367 P.3d 732
Mont.2016Background
- Charles Fellows owns decreed Spring Creek water rights (Sands Cattle & Land Co. v. Jackson) and alleges Spring Creek is recharged by seepage from the Teton River at the Springhill Reach, so diversions from the Teton (via the Bateman Ditch) can impair his rights.
- The Perry Defendants hold Teton River rights decreed in Perry v. Beattie; those rights are administered by a Water Commissioner who has used the Bateman Ditch as a water-management tool.
- Fellows sued in district court challenging the Water Commissioner’s diversion practice; the district court was originally dismissed but this Court in Fellows I reversed and remanded, instructing certification to the Water Court if hydrological connectivity were proven.
- On remand the district court granted summary judgment finding hydrological connectivity and certified the controversy to the Water Court under § 85-2-406(2)(b), MCA, seeking a tabulation of the existing rights involved so Fellows could object to Bateman Ditch diversions.
- The Water Court limited the tabulation to the rights historically using the Bateman Ditch and Fellows’s Spring Creek claims (Saylor, Choteau Cattle Co., and Fellows), issued a final certification order, and denied the Perry Defendants’ Rule 59(e) motion to alter or amend.
- The Perry Defendants appealed, arguing (1) the Water Court misapplied Fellows I and §85-2-406(2)(b) by not treating Fellows’s rights as Teton rights and by narrowing the scope/tabulation, and (2) the district court’s substitution of judge was improper and appealable.
Issues
| Issue | Plaintiff's Argument (Fellows) | Defendant's Argument (Perry Defs.) | Held |
|---|---|---|---|
| Whether Water Court properly determined which water rights were "involved" after remand | Certification should identify the rights needed to resolve Fellows’s complaint (those affecting Spring Creek recharge) | Water Court should have treated Fellows’s rights as modified Teton rights and included all named defendants/right-holders affecting recharge; certification was improper because rights were already determined or District Court should have identified parties | Court upheld Water Court: Spring Creek is the source of Fellows’s rights; certification under §85-2-406(2)(b) was proper; Water Court may identify rights involved and limited tabulation to rights historically using Bateman Ditch and Fellows’s claims |
| Whether certification under §85-2-406(2)(b) was permissible given temporary preliminary decrees | Certification appropriate to provide information for district court to resolve distribution controversy | Certification improper because rights were already determined (use §85-2-406(4) enforcement tabulation only) | Court held certification proper because not all rights in Basin 41O have been finally adjudicated and statute permits Water Court determination when district court requests it |
| Whether Water Court exceeded scope by not including all named defendants/rights (scope/tabulation) | Fellows sought limited relief (ability to object to Bateman Ditch use); limited tabulation sufficient | Perry Defs. argued tabulation too narrow; Water Court reframed controversy and omitted necessary parties/rights | Court held scope is defined by district court complaint; Water Court reasonably limited tabulation to rights tied to Bateman Ditch and Fellows’s Spring Creek claims |
| Whether district court’s substitution of judge was improper and appealable | (No separate claim by Fellows) District court validly substituted judge | Substitution invalid because case is a water distribution controversy exempt from substitution; appeal timely | Court held substitution challenge untimely: motion was filed long before finality and notice of appeal not timely; remand will proceed before substituted judge |
Key Cases Cited
- Fellows v. Office of Water Comm’r, 365 Mont. 540, 285 P.3d 448 (Mont. 2012) (remand: hydrological connectivity finding should lead to certification under §85-2-406(2)(b))
- Eldorado Co-Op Canal Co. v. Lower Teton Joint Objectors, 376 Mont. 420, 337 P.3d 74 (Mont. 2014) (affirmed tabulation of water rights that can be diverted through the Bateman Ditch)
- Giese v. Blixrud, 365 Mont. 548, 285 P.3d 458 (Mont. 2012) (§85-2-406(2)(b) should be applied to allow expeditious resolution of distribution controversies)
- Baker Ditch Co. v. District Ct., 824 P.2d 260 (Mont. 1992) (Water Court has exclusive jurisdiction over determination of existing water rights)