme Court, explaining that limiting downstream users to the natural conditions of a stream at the time of appropriation and not considering storage water as part of the natural flow of a creek was consistent with established Montana Law. The Water Court further explained that Montana case law has recognized that downstream appropriators may not demand release of storage water exceeding the natural inflow of the creek. Though the Schuh Decree did not state this explicitly, the language of the Decree implicitly recognizes this principle. The Schuh court’s decision was consistent with the law as it applies to storage rights, which recognizes natural flow may only be impounded for storage purposes when there is enough water to satisfy rights of senior downstream appropriators. However, a reservoir is not required to release lawfully impounded storage water to downstream appropriators in times of low natural flow.

In interpreting seemingly conflicting statements in the Schuh Decree, the Water Court determined the Schuh court did not intend for downstream users to receive a benefit that the law did not provide; in this case, the mandatory release of storage water is the unintended benefit. Instead, the Schuh court’s instruction that the Company release 1200 miner’s inches “at all times” was designed to ensure that the water that was used in the hydroelectric plant was returned to the creek and not diverted elsewhere. It was not meant to be interpreted that the Company release 1200 miner’s inches at all times during irrigation season regardless of natural flow levels of Flint Creek. The Water Court held this was consistent with the County’s contention that it was not required to release storage water for downstream appropriators to use during times of shortage.

The Supreme Court affirmed the Water Court’s decision, concluding that the Schuh Court did not intend for downstream appropriators to have a right to water stored behind an upstream dam as long as the dam operator released that amount of water which would naturally flow through the stream without the interference of the dam.

The final issue the Water Court contemplated was McDonald’s assertion that principles of claim preclusion estopped the County from contending that it was not required to release 1200 miner’s inches of water at all times during irrigation season. The Water Court dismissed a res judicata argument on grounds that both parties agreed the point under dispute was the interpretation of rights the Schuh Decree already recognized, and interpreting a decree is not the same as re-litigating issues of fact already decided in it. The Water Court next considered McDonald’s claim of judicial estoppel. The court dismissed the claim, finding her argument failed because she showed no evidence the County intended to commit fraud or abuse the judicial process, thus failing to demonstrate all the elements of judicial estoppel.

The Supreme Court affirmed the Water Court’s dismissal of McDonald’s estoppel argument, holding the Water Court properly applied the principles of claim preclusion upon which McDonald relied.

In a specially concurring opinion, Justice McKinnon agreed with the opinion of the court that downstream appropriators have no right to water stored behind an upstream dam as long as the dam operator releases that amount of water which would naturally flow through the stream without the interference of the dam. She concurred specially to opine that the Schuh Decree established a quantity of natural flow above the dam only, and this did not enjoin senior downstream appropriators from using in excess of 1200 miner’s inches when the natural inflow of the Flint Creek exceeded 1200 miner’s inches. Similarly, the Decree did not require the Company to draw from its reservoir to supplement inflow rates when they dropped below 1200 miner’s inches.

Megan McCulloch

Image: Flint Creek in Montana. Flickr user Tim Gage, Creative Commons.

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.

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.

Bostwick Props., Inc. v. Montana Dept. of Natural Res. and Conservation, 2013 WL 696352 (Mont. 2013) (holding the Montana Department of Natural Resources and Conservation had the authority to deny a developer a water permit; runoff from impermeable surfaces could not be used in calculating net depletion of surface water; developer’s burden to prove lack of adverse effect was not shifted because of an uncertain hydrological connection or a senior rights holder’s ability to bring administrative action; de minimus use did not establish developer’s lack of adverse effect; developer proved lack of adverse effect for its proposed irrigation season only mitigation plan; and developer was not prejudiced by the bias of the Montana Department of Natural Resources and Conservation).

Bostwick Properties (“Bostwick”) filed an application with the Montana Department of Natural Resources and Conservation (“DNRC”) for a water use permit for municipal use in a subdivision in Gallatin County, Montana.   When DNRC failed to take immediate action, Bostwick sought a writ of mandate to require DNRC to issue the permit or hold a hearing on the matter.  DNRC then denied Bostwick’s water use permit saying it failed to demonstrate no net depletion of surface water, and failed to prove legal availability and lack of adverse impact.  The District Court for Gallatin County (“district court”) granted Bostwick’s writ of mandate request, which DNRC appealed to the Supreme Court of Montana (”Court”).  The Court reversed the district court’s decision and remanded the case to DNRC to hold a hearing on Bostwick’s permit application because Bostwick had not proved lack of adverse effect and DNRC had no legal duty to grant Bostwick’s permit.  After the hearing, DNRC again denied the permit, determining Bostwick’s water use would cause a net depletion of surface water; it failed to demonstrate lack of adverse effect; and its mitigation proposal was inadequate.  Bostwick sought review by the district court, which agreed DNRC failed to show no net depletion or lack of adverse effect, but found Bostwick’s proposed mitigation adequate.  Both Bostwick and DNRC appealed this decision to the Court.

The Court ruled on five issues on appeal.  First it determined whether DNRC had the authority to deny Bostwick’s permit.  Bostwick argued Montana law required DNRC to grant the permit because Bostwick settled all objections.  The Court held that not only must Bostwick resolve all objections, but it must also prove legal availability and lack of adverse effect by a preponderance of the evidence, and DNRC had the authority to deny Bostwick’s permit if it did not do so.

The second issue was whether DNRC and the district court’s requirement Bostwick mitigate its water usage was proper.  Bostwick argues four theories to support the proposition that it would not cause net depletion of surface water or adversely affect senior rights.

First Bostwick asserts paved roads and parking lots in its proposed development prevent water from being used by native plants or evaporating, which can then be collected and used to recharge the Gallatin River.  Bostwick argues DNRC should consider this runoff when calculating if a net depletion exists.  The Court said Montana law did not require DNRC to consider any sources of water other than those sources in the proposed permit; to consider other sources would be contrary to legislative intent; and doing so would cause an absurd result if Bostwick could factor that water into their calculation even though it had not right to use it.

Next, Bostwick argues because there is no way to determine when its proposed extraction of groundwater would cause the Gallatin River to lose water, the DNRC could show no net depletion or adverse effect.  Bostwick asserts DNRC must grant the permit if it cannot prove there is net depletion.  The Court said this attempt to shift the burden of proof to DNRC was impermissible and Bostwick failed to carry its burden to show lack of any adverse effect.

Bostwick then argues the amount of water it applied for is de minimus and would not adversely affect senior rights.  The Court said it was Bostwick’s burden to demonstrate a lack of adverse effect and it failed to do so.

Finally, Bostwick asserts senior rights holders could force Bostwick to stop using water through the administration of priorities, yet again attempting to shift the burden.   The Court once again said that the law was clear; it was Bostwick’s burden to show it would not jeopardize senior rights, and it failed to make that showing.

The third issue was whether the district court’s determination that Bostwick’s mitigation proposal was adequate was proper.  Bostwick’s proposal mitigated it water usage but only during the irrigation season.  The district court noted Bostwick’s non-irrigation season usage could only potentially adversely affect one party, FWP, who said Bostwick did not adversely affect them.  The Court held that while generally settling with objectors was not enough, because there was only one affected party who would not suffer adverse effects, Bostwick met its burden of showing its mitigation plan was adequate.

The fourth issue was whether DNRC could require Bostwick to specifically identify a water right it would use for mitigation.  Bostwick argued providing DNRC with other details including the amount and location of water, timing, and seniority rights was sufficient.  The Court agreed with DNRC that the identification of the specific water right was necessary to fully evaluate the mitigation plan.

The final issue was whether DNRC was biased and therefore prejudiced Bostwick.  Bostwick argued DNRC’s bias during the permit application procedure violated its right to due process.  The Court remanded the case to DNRC after the first denial of Bostwick’s application, despite Bostwick’s request a neutral party hold the hearing.  The district court held there was no prejudice because it independently came to the same conclusions as DNRC.  The Court found this reasoning to be persuasive and held Bostwick failed to show substantial prejudice.

The Court affirmed the judgment of the district court on all counts.