*1 I-549, PETITIONERS Respondents, Petitioners v. MISSOULA IRRIGATION DISTRICT,

Respondent Appellant. No. 04-286.

Submitted on Briefs November 2004. April 19, Decided 2005. MT 100. 326 Mont. 527. 111 P.3d 664. *2 Appellant: Buley, For Tipp Buley, Richard R. & Missoula. Respondents: Firth, For Susan Deputy City A. Attorney, (Missoula Housing Missoula Authority); Hegman, Charles M. Janice Hegman, se, M. pro Missoula; Dale, *3 J. Milodragovich Lon Dale (Lon Binney, Dale); Steinbrenner & Missoula J. Dale & J. Pamela W. (Curt Mendenhall, Thane, Carl Worden & Missoula & Deborah Aasved; Knudson); Aiken, Edward C. and Carol M. James E. Jardine Weaver, & Stephensen Blewett Falls (Mary Kathryn Scott); Great Nygren, Christian T. Milodragovich Dale & Binney, Steinbrenner (Christian Missoula Nygren). and Julia Opinion

JUSTICE COTTER delivered the of the Court. (“MID”) Irrigation ¶1 Missoula District from appeals various of Entry Granting Notices of Decrees Exclusion from the MID for petitioners, numerous entered in the Fourth Judicial District Court. part We affirm in part. and reverse in

ISSUES We restate the as ¶2 issues follows: 1. Did deny by the District Court process granting

¶3 due petitions for upon exclusion the MID based unsupported by of fact submitted Master? 2. Did the Court authority District have the to order the MID to back

reimburse taxes?

530 its discretion it refused to 3. Did the District Court abuse when response?

allow the MID to amend its PROCEDURAL BACKGROUND FACTUAL AND to The MID was created in 1922 as a successor a consolidated maintain, ditch, irrigation operate, in order to and administrate irrigation statutory process there Although district. by petition for predated the MID’s creation which landowners could district, legislature in exclusion from an 1997 Montana requirements temporary which made the exclusion legislation enacted From 1997 stringent type less within a certain of district. 1998, 31, parties for approximately petitioned 550 until December 85-7-1846, pursuant exclusion of their land from (1997). purposes The District Court consolidated procedure dispose determining developing the issues of law and each petition. Dist., 269, Irrigation 2002 MT Beginning with Geil v. Missoula (“Geil I”), continuing through RSG

312 59 P.3d 398 Mont. Dist., 214, 322 369, 96 Irrigation 2004 MT Mont. Holdings v. Missoula MT 217, 322 Dist., (“RSG”); Irrigation v. 2004 P.3d 1131 Geil Missoula (“Geil II”); Larango Irrigation 388, 96 v. Missoula Mont. P.3d (“Larango”), this Dist., MT 324 Mont. 103 P.3d 552 multiple issues raised and between Court has considered forth parties. background A detailed factual was set various necessary I each upon and has been elaborated Court Geil here, setting do forth such proceeding. We continue to so subsequent Opinion to this in the Discussion below. pertinent facts as are OF REVIEW STANDARD findings of fact to determine whether a district court’s We review Drainage River Area clearly Matter Clark Fork erroneous. (“Clark Fork”) (citation 1120, 1122 11, 14, (1992), 833 P.2d 254 Mont. omitted). supported if it is not clearly is erroneous effect of the evidence, misapprehended the if the court substantial us that court evidence, record convinces if review of the or our 14-15, Fork, 833 P.2d at 1122 Mont. at a mistake. Clark made *4 omitted). (citation law, of of our standard a district court’s conclusions reviewing In

¶9 its determine whether Court must plenary is and this review omitted). (citation RSG, We 9 law correct. ¶ the is interpretation of pleadings denial of a motion to amend court’s review a district 531 RSG, abused its 9 determine whether district court discretion. ¶ (citation omitted).

DISCUSSION ISSUE ONE by MID deny process granting Did the District Court due for from petitions upon unsupported findings exclusion the MID based fact Standing of submitted Master? 85-7-1802(2), (1997), Under owners of of land three MCA tracts § canal, any irrigation

acres or smaller which not district served system, facility, undertaking may other petition or to exclude their district, pursuant process tracts from an to the established (1997). 85-7-1846, person forth in MCA title to holding set a tract § 85-7-1802(2), (1997), land meeting the criteria in may MCA § petition include, court for The petition district an exclusion. must among other things, statement the tract’s users do not and feasibly cannot obtain water through (1997). 85-7-1846(1)(e), existing irrigation works. Section MCA Brief, In its petitions draws our attention to nineteen the MID improperly claims were from the MID excluded because the unsupported findings made inaccurate or fact which were in turn the District upheld by Calling Court. our map Irrigation attention to a entitled “Missoula District Petitioners Surveyed by City/County and Access as Department Missoula Health 1995,” Summer of which was submitted the MID and admitted as Exhibit in the proceedings (“Map”), argues below the MID that the Map clearly particular shows that affected by these petitions ditches, nineteen have all actual access to MID and thus fail (1997). qualify 85-7-1846, for exclusion under § The MID out points petitions that 119 of the 549 for exclusion heard, argues were granted court should have Furthermore, petitions which were not argues heard. it that all 549 granted regardless were the petitioners presented whether any fact, support evidence in of their In petitions. argues presented even when evidence was petitioner which showed that a had irrigation works, access to the still granted petition, applicable contravention of the statutes. Although appears MID would like Court to granting petitions, reverse remand orders exclusion on all any the MID has forth for put grounds undisputed us to do so. It is However, many petitioners did not under appear hearing. *5 (1997), 85-7-1846(5), only objection if MID a MCA it is the files valid hearing place. be in the first particular petition to a that a need held Moreover, 85-7-1846(6), (1997), provides MCA that the court shall if fifteen petition objections a for exclusion no are filed within grant good days perfectly Therefore a reason filing petition. of the such many petitions hearing. of the without supports granting many indicates that of the 549 Our review of the record level, hearings by MID at the and were petitions disputed were not the obligation It this to hearings. thus never scheduled for is not Court’s petitions of the 549 to determine which were comb the record each heard, heard, hearing which which scheduled for a but not were at is hearing never scheduled for a all. district court’s decision were the appellant be correct and it is the who bears burden presumed to 58, Harney, the Hawkins v. 2003 MT establishing ¶ court erred. 384, 305, The the appellant, 314 Mont. 66 P.3d 35. as ¶ ¶ it establishing error the trial court in each case has the burden of Thus, inquiry petitions will limit our to those nineteen contests. we disputed in the MID’s Brief. specifically petitions disputes, MID the MID the nineteen the Concerning to the properties these to have access

argues the shows erroneously It ditches. maintains the irrigation MID’s did not have access to the MID’s properties found that these incorrectly to these the District Court conclude which caused - 85-7-1802 and eligible pursuant for exclusion to petitions §§ were (1997). 1846, MCA designates coverage area and The illustrates MID’s all the irrigation Additionally, MID’s other works. ditches and petitions are numbered and represented of land within codes, explains color with Map. Map’s key on the The

color-coded “Access, Using,” Using,” designations including Not various Access, Using.” properties specifically Ten of the nineteen and “No Not Map-the MID’s own designated Brief are disputed in the MID’s Access, designated is Using,” “No Not and an eleventh Exhibit-as In Access, Surveyed.” “Not Using”and partially “No as Not partially words, into evidence document placed the MID has other Using” have “No Access” and “Not properties these illustrates that claim now that the Thus for the MID to ditches. no have access by finding properties that these Standing Master erred illogical ditches is using the MID’s are not provided As MID has not by MID’s own Exhibit. unsupported upholding District Court erred any evidence respect with to these eleven Master’s and conclusions all Hawkins, therefore affirm the District Court on petitions, ¶ eight petitions which are discussed below. but remaining to be petitioners eight petitions behind the necessary requested documents and Opinion resolved filed manner, MID timely exclusion of their from the in a (1997). -1846, Although pursuant 85-7-1802 and §§ apparently hearing petitions asserted at the level that several of these deficient, supplied were it has not such for our review. We turn determine appears record as before us to whether *6 correctly findings regarding particular contends that the these petitions were erroneous. 176, 290,

Petitions and 369 findings specific 176, 290, The to Petitions grouped and 369 were petitions with several other which have not been specifically disputed by the MID appeal. Regarding group petitions, Standing this of objection Master found that the MID’s to the exclusion of 1, properties, July filed 2003-which that each asserted “Petition is deficient in proof offers insufficient and documentation that the feasibly Petitioners cannot Irrigation obtain water from the District through existing irrigation provide works”-did not sufficient evidence that these properties by are served the MID’s The Standing works. further found that the MID’s works do not touch these properties, properties private these had land public roadways and/or works, between them and the petitioners nearest MID and these do not feasibly and cannot obtain water from the MID works. Map The illustrates that the property at issue behind Petition 176

has a MID running ditch across it and designated Map is on the as “Access, Using.” Map The further reveals that Petition 176 consists of parcels-two “Access, three of which are designated Using” as and one Access, of which designated Using.” is “No Not respect With to Petition 290, Map illustrates property this also has a MID ditch running Map “Access, across it and is listed on the as Using.” Map also reveals that Petition 290 consists of two parcels-one of which is “Access, designated as Not of Using,” designated one which is as Access, “No Using.” Finally, Map property Not illustrates that the at issue behind upon property, Petition 369 has two MID ditches access, and the Map property currently indicates this has but is not using, the MID’s works. The MID maintains that if the Standing compared had 176, 290, Map, apparent

Petitions and 369 to the it would have been 534 Standing

to the Master that the affected these Petitions Although petitioners all of have access to the MID’s ditches. each those they not to petitions asserted in their did have access the MID’s Map-shows None these MID’s evidence-the otherwise. hearings. petitioners made themselves available their scheduled finding showing of fact will not be reversed that it absent a Mont, Fork, clearly 833 P.2d 1122. A is erroneous. Clark at at clearly is erroneous if it substantial supported is 14-15, Fork, 254 at 833 P.2d 1122. The MID evidence. Clark Mont. at testimony its presented Map position. as evidence of With no Map, no petitioners and evidence in the record to rebut is support determine that there no substantial evidence to parcels 369 from the exclusion within Petitions findings as upholding MID. The District Court therefore erred petitions, accordingly and we reverse the relate to those three designated the two within Petition 176 regards decision “Access, Using,” parcel on the as within Petition Using,” parcel Not and the sole designated on represented by group petitions The remainder of the Petition 369. 176, 290, Standing 369 in the grouped which was with Petitions hereby findings Master’s remain unaffected reversal and affirmed.

Petition in the Master’s grouped Petition 324 was also specifically disputed with several other which have been regards petitions, Master found by the MID. In these *7 July properties, of filed objection MID’s to the exclusion the that the that offers “Petition is deficient in 2003-which stated the insufficient Petitioners cannot and documentation proof through existing Irrigation District feasibly obtain water from the provide not sufficient evidence irrigation works”-did presented MID by Again, the MID’s properties are served works. 8, 2003, hearing in at the December no evidence other than for the designations objections. upon Map’s of its Based support were they found that grouping, in this not touched private public roadways land and were surrounded way feasible to obtain had no by any petitioners water from the MID’s works. inappropriately issued argues The MID included Petition because

a blanket which only not has by Petition 324 property represented indicates that ditch, actually using access to a MID but is water.

property appear hearing, owners behind Petition 324 did not at a although petition their was called for a and the MID hearing, did not put on further property represented evidence about the in Petition 324 aside from the Map. On Map, Petition 324 parcels consists of four of land. Two

parcels “Access, designated are Using” designated and two are “No Access, Not Using.” With no evidence presented Map, to rebut the determine that there is no substantial support evidence to portion exclusion of that of “Access, Petition 324 which is designated as Using” from the MID. The District Court erred in upholding the relate to petition and we accordingly reverse the decision in regards to only, only Petition 324 in regards to the two parcels in Petition 324 which are designated as Using” on the Map. The remainder of the group of grouped with Petition 324 in the Standing Master’s findings remain unaffected by this reversal and hereby affirmed.

Petition 330 Specific Petition which consists of eight tracts of land owned the Missoula Housing Authority (“MHA”), the Standing Master found that MHA does not and cannot feasibly obtain water from the MID irrigation works for Tracts through 6 and Tract 8 because the MID’s works do tracts, touch these which are by city surrounded private streets and property, and these tracts are by any “served canal, system, facility, or other undertaking” of the MID. The Standing Master further found that the closest MID ditch to Tracts 1 through 6 and Tract 8 is across several parcels private property public and a street. The MID argues that Petition 330 should not have been

granted exclusion, an representative because a MHA testified that one covered Petition 330 had a MID running ditch along quarter” “west of the property. responds MHA requested that it eight exclusion of tracts of land from the and ultimately it was granted tracts, exclusion of seven of those because the Standing Master concluded that one of the eight tracts had feasible access to the works. Neither the MID nor the record in this case clarifies whether the tract which was not granted exclusion was the particular tract which the MHA witness testified had ditch access. The MID has failed to meet its establishing Hawkins, burden of error. See 35. The record being ¶ devoid any meaningful way in which we could particular exclusion, review this we affirm the District Court regarding *8 536 eight of land in Petition of the tracts included

the exclusion seven 330.

Petition 362 found that owner to Petition Specific

¶28 feasibly obtain water from the Bradley Owens does not and cannot property his is not “served Map MID works as reflected because canal, undertaking” or of the system, facility, other by any it. The property do not touch the or serve and the MID’s works had used the MID’s Standing Master further found that Owens never works, his from the closest private property separates property MID ditch. He that he had hearing, appeared Owens and testified. said At the he years that had owned this the MID’s works in the fourteen used explained engineer opined that he was an

property. Owens any standpoint, property he believed could from a strict “technical” works, financially feasible although might not be access MID’s that, boundary property while the of his to do so. He further testified ditch, feet from the center of MID the land was 25 approximately currently property. private he have to cross was which would with the testimony and the are consistent Owens’ finding MID’s do not touch Owens’ Standing Master’s works MID’s works could not access the property. Owens private uphold is sufficient the District crossing without land from the properly excluded Court’s conclusion that Petition Thus, regarding Petition 362. the District Court MID. affirm Petition 509 Standing Master found owner to Petition Specific Investments) (d/b/a not and cannot Larsen does

William T. Larsen on the from the MID’s works reflected feasibly obtain water canal, system, by any district is not “served property because his MID. The undertaking” of the facility, or other or property Larsen’s MID’s works do touch further found that the it, and Larsen’s has never used the serve Larsen with the by city private property, is surrounded streets property street. property public and a MID ditch several across closest parcels, four two Map indicates that Petition covers Access, labeled Using,” Not and two of which are are labeled “No Standing Master’s Using.” The MID claims the Not access to testified that he had argues that Larsen are erroneous and by his covered at least one of the irrigation ditch on an petition. testimony. We have reviewed Larsen’s Larsen conceded that from *9 509,

at least one of the properties covered Petition he had access to works, although MID’s he not using the water. Under 85-7- § 1846(l)(e), (1997), MCA a tract’s user must state the user does not feasibly and cannot obtain through water from the district added.) existing irrigation case, (Emphasis works. In he Larsen’s some, conceded that he feasibly all, can obtain water on but not of his “Access, tracts. The parcels indicates that two of his are Not Using,” and the remaining parcels covered Petition 509 do not have Thus, access. no supports substantial evidence the Standing Master’s contrary. to the As the MID’s indicates that two of parcels Access, Larsen’s Using,” “No Not we reverse the District Court’s upholding Standing of the regards Master’s in 509, only Petition with respect to the two designated which are Using” Not on the Map. We affirm the exclusion of the two “No Access, Not Using” parcels from the MID.

Petition 545 Specific 545, to Petition Standing Master found that owners

Norman Mary Taylor and do not and cannot feasibly obtain water from the MID irrigation works because the MID’s works do not touch the property it, or serve and the property is not by any “served district canal, system, facility, or other undertaking” of the Standing MID. The Taylors found that the used the MID’s works from 1965 until 1985, Taylors’ but that the property is six miles from the Clark Fork source and Taylors are “one of the eligible last ditch users.” Based upon Norman Taylor’s testimony, that, the Standing Master found due to waste and debris entering route, the ditch along its Taylors had continuous problems with their pipes clogging pumps burning and out. Taylors The sought to install a settling pond, a deeper screened pump intake, or diversionary a barrier to reduce blockages, but MID personnel would permit it. The Taylors ceased using the ditch water and installed an irrigation system which draws their well water instead. The Standing Master concluded that because the MID provide did not useable ditch Taylors, water to the their use of the ditch water is not feasible. MID argues that, The in spite Taylors’ Taylors admission that actually

had used the 1985, MID’s works from 1965 to erroneously they found that feasibly could not obtain water from the and that the MID’s works did not property.” “touch the The MID points out that Taylor testified, further question “There is no water,” that we have access to the “technically, we have access. It’s question quality of the ditch water problem. not that It’s the the time it reaches us.” choosing legitimate Taylors may While the have reason 85-7-1846(1)(e), (1997), under

not to use the MID’s they they do must both that not and that users of tract establish through feasibly water cannot obtain added.) Taylors (Emphasis admitted existing irrigation works. no There is feasibly can obtain water from the works. exclusion provision particular statutory scheme for based under Court therefore erred on the of the water obtained. The District quality findings relating Master’s Petition upheld when it petition. regards to this accordingly and we reverse summary, District Court on Petitions 369 and In we reverse the 176, 290, part reverse in on Petitions part 545. We affirm all We the District Court on Petitions 330 and and 509. affirm in this remaining petitions specifically were not addressed *10 Opinion. TWO

ISSUE to authority the to order the MID Did the District Court have ¶38 back taxes? reimburse to reimbursed Court that back taxes shall be The District ordered

¶39 The MID petitions. their they of the date filed the Petitioners as authority the to order that the District Court lacked objected, arguing taxes, did applicable relief under the statutes a refund of the available taxes, did not establish applicable refund of the statutes not include a the fund, petitioners argued that and none of the protest a claiming that any Respondents, in manner. were unlawful assessments though such authority grant to this relief even district courts have arguments petitioners, put forth the same sought relief not was on this in RSG and Geil II issue. unpersuasive we found II, 18, RSG, apply here to holdings Our in Geil and ¶ ¶ ¶40 authorization from explicit Absent remaining petitioners. to judiciary power has no have concluded that legislature, we are a matter protest. without Tax refunds paid refund taxes Therefore, that the District Court we conclude legislative discretion. the excluded paid taxes from the MID to refund improperly ordered on Issue. land, District Court and we reverse the tracts of ISSUE THREE refused Did the District Court abuse its discretion when it to allow ¶41 response? the MID to amend its unpersuasive MID arguments The reiterates we found II, 20-22, RSG, unpersuaded.

in Geil and 20-22. We remain For ¶¶ ¶¶ in we previous Opinions, the reasons set forth these conclude the Court did abuse its when it denied the MID’s District discretion response, motion amend its and therefore affirm District Court.

CONCLUSION reasons, in foregoing part part For we affirm and reverse One, Two, on affirm Issue reverse Issue on Issue Three. GRAY, CHIEF JUSTICE JUSTICES WARNER and RICE concur. JUSTICE NELSON concurs and dissents. Opinion I concur in our with the exception of our decision as Mary Taylor.

Petition that of Norman and to our As decision on I petition, dissent. Taylors’ ability As described in of our Opinion, to access ¶ and use water from MID’s completely canal was frustrated waste entering along debris the ditch its route. It Taylors’ obligation ditch; to clean and maintain the it was MID’s. Even then Taylors attempted to access and use MID installing water pond, intake, settling deeper pump diversionary screened or a blockages barrier to reduce MID traveling MID’s ditch. would not permit these modifications. hand, On one complains Taylors would not use ditch, hand, but on the other MID suffered debris and waste to in its canal that prevented Taylors using

exist water the ditch then, to add to injury, Taylors’ insult refused to allow offer to mitigate so situation could access and use MID’s ditch and *11 water. MID cannot have it both ways. facts, Taylors On these I conclude that the met their burden under (1997). 85-7-1846(1)(e), Taylors do not and could not

feasibly existing obtain water from the irrigation through its irrigation works. I affirm would as to Petition 545. Therefore, I concur dissent.