IN RE ADJUD. OF EXIST. RIGHTS TO USE WATER

Decision Date24 September 2002
Docket NumberNo. 00-100.,00-100.
PartiesIn the Matter of the ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, Both Surface and Underground, Within the Missouri River Drainage Area, Including All Tributaries of the Missouri River in Broadwater, Cascade, Jefferson and Lewis and Clark Counties, Montana (Basin 41I).
CourtMontana Supreme Court

G. Steven Brown (argued), Attorney at Law, Helena, Montana, Robert N. Lane, Montana Department of Fish, Wildlife and Parks, Helena, Montana, For Appellant.

C. Bruce Loble (argued), Chief Water Judge; Colleen Coyle, Water, Master, Montana Water Court, Bozeman, Montana, For Respondent.

David W. DePuy (argued), DePuy Law Firm, P.C., Livingston, Montana; William L. Madden, Jr., William L. Madden, Jr. P.C., Bozeman, Montana, (Estate of Eva S. DePuy), Lois J. Schiffer, Assistant Attorney General; Jeffrey Dobbins and Mark R. Haag (argued), Attorneys, United States Department of Justice; Alexandra L. Davis, Office of the Solicitor, United States Department of Interior (United States of America), Laura Ziemer (argued), Bozeman, Montana (Montana State Council of Trout Unlimited), John E. Bloomquist (argued), Doney, Crowley, Bloomquist & Uda, Helena, Montana (Montana Stockgrowers Association), Senator Lorents Grosfield, Big Timber, Montana (Pro Se), For Amici Curiae.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 The Montana Department of Fish Wildlife and Parks (DFWP) appeals a ruling by the Chief Water Judge on five pre-1973 water rights claims in the Missouri River basin. The five claims are based on diversions of water for purposes of fish, wildlife or recreation. The Water Court ruling refers to In the Matter of Dearborn Drainage Area (1988), 234 Mont. 331, 766 P.2d 228 (Bean Lake) in remarking on the potential invalidity of the claims. This Court invited submission of amicus curiae briefs and received briefs from: Estate of Eva S. DePuy; Montana State Council of Trout Unlimited; Montana Stockgrowers Association; Senator Lorents Grosfield; and the United States. Only DFWP can represent citizen interests in the adjudication process and, in light of our decision in Bean Lake, DFWP presently asserts only those fish, wildlife and recreation claims that involve diversions. To provide guidance to the Water Court, we must resolve the Bean Lake confusion and address not only the question of whether fish, wildlife and recreation uses are recognized as beneficial uses for appropriation purposes, but also whether a diversion is required for appropriation purposes.

¶ 2 We restate the issues as follows:

I Was Bean Lake correct in its holding that "under Montana law before 1973, no appropriation right was recognized for recreation, fish and wildlife, except through a Murphy right statute?"
II Does the Water Court's use of the "Bean Lake remark" violate the Supreme Court's Water Right Claim Examination Rules 5.II and 5.IV(1)(a)?
Jurisdictional Issues

¶ 3 The Water Court asserts that the DFWP's appeal is procedurally defective. The Water Court points out that a Master's Report was issued with regard to the five DFWP claims involved. The Master's Report denied the DFWP's requests, and after the ten-day objection period provided for in Rule 53(e), M.R.Civ.P., and Claim Examination Rule 1.II(4) lapsed, without any objection from DFWP, the Chief Water Judge adopted the Master's Report. The Chief Water Judge correctly points out that when objections are filed, the Water Court researches the issues raised and issues an extensive written opinion which, in turn, facilitates review by the appellate court. Accordingly, the Water Court urges this Court to dismiss this appeal or, in the alternative, convert the appeal to a petition for declaratory relief or supervisory control. DFWP asserts that strict compliance with Rule 1.II(4) of the Claim Examination Rules is not necessary here since it has consistently and repeatedly objected to the Water Court's insertion of its Bean Lake remark and that the Water Court has adopted an unwavering policy of rejecting DFWP's arguments concerning this policy even when DFWP has filed objections to the master's reports. Nonetheless, DFWP indicates that it has no objection to the Court's reclassifying this appeal as a petition for declaratory relief or supervisory control.

¶ 4 While we agree with the Water Court that compliance with Rule 1.II(4) of the Claim Examination Rules is critical to effective appellate review, we determine, given that our decision in Bean Lake is the genesis of the alleged confusion which the parties seek to resolve, it is appropriate that we treat this matter as a continuation of the 1988 Bean Lake controversy wherein we exercised supervisory control. Accordingly, as we did in Bean Lake, we accept jurisdiction and exercise our power of general supervisory control over the Water Court, pursuant to Article VII, Section 2(2), of the Montana Constitution and Rule 17, M.R.App.P. Taking jurisdiction now on these purely legal issues will resolve confusion in our case law, promote judicial economy, expedite determination of existing water rights and assist in avoiding protracted litigation. McDonald v. State (1986), 220 Mont. 519, 524, 722 P.2d 598, 601.

Facts and Procedure

¶ 5 This case involves five pre-July 1, 1973, water appropriation claims in the Missouri River basin. DFWP filed the five claims based on diversions for fish, wildlife and recreation purposes for adjudication in the Water Court. The Water Court inserted in the abstracts for the claims a remark (hereafter "Bean Lake remark") stating:

There is a question as to the validity of this claimed right. In the Matter of the Dearborn Drainage Area, 234 Mont. 343 (1988) (the Bean Lake case) the Montana Supreme Court stated: "It is clear therefore that under Montana law before 1973, no appropriation right was recognized for recreation, fish and wildlife, except through a Murphy right statute."

¶ 6 Without ruling on any issue, the Water Court's remark highlights the conflict in our case law regarding whether appropriations of water for fish, wildlife and recreation purposes are valid under the prior appropriation doctrine before 1973.

¶ 7 DFWP objected to the insertion of the remark and requested that the Water Court remove the remark from the abstracts of the five claims. Following submission of briefs and a hearing, the Water Court denied DFWP's objections and retained the Bean Lake remark. The Water Master issued a "Report and Memorandum and Order" finding that the five claims fell within the parameters of the Bean Lake decision and that therefore the insertion of the Bean Lake remark was appropriate. DFWP did not object to this Report, and the Chief Water Judge subsequently adopted the Master's Report.

¶ 8 After repeatedly objecting to the insertion of Bean Lake remarks and receiving consistent denials in the Water Court, DFWP appealed to this Court for resolution of the conflict in our case law as to whether appropriations for fish, wildlife and recreation uses are valid water rights under prior appropriation law. The Water Court objected to appearing as respondent in this case, and this Court issued an order that the Water Court, as author of the Bean Lake remark, was a proper respondent in these proceedings. Given the on-going and state-wide significance of the issue, we invited all interested parties to submit amicus curiae briefs.

DISCUSSION
I Was Bean Lake correct in its holding that "under Montana law before 1973, no appropriation right was recognized for recreation, fish and wildlife, except through a Murphy right statute?"
Water Law in the American West: The Doctrine of Prior Appropriation

¶ 9 Miners in California developed a water use system as an alternative to the riparian water system prevalent in England and the eastern United States. While riparians allowed owners of land abutting the water source to control it, the more arid climes of the American West required a different approach. Prior appropriation, adapting flexibly to the needs of a developing society, allowed diversion to a distant location and simply required use of the water for a beneficial purpose. Western states adopted the miners' customs through both court decisions and codification, and the doctrine of prior appropriation became the law of the western states. A. Stone, Selected Aspects of Montana Water Law 7 (1978); Christine A. Klein, The Constitutional Mythology of Western Water Law, 14 Va. Envtl. L.J. 343, 347-48 (1995).

¶ 10 The common law elements of a valid appropriation are intent, notice, diversion and application to beneficial use. However, in Montana, as in many western states, the flexibility of the prior appropriation doctrine has allowed acquisition of the right to use a specific amount of water through application of the water to a beneficial use. A. Stone, Montana Water Law (1994). Judicial opinions and scholarly commentators have repeatedly stated the rule that application to a beneficial use is the touchstone of the appropriation doctrine. See, e.g., A. Stone, Selected Aspects of Montana Water Law 30 (1978); Thomas v. Guiraud (1883), 6 Colo. 530, 533 ("[t]he true test of appropriation of water is the successful application thereof to the beneficial use designed, and the method of diverting or carrying the same, or making such application, is immaterial").

Bean Lake

¶ 11 Bean Lake involved a claim for inlake water rights for fish, wildlife and recreation purposes in a natural pothole lake. In Bean Lake this Court stated, "[i]t is clear therefore that under Montana law before 1973, no appropriation right was recognized for recreation, fish and wildlife, except through a Murphy right statute."1 Bean Lake, 234 Mont. at 343, 766 P.2d at 236.

¶ 12 The Bean Lake decision appears to be inconsistent with earlier case law in which the Court recognized appropriations for fish,...

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