In re United States
| Decision Date | 30 July 2019 |
| Docket Number | DA 18-0697 |
| Citation | 396 Mont. 433,445 P.3d 828,2019 MT 174 |
| Parties | Claimant: UNITED STATES of America (DEPARTMENT OF ARMY CORPS OF ENGINEERS); City of Fort Peck, Objectors: United States of America (Army Corp of Engineers); State of Montana Attorney General, Notice of Intent to Appear: United States of America (Department of Army Corps of Engineers). |
| Court | Montana Supreme Court |
For Appellant: Bina R. Peters, Dana Elias Pepper, River and Range Law, PLLC, Bozeman, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, Jeremiah D. Weiner, Melissa A. Schlichting, Assistant Attorneys General, Helena, Montana, James J. DuBois, US Department of Justice, ENRD Natural Resources Section, Denver, Colorado (Army Corps of Engineers)
¶1 Claimant City of Fort Peck (Fort Peck) appeals the order entered by the Montana Water Court determining the volume of water to which Fort Peck is entitled pursuant to its Claim 40E 182897-00 in Missouri River Basin (Basin 40E), between the Musselshell River and Fort Peck Dam. We affirm and address the following issue:
Did the Water Court err by entering conclusions in contradiction to the pretrial order and violate Fort Peck’s due process rights?
¶2 Water Claim 40E 182897-001 is a municipal water right claimed by Fort Peck, which lies on the northeast end of Fort Peck Reservoir, southeast of Glasgow, and has a present population of 251 people. Fort Peck came into existence in 1934, during construction of the Fort Peck Dam, when the town was built to house workers on the dam project. Fort Peck and the surrounding area then reached a population of over 10,000 people, and local amenities included a hotel, theatre, hospital, school, stores, dormitories, bunkhouses, as well as homes. Fort Peck’s population dropped dramatically after the dam was completed, and the town no longer boasts a school, hospital or grocery store. Although evidence varied, it appears Fort Peck’s population has also suffered a gradual decline since 1990. The town’s hotel and theatre continue to open seasonally.
¶3 Fort Peck originally claimed a volume of 1,500 acre-feet per year (AFY) based upon an assumed continuous, year-round diversion of 930 gallons per minute. During the claim examination process, the Department of Natural Resources and Conservation (DNRC) added an issue remark to the claim questioning the claimed volume. The Water Court ordered Fort Peck to meet with the DNRC to attempt resolution of the issue remark, and ordered the DNRC to file a memorandum with its recommendations for resolution. The parties were unable to resolve the remark, and the DNRC filed a recommendation that the volume on the claim be set at 206 AFY, based upon available evidence. The Water Court joined the State of Montana pursuant to § 85-2-248(7)(a), MCA.2 In its order joining the State, the Water Court stated that "[t]he prima facie status of Fort Peck’s claimed volume has been overcome by evidence showing it has not used that volume for the last twenty-five years and has no plan to do so in the future," but reserved for trial a ruling on the presumption of nonabandonment for municipal water rights claims under § 85-2-227(4), MCA. At the request of the parties, the Water Court stayed the case pending a decision by this Court in City of Helena v. Cmty. of Rimini , 2017 MT 145, 388 Mont. 1, 397 P.3d 1, in which § 85-2-227(4), MCA, was at issue. After issuance of this Court’s decision in City of Helena , the case proceeded on hearing track, W. R. Adj. R. 16(c), and the parties engaged in discovery.
¶4 The parties submitted a proposed joint pretrial order on June 29, 2018. Pertaining to the arguments here, the parties agreed to the following within the proposed order, including a reduction of Fort Peck’s claim to 773 AFY:
The parties agreed that Fort Peck had satisfied two of the criteria in § 85-2-227(4), MCA, necessary to confer a presumption of nonabandonment of the entirety of Fort Peck’s claim of 1,500 AFY, requiring the State to rebut the presumption in order to prove abandonment by Fort Peck of "any portion" of its claim.
¶5 The Water Court adopted the parties’ proposed pretrial order, and in its adoption order provided the following explanation of the case for trial:
¶6 The case proceeded to trial before the Water Court in July 2018, and the Court entered its Order Regarding Volume and Order Closing Case in October 2018. The Court therein summarized the parties’ trial positions as follows:
Prior to trial, the parties filed a joint pretrial order. Although the parties disagree on the volume Fort Peck should receive, they agree Fort Peck is entitled to receive a volume equal to historical beneficial use plus reasonably anticipated future needs. In Fort Peck’s view, 773 acre-feet per year fairly encompasses historical beneficial use plus reasonably anticipated future needs. In the State’s view, the amount is 206 AFY or less.
¶7 The Court concluded that Fort Peck qualified for the presumption of nonabandonment, that the presumption was overcome by the State, and that Fort Peck was entitled to a volume of 171 AFY "for current use and reasonably foreseeable future use."3
¶8 Fort Peck appeals.
¶9 We apply the same standards of review to decisions of the Water Court as we do the district court. In re Crow Water Compact , 2015 MT 353, ¶ 14, 382 Mont. 46, 364 P.3d 584. We review the Water Court’s findings of fact to determine whether they are clearly erroneous, and we review the Water Court’s "conclusions of law de novo to determine whether they are correct." In re Crow Water Compact , ¶ 14.
¶10 Did the Water Court err by entering conclusions in contradiction to the pretrial order and violate Fort Peck’s due process rights?
¶11 Fort Peck argues the Water Court erroneously contradicted the pretrial order without a valid basis to do so under M. R. Civ. P. 16. It emphasizes the parties’ joint contention that Fort Peck was entitled to a volume reflecting its actual historical beneficial use plus a volume for reasonably anticipated future needs, the agreed fact that Fort Peck’s historical beneficial use was 223 AFY, and the State’s contention that Fort Peck had abandoned the portion of its claim that exceeded its historical beneficial use and anticipated future needs. Fort Peck offers, "[s]tated differently, the only issue at trial was how much additional water, over and above the 223 AFY volume, as agreed by the parties, is necessary for Fort Peck’s reasonably anticipated future needs." Fort Peck argues the Water Court also erred by basing the volume determination of 171 AFY on the town’s current use, instead of actual historical use, in addition to its anticipated future use, as stated in the pretrial order. As relief, Fort Peck asks that we simply order the volume of its claim to be 223 AFY based upon the measure of the town’s historical use, and call it a day. Fort Peck’s argument is well-articulated, but there are additional governing principles at work here that persuade us to reject it.
¶12 Under M. R. Civ. P. 16(d), the pretrial order "controls the course of the action unless the court modifies it."4 See also Byrum v. Andren , 2007 MT 107, ¶ 39, 337 Mont. 167, 159 P.3d 1062 (). Under Rule 16(e), the court "may modify the order issued after a final pretrial conference only to prevent manifest injustice." Consequently, "parties may not assert issues or other matters which were not included in the pretrial order." Travelers Indem. Co. v. Andersen , 1999 MT 201, ¶ 34, 295 Mont. 438, 983 P.2d 999. Weimar v. Lyons , 2007 MT 182, ¶ 20, 338 Mont. 242, 164 P.3d 922 (internal quotations and citations omitted). However, we have also held that "a district court possesses wide discretion in deciding whether to allow a party to raise a factual issue or legal theory not explicitly raised in the pretrial order, but the court must be mindful not to prejudice the parties[,]" Byrum , ¶ 39, and that "pretrial orders should be liberally construed to permit any issues at trial that are embraced within [their] language." Weimer , ¶ 20; see also M. R. Civ. P. 15(b)(2) (...
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