*1 COMPANY, The MONTANA POWER A Montana Cor- Respondent poration, Petitioner, Cross-Appellant, and CAREY, v. MARTIN Dutton; Felsheim; Jessie S. Walt SuSANNE L. HuCKABA; LEAVITT; McDoWELL; MARY ROBERT Betty Department Monforton; Remi and Jo of Natural Shaw; Simonish; Resources Conservation: Frank Jim Appel- Tebay, and Norma and Ernest Defendants lants, In Matter APPLICATION FOR BENEFICIAL WATER USE PERMIT NO. 24921-s41e MONFORTON, REMI and BETTY Petitioners Respondents. No. 83-323. 7, Submitted March 1984. 28, Decided June 1984.
Rehearing
Aug.
Denied
Robert argued for DNRC. Niklas, Helena,
Kline & & for Dutton McDowell. Moore, Rice, Bozeman, O’Connell & David C. Refling, argued Moon for Monfortons.
Gough, Shanahan, Waterman, Helena, Johnson & Ronald Waterman, Helena, argued for Montana Power. Association, Doney,
Ted J. Development Montana Water Helena, for amicus curiae. Opinion of MORRISON delivered
MR. JUSTICE Court. cases consolidated appeal
This arises from two Department review of a judicial originated petitions (DNRC’s) final or- Resources and Conservation Natural use beneficial granted der which the Monforton’s permit. in October 1979 permit use applied
Monfortons for the tributary Springs, Cold appropriate water from (MPC) and downstream Power Co. Boulder River. Montana (Huckaba/Felsheim) Sub- timely objections. filed irrigators objec- all applicants where sequent public hearing to a grant- a final order represented, tors were the DNRC issued ing upon specific restrictions. conditioned and MPC judicial
Petitions for review filed Monfortons of the heard in the District Court were consolidated to be County, First Judicial District and Clark Honorable Lewis review, held that Lessley presiding. Upon W. W. the court statutory authority by imposing re- DNRC exceeded its *3 the water permit strictive conditions on the and reinstated permit use accordance with the terms of the Monforton’s motion, subsequent application. Pursuant to Monforton’s attorney’s upon fees imposed the District Court reasonable MPC and Huckaba/Felsheim. appeal
Both MPC and filed notices Huckaba/Felsheim the tax- concerning permit of the use granting both the attorneys ation of fees. to di- permit application sought
Monforton’s authorization 1,575 year per per vert minute to 623 acre-feet gallons up year from Cold April through from 15 of each October in Jef- acres of land Springs sprinkler irrigation on 331 County, ferson Montana. collectively as- application objectors
The to the Monforton in Cold unappropriated sert water flows insufficient Monforton’s Springs satisfy existing rights both and the (MPC), a Company proposed diversion. Montana Power hydroelectric operates six corporation, Montana owns and generation facilities on the Missouri River down- located point. Nu- proposed, stream from the Monforton’s diversion hy- these existing appurtenant merous are Huckaba plants. droelectric Jessie Felsheim and Susanne holders whose group right are members of a of senior water ap- Monforton lands are also located downstream from the propriation site. water use granted
DNRC’s final order the Monforton’s permit subject following to the limitations:
(1) reduced quantity appropriated The water to be was per year. per year from 623 acre-feet to 400 acre-feet (2) appropriation period during The of time which the period running of time from could be made was limited to a 1, April 15 to October April 15 to rather than from (3) existing permit subject prior The was made to all rights.
(4) permit The to the final determina- subject was made prior existing rights. tion of all (5) expressly by permit The diversion authorized Dam is limited to times when Montana Power’s Cochrane spilling water. review, that:
Upon the district court held (1) found statutory provisions The DNRC violated of use period Monforton’s limiting Water Use Act period ending August (2) permit by placed limitations on the conditions and right to substantially the Monfortons’ prejudice the DNRC appropriate water. errors, the Mon- granted trial judge
To correct these DNRC’s final order: forton’s and modified the (1) 15 to Oc- April from period running To allow a of use 15; tober
(2) up to 623 acre- appropriation and of To allow diversion per year; feet and
(3) Power’s Coch- that Montana To remove the condition can divert before the Monfortons spilling rane Dam be water. subsequent deter-
From the District and judgment Court’s appeal. Although attorneys’ mination of fees the defendants appeal, this court questions presented upon numerous are dispositive: following finds the issues (1) 85-2-312, grant Whether Sections 85-2-311 and MCA beneficial authority the DNRC the to control and condition permits? water use
(2) sup- credible evidence to Whether there substantial port the DNRC’s order?
(3) taxing Whether the District erred in reasonable Court attorneys fees and costs? 85-2-312, provides part pertinent
Section MCA follows: (1) permit. may permit
“Terms of department The issue a for requested, less than the amount but no case may requested it issue or permit a for more water than is than can be beneficially purpose used without waste for the application. may require stated department The modification plans specifications appropria- for the may It issue tion or related diversion or construction. terms, conditions, restrictions, subject and limi- rights tations it considers other necessary protect appropriators, per- and it may temporary issue or seasonal mits. A permit subject existing rights shall be issued final determination of those made under chapter.
“(2) department may limit the time for commence- works, appropriation completion ment of the of construc- tion, proposed and actual application of the water to the limits, In fixing department beneficial use. those time shall magnitude project, consider the cost and of the encountered, and, physical features to be engineering on projects designed gradual development gradually necessary for reasonably increased use of the time good use. For gradual development and increased may in its permittee, department cause shown *5 96 reasonably
discretion extend time limits.” authority To hold that the DNRC does grant not have to permits conditional use this plain language belies the of clearly statute which must grants power. such Restrictions necessary be protect prior appropriators to the of or be to perfect right related time limits to the water under permit. authority, only the Without such the DNRC could it, for, deny in a grant application applied resulting an or permit system creating rights. inchoate Such uncontrolled development of a valuable natural resource contradicts the spirit purpose underlying the Water Use Act. ownership early
State
recognized
of the water resource was
in
evolutionary stages
the
of water law.
“
by necessary implication
state of Montana has
“[T]he
sub
modo,
ownership,
assumed to itself the
of the rivers and
state, and,
expressly granted
streams of this
. . . has
streams,
right
appropriate
to
of
which right
the waters
such
if properly
. . .
in
full
appropriator
legal
exercised
vests
title to the use
made
by
grant
of such waters
virtue of
v.
Smith
by
this state as
of the
owner
water.”
Denniff
(1900),
20, 21-22,
24
(Emphasis
original.)
Mont.
State in un- of the water resource was asserted ambiguous terms the 1971 Montana Constitution.
“(3) surface, flood, All atmospheric wa- underground, property are the ters within the boundaries of the state of the State appro- to people subject the use of its and are priation Mont. provided by for beneficial uses as law.” (1972) added.) IX, (Emphasis Const. Art. Section 3 enacted, 1973, Prior when the Water Use Act was acquiring neither of the two distinct of water methods of this rights provided any acquisition the state control over statutory state-owned The first method of natural resource. prospec- appropriating legislated required a in- appropriator post place tive notice at the of written diversion, to file twenty days posting tended and within county similar notice with the clerk and recorder 89-814, proposed through diversion. Sections 89-810 (1947). R.C.M., did not declare legislature Since statutory acquiring method the exclusive method of remained ef rights, mining the historical and local customs fective who diverted giving right individual applied water from a water source and the water to a bene Bailey Tintinger v. (1912), 154, 169, ficial use. 45 Mont. P. 575. court’s public The absence of a record made the conflicting task of determining priority the relative claims impossible to use the water resource an task. *6 State had no means water uses to ac regulate proposed commodate water flows senior protect existing available and rights public being water nor to insure interest was that promoted. Act, MCA,
The Water
seq.,
Use
Section 85-2-101 et
was
enacted in 1973. As the
of
urgings
culmination
consistent
reform,
it
procedure
appro-
“substituted a new
for the
Agriculture
General
priation
Corp.
of
rights,
. . . .”
v. Moore
(1975),
510, 512,
166 Mont.
“[I]f nominal, is to be more than there must be the same author- ity and control over streams and over diversion of water as is now general government exercised over the occu- pation oversight and . Such public settlement of lands . . precaution and necessary proper protection for the of public interests . . . growing order that controversies out of extravagant injurious may claims be avoided.” Wyoming Packing Co. Ranch v. Hammond Hereford (1925), Wyo. 236 P. [33 14] policy
The Water Use emphasizes underlying Act participation recognize state “to appropriation . . . .” existing rights confirm all to the use of waters 85-2-101(4), unambiguous language Section MCA. This legislature promotes understanding that the Water rights designed protect holders Use Act was senior water adversely by junior appropriators from encroachment af- fecting rights. 85-2-312, MCA, those senior man- Section authority protection. dates the state’s to afford such proceeding The record of the trial contains substan supply tial, source in credible evidence that the water Cold Springs inadequate pro to sustain the Monforton’s posed appropriation along existing senior with with imposed by out the restrictions the DNRC. Department hydrologist Fitz,
Diana C. a of Natural for the compiled report Resources, Bureau, in the Water Sciences “Analysis Availability on the Missouri entitled of Water Canyon Ferry River Above Reservoir.” Based on this docu- unavailability testimony mentation, Ms. Fitz’ confirms the imposed subsequent date of water to the 15 cutoff by the DNRC:
“Based on the data had from Bureau of Reclamation and during the U.S.G.S. I found that water was available a short period during spring extending through of time Basically, majority irrigation season, least a occasion. on part, found, for the most there was no water available years. during And, 40% of the the other 60% of the years, long pos- extending as there would be some water *7 sibly beginning maybe August.” or 9th or 10th of
Representing Gregg Co., Montana Power Mr. Don testified (1) capac- facility largest that: the Cochrane has the turbine ity putting River; water to beneficial use on the Missouri (2) per rating second; 10,000 cubic feet the turbine about (3) plant very storage capability, the Cochrane has limited daily river, no sea- which handles fluctuations in the but (4) storage; of Reclamation’s sonal when the Bureau Canyon Ferry rights and the excess have been satisfied at spillage spilled, only 27% of that water is Cochrane utilizes satisfy use. MPC’s water for beneficial Using depicting hydrographs water flow over the available testimony supported further past twenty years, Gregg’s Mr. 15 date after the unappropriated the lack of water permit: use imposed restriction on Monforton’s beneficial “Q. account, your be testi- Taking that into what would mony, say, . . . the time window when as to the shall we 10,000 above may flowing or the river be available cfs.? history years
“A. ... on of the 19 or tabu- the basis exhibit, days, lated on this that there will be around July starting April ending on . . . around 30 on around in . . in the anywhere 10. When will be available . Upper Basin, Falls, in of that Missouri above Great excess Falls, plant.” that we can use the Cochrane at Great upon testimony Based this District Court’s credible judgment is reversed and the DNRC’s final order is rein- granting stated the beneficial water use conditioned by appropriate restriction. conjunction
In claim ruling, with this Monforton’s attorney’s fees must be denied. Since the final order affirmed, prevail DNRC is the Monfortons are not the ing party attorney and cannot recover fees from the respondents.
Reversed.
MR. CHIEF and MR. JUSTICES JUSTICE HASWELL HARRISON, SHEA, and GULBRANDSON and WEBER OLSON, THE Judge, A. HONORABLE THOMAS District sitting for MR. JUSTICE SHEEHY concur. OLSON, Judge, A. District HONORABLE THOMAS SHEEHY,
sitting concurring for MR. JUSTICE dissenting: of Natural agree majority Department with the (DNRC) statutory
Resources has author- and Conservation per- new water ity impose on a conditions or limitations not left short appropriators mit to ensure that senior are case, In of DNRC’s condition approve water. would needed if senior users irrigate that Monforton not *8 100 practical
water. The effect of such a vary limitation would year from year, depending upon availability of water for irrigation. herein, As I point shall out such a limitation good makes sense because of unpredictability of our Montana weather. Despite by science, the advances made our technology quantity cannot tell us what of water is go- ing to However, be available in years. future DNRC went much further in this case and attached another limitation on Monforton: no irrigation August, September or Octo- any year. ber of dissent,
My
therefore,
is to this last condition formulated
which,
effect,
DNRC
attempts
predict
the future
water availability,
thus resolving any
against
doubts
Mon-
forton,
favor of
appropriators.
the senior
For over a
years
hundred
Montana water
simple
law was based on
If
practicality.
available,
there is water
then it should be
put to a beneficial use in
example,
this arid state. For
Court long ago endorsed
persons
the idea that
the first
put water to a beneficial
right
prior-
use received a
that had
Realty
Co.,
Mettler
v. Ames
ity
over others
who came later.
151,
(1921).
61 Mont.
101
Co.,
1093;
also,
Kohrs,
P. at
This is not to that all was well Montana water with system law. The had serious defects. Professor Albert Stone has noted these:
1. Legislative attempts require users to file a no- water appropriation tice of were ineffectual.
2. County water virtually records were useless determin- ing the actually amounts of water being used. Stone,
See Opportu- “Montana Water Rights New —A nity,” Montana Law Review at 68.
In legislature Act, the adopted pre- the Water Use sumably to correct In these and other defects. its stated policies, legislature again endorsed the time-tested basis that water Montana water law: resources the state be put to optimum use and not wasted. Section 85- beneficial 1-101(1), MCA, 1983. As between appropriators, the first time is 85-2-401,., the first in right. Section An irriga- 1983. tor who diverts more water “actually than he can and nec- essarily” use must return it to the stream for others. Sec- 85-2-412, ., tion court, DNRC, 1983. The district not was given jurisdiction supervise the distribution of water among appropriators. 85-2-406, MCA., Section Ag- 1983. grieved senior water users retained their traditional access to the 85-2-406, MCA., district court. Section 1983.
To solve the notice problems, ap- and recordation all new plicants petition were to permission DNRC for to divert 85-2-302, and use water through permit system. Section MCA, department 1983. The obligated was to issue a new permit water if the applicant “by substantial credible evi- dence” showed rights there was water available and the 85-2-311, others adversely would not be affected. Section MCA, 1983. Based on the context in which this new act came into being, only legislature can conclude that was preserve hundred-year determined to the best of our experience state, supplemented with the use of water in this by regulatory a workable scheme.
By when conditioning Monforton’s use of water to times appropriators, the senior Montana Power’s Coch- including Dam, clearly rane found that there needed DNRC available substantial credible evidence that water was adversely and the of others would not be affected MCA, found, required by 85-2-311, so Having Section condition, department that there objectional added the by could be no from and after irrigating Monforton every year. only explanation can attach to found, actions, department’s having water available ear- lier in year, is that this would allow Monforton’s to clutter the to use water showing right records fall, enough not be when the likelihood was there would him. be our water argued available for Thus it could from whence records would be headed back down the road come, no as- showing usage we had records but with *10 in use actually position surance that the user a to was the water described. majority opin-
I in analysis implicit find this kind of the supported I unpersuasive. department, ion. also find it here. It finds a by the is hairs majority opinion, splitting season, half of the irrigator irrigate new can for the first protected by with the senior the conditions appropriators may in the not be water the second permit, but since there half, to find clear prohibition a flat is issued. am unable conditions, when we legislative authority arbitrary for such water users have the assurance that in all events the senior protected. will be held to be has been
Traditionally, “substantial evidence” different, of evi- stringent preponderance “a and less than Shea, Co. v. F.Supp. Shipping dence”. Strachan (S.D. 1967). proof that Monforton’s Texas would find found, for and credible department which the substantial sufficient to authorize irrigation the first half of the season season, subject protecting a water for the entire the senior users. is case, I find there in this
Looking particular the record irrigate Monforton could finding that support evidence to uninformed and October. Lest August, September in one spring, in the only use water irrigators reader think prudent to see only need roads of Montana travel the back in the fall. building up farmers soil moisture sig- obvious, lay out stands Starting with the Monforton which irrigation system, money nificant for an sums is excess speaks convincingly he there that believes ap- non-use of the other either from extra moisture or from agree could not propriators. appropriators The senior in the was available among themselves on when extra water Sonny Huckaba testified Boulder River after wet but that there were usually dry August the river was his Shaw years enough with more water to meet needs. than August. the 1st of testified that there was never water after con- MPC is disputed. Montana Power’s evidence was also River, to testing appropriations upper Missouri new Dam, facility near Great protect generating its at Cochrane Falls, But only storage capabilities. which has limited MPC’s given DNRC not have much credence to seems concern it recent water because the record shows issued 15 for permits (September late into the fall. with dates Brown, 11493-s4lG, 12016-s41G, Lane, October 15 20301-s41F) Robbie, reports October 15 for Even DNRC’s entirely were not when where there consistent with irrigation. objective an for extra So Boulder impression that view of record with an leaves reader proposition. “off on” Given the extra water an weather, as no vagaries this should come of our Montana uncertainty surprise. But one think that all would *11 would when DNRC attached be taken into consideration including the usual protection appropriators, for senior only when Montana irrigate admonition to Monforton Dam. of Cochrane top Power water” over the “spilling pro- However, indicated, further and as have DNRC went hibited fall irrigation. majority essence, it,
Reduced to its bare as I see is holding though appropriators pro- that even the senior are integrity filing sys- condition, tected the first of the protected limiting irrigator, tem is to be at the cost of a new though might even there are times that water be available prohibited period. exalting This, time is form to me procedure Up point time, over substance. to this we telling “put state, have been the Monfortons of this all the you say, can to a beneficial use.” Now we “DNRC’s first, records come if there a doubt there will be no usage, even if water is available the future.” do not state, believe it is in the best interests of this nor did legislature authority agency giving envision, to a state arbitrary capricious to act in such an or manner. approve
I would the issuance of a to use water to only Monforton, conditioned that he not use water when appropriators the senior had need for the water under their prior rights. Judge Lessley’s I would affirm decision for the reasons stated.