Yellowstone River, Matter of
| Citation | 832 P.2d 1210,49 St.Rep. 413,253 Mont. 167 |
| Decision Date | 07 July 1992 |
| Docket Number | No. 91-140,91-140 |
| Parties | In the Matter of the Adjudication of the Existing Rights to the Use of All the Water, Both Surface and Underground, Within the YELLOWSTONE RIVER Above and Including Bridger Creek in Gallatin, Park, Sweet Grass, and Stillwater Counties, Montana. |
| Court | United States State Supreme Court of Montana |
R. Mark Josephson (argued), Josephson & Fredricks, Big Timber, for appellant.
Marc Racicot, Atty. Gen., George Schunk, Asst., (argued) Donald MacIntyre, Dept. of Natural Resources, Robert N. Lane, Dept. Fish, Wildlife & Parks, Helena, Blake Watson (argued), Barry M. Hartman, Robert L. Klarquist, John R. Hill, Jr., Patrick Barry, U.S. Dept. of Justice, Washington, D.C., Doris S. Poppler, U.S. Atty., Billings, Jody Miller, Office of Gen. Counsel, Dept. of Agriculture, Missoula, John C. Chaffin, Office of Field Sol., Dept. of the Interior, Billings, Daniel F. Decker, Confederated Salish & Kootenai Tribes, Pablo, David Pengelly, Knight, Maclay & Maser, Missoula, Ann E. Wilcox, Billings, John W. Duncan, Joplin, for respondent.
Bruce R. Toole (argued) and Janice L. Rehberg (argued), Crowley Law Firm, Billings, for amicus curiae Tiegen.
Michael E. Zimmerman (argued) and Susan J. Callaghan, Montana Power Co., Butte, W.G. Gilbert, Jr. and W.G. Gilbert, III, Dillon, for amicus curiae MacKenzie.
John North and Lon J. Maxwell, Dept. of State Lands, Helena, for amicus curiae.
This is an appeal from an order of the Water Court forfeiting appellants' water rights for failing to timely file a claim pursuant to § 85-2-226, MCA. The Water Court upheld the constitutionality of § 85-2-226, MCA, finding that its application works as a forfeiture and not an abandonment. The appellants, whose water rights were dismissed, request this Court to reverse the Water Court and declare § 85-2-226, MCA, unconstitutional. We affirm.
We will review the following issues.
III. Does forfeiture of water rights under § 85-2-226, MCA, constitute a taking without just compensation in violation of Article II, Section 29, of the Montana Constitution and the Fifth and Fourteenth Amendments of the United States Constitution?
IV. Does § 85-2-226, MCA, violate the equal protection clauses of Article II, Section 4, of the Montana Constitution and the Fourteenth Amendment of the United States Constitution?
V. Does § 85-2-226, MCA, constitute an impairment of contracts in violation of Article II, Section 31, of the Montana Constitution and Article I, Section 10, of the United States Constitution?
This action was initiated sua sponte through order of the Chief Water Judge, the late Judge W.W. Lessley, on August 3, 1988. The law governing Montana's water rights adjudication required pre-1973 water claims to be filed with the Department of Natural Resources by 5:00 p.m. on April 30, 1982, or be conclusively presumed abandoned. Sections 85-2-221 and 226, MCA. The Water Court consolidated 109 late claims filed in Yellowstone River Basin above and including Bridger Creek (Basin 43B). Opportunity was provided each of the late claimants in Basin 43B, as well as other similarly situated late claimants from around the state to participate in the proceedings.
As could be expected, numerous interested parties responded. Briefs were filed, oral arguments presented and proposed findings of fact and conclusions of law accepted by the Water Court. On July 17 1989, the Water Court issued an order that as paraphrased below included:
(1) Section 85-2-226, MCA, acts as a forfeiture statute that results in the involuntary loss of a water right caused by the failure of an owner to timely file his claim as required by statute.
(2) By order of the Montana Supreme Court, December 7, 1981, to be timely received, a water claim must be actually received and filed with the Department of Natural Resources by 5:00 P.M. on April 30, 1982, claims received thereafter are forfeited and declared null and void.
(3) Section 85-2-226, MCA, survives constitutional challenge on due process, equal protection, and impairment-of-contracts grounds.
(4) Section 85-2-226, MCA, does not conflict with Article IX, Section 3(1) of the Montana Constitution.
(5) Provisions were made for evidentiary hearings providing the Water Court opportunity to make individual determinations of whether specific claims were timely filed.
On December 17, 1990, final judgment was entered pursuant to Rule 54(b), M.R.Civ.P., finding the late filed claims of Basin 43B to be conclusively abandoned under § 85-2-226, MCA. From this judgment an appeal was filed by Kenneth D. and Donna L. Laubach, Robert B. and Connie Malcolm, the Boulder River Ranch, Inc., Carmine B. and Francine S. Rizzotto and the Jumping Rainbow Ranch, all late claimants in Basin 43B (hereinafter collectively referred to as appellants).
Each of the appellants exercised their right to an evidentiary hearing and alleged different factual circumstances for having filed late. Evidence was presented by each appellant of a historical and continued use of water for varied beneficial purposes. All appellants contend they in no way have 'abandoned' their rights. The Water Court determined that each had filed late and under § 85-2-226, MCA, had forfeited their claim.
Does Article IX, Section 3, of the Montana Constitution protect pre-1973 water rights from legislative forfeiture?
Article IX, Section 3, of the Montana Constitution provides in its entirety:
Water rights. (1) All existing rights to the use of any waters for any useful or beneficial purpose are hereby recognized and confirmed.
(2) The use of all water that is now or may hereafter be appropriated for sale, rent, distribution, or other beneficial use, the right of way over the lands of others for all ditches, drains, flumes, canals, and aqueducts necessarily used in connection therewith, and the sites for reservoirs necessary for collecting and storing water shall be held to be a public use.
(3) All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.
(4) The legislature shall provide for the administration, control, and regulation of water rights and shall establish a system of centralized records, in addition to the present system of local records.
The appellants contend that subsection (1) provides a guarantee of existing water rights and any statutory scheme that obviates that guarantee is against public policy. The Montana Constitution is alleged to extend to the legislature the power to affirm and preserve existing water rights but not the power to forfeit or extinguish them.
We have held that "[to the extent of beneficial use] the 1972 constitutional recognition of water rights is effective and will be sustained". McDonald v. State (1986), 220 Mont. 519, 722 P.2d 598. However, we have also held that Article IX, Section 3(1):
prevents the State from affecting rights vested at the time the Constitution was adopted other than through the exercise of Constitutionally provided powers such as eminent domain, Mont. Const. Art. II, Sec. 17, or the general police power, and without affording due process of law, Mont. Const. Art. I, sec. 17.
Department of State Lands v. Pettibone (1985), 216 Mont. 361, 702 P.2d 948. Pettibone recognizes that the State's ability to affect existing and recognized water rights survives the adoption of Article IX, Section 3(1), of the Montana Constitution.
The United States Supreme Court held:
Even with respect to vested property rights, a legislature generally has the power ... to condition their continued retention on performance of certain affirmative duties. As long as the ... duty imposed is a reasonable restriction designed to further legitimate legislative objectives, the legislature acts within its powers in imposing such ... duties. (citations omitted) United States v. Locke (1985), 471 U.S. 84, 105 S.Ct. 1785, 85 L.Ed.2d 64.
We conclude that Article IX, Section 3(1), of the Montana Constitution does not establish that pre-1973 water rights are immune from sovereign powers. These rights, like other property rights, are protected against unreasonable state action; however, they have not been granted indefeasible status. Furthermore, we conclude that consistent with Article IX, Section 3(1), of the Montana Constitution, the State Legislature may enact constitutionally sound regulations including the requirement for property owners to take affirmative actions to maintain their water rights.
Does § 85-2-226, MCA, violate the due process clauses of Article II, Section 17, of the Montana Constitution and the Fourteenth Amendment of the United States Constitution?
Section 85-2-226, MCA, states in full:
Abandonment by failure to file claim. The failure to file a claim of an existing right as required by 85-2-221 establishes a conclusive presumption of abandonment of that right.
The appellants contend the conclusive presumption of § 85-2-226, MCA, violates due process because it fails to provide an opportunity to rebut the presumption of abandonment. The appellants rely on the United States Supreme Court ruling that the Due Process Clause forbids denying an individual a right on the basis of an irrebuttable presumption when that presumption is not necessarily or universally true in fact. Vlandis v. Kline (1973), 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63.
The appellants note that abandonment, as historically defined by this Court, has always at least required a showing of...
To continue reading
Request your trial
-
Muskin v. State Dep't of Assessments
... ... particular, and ground rent owners in general, of the value of their property? We hold as a matter of law that (1) the extinguishment and transfer provisions of Chapter 290, the Ground Rent Registry ... Sommerdyke Estate, 458 Mich. 642, 581 N.W.2d 670, 67475 (1998); In re Yellowstone River, 253 Mont. 167, 832 P.2d 1210, 1217 (1992); Ga. Marble Co. v. Whitlock, 260 Ga. 350, 392 ... ...
-
In re Barthelmess Ranch Corp.
... ... In the Matter of the Adjudication of Existing Rights (Bean Lake III) , 2002 MT 216, 10, 311 Mont. 327, 55 P.3d ... Hutchins, at 263-64. See also In re Powder River Drainage Area , 216 Mont. 361, 702 P.2d 948 (1985) (validating stockwater rights appropriated by ... at 353, 3 P.2d at 290. See also Yellowstone Valley Co. v. Assoc. Mtg. Investors , 88 Mont. 73, 81, 290 P. 255, 25758 (1930) ; Lensing v. D ... ...
-
Single Moms, Inc. v. Montana Power Co.
... ... protects against "arbitrary and discriminate state action") (emphasis added); In re: Yellowstone River, 253 Mont. 167, 832 P.2d 1210, 1214 (1992) (holding that the Montana Constitution protects ... ...
-
Egan Slough Cmty. v. Flathead Cnty. Bd. of Cnty. Comm'rs
... ... "Property interests themselves are not defined by the Takings Clause, or for that matter by Article II, Section 29 ; [r]ather, they are created and their dimensions are defined by existing ... See In re Adjudication of Water Rights within Yellowstone River , 253 Mont. 167, 180-82, 832 P.2d 1210, 1218-19 (1992). The nature of the property right in ... ...
-
Chapter 2 RESOURCE USE AND THE EMERGING LAW OF "TAKINGS": A REALISTIC APPRAISAL
...v. Department of Ecology, 596 P.2d 285 (Wash. 1979). [94] 942 F.2d 668 (9th Cir. 1991). [95] See, e.g., Matter of Yellowstone River, 832 P.2d 1210 (Mont. 1992); Department of Ecology v. Adsit, 694 P.2d 1065, 1069-70 (Wash. 1985); see also Texaco, Inc. v. Short, 454 U.S. 516 (1982) (upholdin......