Fellows v. Giese v. Saylor

March 1 2016

DA 15-0392
Case Number: DA 15-0392

IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 45

CHARLES E. FELLOWS, an individual,

Plaintiff and Appellee,

MONTE GIESE, STEVE KELLY and
WILLIAM REICHELT,

Plaintiffs-Intervenors and Appellees,

v.

PATRICK SAYLOR, an individual; FARMERS
COOPERATIVE CANAL COMPANY, ELDORADO
COOPERATIVE CANAL COMPANY, TETON
COOPERATIVE CANAL COMPANY; TETON
COOPERATIVE RESERVOIR COMPANY; JOHN D.
PEBBLES, an individual, WILLIAM S. PEEBLES,
an individual; OTTIS BRYAN, an individual;
and SYLVIA BRYAN, an individual,

Defendants and Appellants,

The Office of Water Commissioner for Perry
v. Beattie Decree Case No. 371; TETON
COOPERATIVE RESERVOIR COMPANY,

Defendants.

APPEAL FROM: Water Court of the State of Montana,
Cause No. WC 2015-01, Honorable Douglas Ritter, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Michael J.L. Cusick, Abigail R. Brown, Moore, O’Connell & Refling, PC,
Bozeman, Montana
 For Appellees:

Peter G. Scott, Gough, Shanahan, Johnson & Waterman, Bozeman,
Montana (for Charles E. Fellows)

Stephen R. Brown, Garlington, Lohn & Robinson, PLLP Missoula,
Montana (for Intervenors)

Submitted on Briefs: December 30, 2015

Decided: March 1, 2016

Filed:

__________________________________________
Clerk

2
Justice Beth Baker delivered the Opinion of the Court.

¶1 Appellants1 appeal the order of the Water Court denying their motion to alter or

amend its final order on certification that tabulated the water rights necessary to address

Charles Fellows’s underlying complaint in the Ninth Judicial District Court, Teton

County. This is the second time this matter has been before this Court on appeal.

Fellows v. Office of Water Comm’r, 2012 MT 169, 365 Mont. 540, 285 P.3d 448

(hereafter Fellows I). The Perry Defendants raise several issues on appeal that we restate

as follows:

1. Whether the water right claims in controversy were properly determined
following this Court’s remand in Fellows I.

2. Whether the District Court erred in granting Fellows’s motion for substitution.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Because the background facts are delineated in Fellows I, we restate the facts only

briefly.

¶4 Montana’s Constitution requires the Legislature to “provide for the administration,

control, and regulation of water rights” and to “establish a system of centralized records”

for those rights. Mont. Const. art. IX, § 3(4). In implementing this constitutional

mandate, the Legislature created the Water Court, which has jurisdiction over “all matters

1
Appellants are Patrick Saylor, Farmers Cooperative Canal Company, Eldorado Cooperative
Canal Company, Teton Cooperative Canal Company, John D. Peebles, William S. Peebles, Ottis
Bryan, and Sylvia Bryan. Appellants refer to themselves collectively as the Perry Defendants
and we will do the same.
3
relating to the determination of existing water rights within the boundaries of the state of

Montana.” Section 3-7-224(2), MCA. The law provides district courts with jurisdiction

to enforce the provisions of water rights decrees and to supervise the distribution of

adjudicated water. Tit. 3, Ch. 7, Pt. 2, MCA; Tit. 85, Ch. 2, MCA. The Water Court is in

the process of adjudicating the water rights of all appropriators in Basin 41O, which

includes the Teton River and Spring Creek—the sources of water at issue here. Although

the Water Court has issued a temporary preliminary decree for Basin 41O, it has not yet

issued a final decree. Therefore, the adjudication process in Basin 41O is still ongoing.

¶5 Fellows owns several water rights in Spring Creek near Choteau, Montana. His

rights were decreed in Sands Cattle & Land Co. v. Jackson, Case 727 (Mont. 10th

Judicial Dist. Ct., May 31, 1892). Fellows claims that Spring Creek is recharged by

water seeping through a subsurface aquifer from a stretch of the Teton River known as

the Springhill Reach. In other words, Fellows asserts that Spring Creek and the Teton

River are hydrologically connected. Fellows therefore contends that maintaining the flow

of Spring Creek is dependent upon maintaining water in the Springhill Reach.

¶6 The Perry Defendants own various water rights in the upper Teton River

northwest of Choteau. Their rights were decreed in Perry v. Beattie, Case 371 (Mont.

11th Judicial Dist. Ct., March 28, 1908). The Ninth Judicial District Court, Teton

County, now supervises the distribution of water pursuant to both Perry and Sands. The

water rights decreed in Perry are administered by a water commissioner pursuant to

§ 85-5-101, MCA. In administering water rights under Perry, the Water Commissioner

4
has diverted water out of the Teton River into the Bateman Ditch above the Springhill

Reach as a water management tool. Fellows I, ¶ 4; Eldorado Co-Op Canal Co. v. Lower

Teton Joint Objectors, 2014 MT 272, ¶ 32, 376 Mont. 420, 337 P.3d 74 (hereafter

Eldorado). Fellows alleges that water diversion through the Bateman Ditch diminishes

the flow of water through the Springhill Reach and adversely affects the water available

to satisfy his Spring Creek rights.

¶7 In February 2011, Fellows filed a complaint challenging the Water

Commissioner’s administration of water under the Perry decree. Specifically, he

challenged the Water Commissioner’s authority to divert water out of the Teton River by

means of the Bateman Ditch. The District Court ultimately dismissed Fellows’s

complaint under M. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could

be granted, and Fellows appealed.

¶8 In Fellows I, we reversed the District Court’s dismissal and remanded for further

proceedings. Fellows I, ¶ 22. We agreed with the District Court that Fellows could not

seek relief from the action of the Perry Water Commissioner under § 85-5-301, MCA,

because he did “not derive his Spring Creek water right from the Perry decree . . . .”

Fellows I, ¶ 16. We concluded, however, that Fellows could seek declaratory relief and

that his allegations were sufficient to state a claim under M. R. Civ. P. 12(b)(6).

Fellows I, ¶ 19. We concluded further that if Fellows could “prove hydrological

connectivity between Spring Creek and the Teton River, then the next step should be

certification to the chief water judge under § 85-2-406(2)(b), MCA.” Fellows I, ¶ 21.

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¶9 On remand, Fellows filed a motion for substitution of district court judge, which

Judge Olson granted. After Judge Oldenburg assumed jurisdiction, Monte Giese,

William Reichelt, and Steve Kelly (Intervenors) intervened.2 Fellows then moved for

summary judgment on the issue of hydrological connectivity. Following consideration of

the parties’ expert depositions, the District Court granted Fellows’s motion, concluding

that Spring Creek and the Teton River are hydrologically connected. The court found it

unnecessary “at this stage of the proceeding” to address the scope, extent, or timing of the

connectivity.

¶10 Fellows then requested the court to certify a question to the Water Court. The

Perry Defendants objected to the request; the District Court held, however, that the

“applicable and appropriate scope of the determination of the rights involved in the

controversy is best left to the processes of the Water Court.” Accordingly, the District

Court certified the following issue for determination by the Water Court:

Upon remand from the Montana Supreme Court in Cause No. 2012 MT
169, pursuant to this Court’s determination of the hydrological connectivity
between the Teton River and Spring Creek, and pursuant to MCA Section
85-2-406(2)(b), the Ninth Judicial District Court certifies this matter to the
Montana Water Court for determination of the existing rights involved in
this controversy, pursuant to Chapter 2 of Title 85, MCA. Upon its
determination, the Water Court shall issue to the District Court a list or
tabulation of rights, priorities, and approved points of diversion in a form
determined appropriate by the Water Judge.

The Water Court issued its final order on certification on March 13, 2015.

2
Intervenors claim water rights from the Teton River and were parties in related cases before this
Court. Eldorado, ¶ 1; Giese v. Blixrud, 2012 MT 170, ¶ 1, 365 Mont. 548, 285 P.3d 458. Both
Eldorado and Giese concerned the Water Commissioner’s diversion of water from the Teton
River into the Bateman Ditch. Eldorado, ¶ 7; Giese, ¶ 6.
6
¶11 In its final order, the Water Court concluded that the purpose of certification under

§ 85-2-406(2)(b), MCA, is “to provide sufficient information to enable the District Court

to resolve the immediate controversy.” Because it concluded that the underlying

controversy stemmed from the Water Commissioner’s use of the Bateman Ditch as a

water management tool, the Water Court determined that the scope of the controversy

should be defined by Fellows’s water right claims and by the water right claims that

historically utilized the Bateman Ditch. Consequently, the Water Court concluded that

three Patrick Saylor Teton River water right claims, a Choteau Cattle Company Teton

River water right claim, and Fellows’s Spring Creek water right claims “constitute the

claims properly before the Water Court in this certification.” By the time of its

certification order, all of the Saylor, Choteau Cattle Company, and Fellows water right

claims had been adjudicated in the temporary preliminary decree. The court therefore

concluded that further proceedings were not required in answering the certification issue.

The Water Court tabulated the claims at issue and ordered that the matter be closed and

returned to the District Court.

¶12 The Perry Defendants then filed a M. R. Civ. P. 59(e) motion to alter or amend the

Water Court’s judgment. The motion requested that the Water Court withdraw its final

order and return the matter to the District Court “to properly identify the water rights

involved in the controversy, as defined by the allegations of Fellows’ First Amended

Complaint.” The Water Court denied the motion. The Perry Defendants appeal.

7
 STANDARDS OF REVIEW

¶13 We review a trial court’s denial of a M. R. Civ. P. 59(e) motion for abuse of

discretion. In re Marriage of Anderson, 2013 MT 238, ¶ 13, 371 Mont. 321, 307 P.3d

313. A trial court abuses its discretion when it acts arbitrarily, without employment of

conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice.

RN & DB, LLC v. Stewart, 2015 MT 327, ¶ 14, 381 Mont. 429, 362 P.3d 61. We review

a trial court’s interpretation of a statute de novo. City of Livingston v. Mont. Pub. Emps.

Ass’n ex rel. Tubaugh, 2014 MT 314, ¶ 11, 377 Mont. 184, 339 P.3d 41. Whether a court

has jurisdiction over the parties or the subject matter is a legal conclusion that we review

de novo. Pinnow v. Mont. State Fund, 2007 MT 332, ¶ 13, 340 Mont. 217, 172 P.3d

1273.

DISCUSSION

¶14 1. Whether the water right claims in controversy were properly determined
following this Court’s remand in Fellows I.

¶15 In its order denying the Perry Defendants’ motion to alter or amend its judgment,

the Water Court first concluded that it had jurisdiction to determine the scope of the

certification question because the Water Court’s role under § 85-2-406(2)(b), MCA, “is

to provide sufficient information to the District Court to facilitate resolution of the

underlying water distribution controversy.” The court next concluded that “Fellows has

decreed rights from Spring Creek[;] he is not claiming the Teton River as the source for

these water rights.” The court reiterated that “Fellows is seeking the ability to participate

in any District Court proceedings on use of the Bateman Ditch as a water conservation
8
measure.” The Water Court therefore concluded that it correctly identified the scope of

the controversy and appropriately tabulated “the rights that historically used the Bateman

Ditch and the Spring Creek claims Fellows is seeking to protect.”

¶16 On appeal, the Perry Defendants raise several points of error in asserting that the

Water Court abused its discretion in denying their M. R. Civ. P. 59(e) motion, including:

that the Water Court did not follow the law of the case; that certification under

§ 85-2-406(2)(b), MCA, was inappropriate; and that the Water Court failed to define the

scope of the controversy, improperly determined the purpose of the tabulation, and

inadequately tabulated the rights in controversy. We address each argument in turn.

¶17 First, the Perry Defendants contend that the law of the case established in

Fellows I was not followed because Fellows’s rights were not properly certified for

determination with a modified Teton River source. They assert that in Fellows I, we

implicitly contemplated that the purpose of certification “was for Fellows’ rights to be

determined as Teton rights vis-à-vis the Perry Decree users.” They therefore contend

that the Water Court abused its discretion in determining that Spring Creek is the source

of Fellows’s water right claims in controversy.

¶18 We are not persuaded by the Perry Defendants’ contention that we implicitly

concluded in Fellows I that Fellows’s rights must be determined with a modified Teton

River source. The Perry Defendants rely on the well-established rule that when we state

in an opinion “a principle or rule of law necessary to the decision, such pronouncement

becomes the law of the case, and must be adhered to throughout its subsequent

9
progress . . . .” Fiscus v. Beartooth Elec. Coop., 180 Mont. 434, 437, 591 P.2d 196, 197

(1979) (citation and internal quotations omitted). In Fellows I, we stated multiple times

explicitly that Spring Creek is the source of Fellows’s water right claims involved in the

controversy. E.g., Fellows I, ¶¶ 2, 16, 21. We did not hold that the Water Court on

certification must determine Fellows’s rights as Teton River rights. Accordingly, we

conclude that the Water Court adhered to the law of the case and therefore did not abuse

its discretion in concluding that the source of Fellows’s rights in controversy is Spring

Creek, not the Teton River.

¶19 The Perry Defendants next argue that certification under § 85-2-406(2)(b), MCA,

was improper based on a “holistic reading” of the statute. They contend that certification

is appropriate under § 85-2-406(2)(b), MCA, only if the rights involved in the

controversy have not yet been determined. Because the rights in controversy here are

“determined claims,” the Perry Defendants assert that the Water Court could perform

only an enforcement tabulation pursuant to § 85-2-406(4), MCA. They next argue that

the Water Court lacked jurisdiction under § 85-2-406(2)(b), MCA, to determine which

parties and water rights were involved in the underlying water distribution controversy.

The statute, they contend, requires that the District Court make those determinations prior

to certification. Without a determination by the District Court as to which parties and

which water rights are involved in the controversy, the Perry Defendants claim that

certification under § 85-2-406(2)(b), MCA, was inappropriate.

10
¶20 In Fellows I, we pronounced that if Fellows could establish “hydrological

connectivity between Spring Creek and the Teton River, then the next step should be

certification to the chief water judge under § 85-2-406(2)(b), MCA.” Fellows I, ¶ 21.

Upon remand, the District Court established hydrological connectivity on summary

judgment and then followed this Court’s direction by certifying a question to the Water

Court pursuant to § 85-2-406(2)(b), MCA.

¶21 The role of the judge in construing a statute “is simply to ascertain and declare

what is in terms or in substance contained therein, not to insert what has been omitted or

to omit what has been inserted.” Section 1-2-101, MCA. It is a well-established rule that

“[w]hen construing a statute, it must be read as a whole, and its terms should not be

isolated from the context in which they were used by the Legislature.” State v. Price,

2002 MT 229, ¶ 47, 311 Mont. 439, 57 P.3d 42 (citing State v. Nye, 283 Mont. 505, 510,

943 P.2d 96, 99 (1997)). It also is well-established that “statutes should be construed

according to the plain meaning of the language used therein.” Price, ¶ 47 (citing Nye,

283 Mont. at 510, 943 P.2d at 99). Moreover, we have concluded, “Section

85-2-406(2)(b), MCA, should not be narrowly interpreted so as to frustrate solutions to

water distribution controversies, but rather should be applied so as to allow for the

expeditious resolution of these controversies.” Giese, ¶ 16.

¶22 Section 85-2-406(2)(b), MCA, initially requires that a “water distribution

controversy” exist before a party may petition a district court for certification. As the

Perry Defendants acknowledge, this matter “is undeniably a water distribution

11
controversy”; therefore, the first requirement for certification under § 85-2-406(2)(b),

MCA, is met. Giese, ¶ 11. The statute further provides that, for certification to be

proper, the water distribution controversy must “arise[ ] upon a source of water in which

not all existing rights have been conclusively determined according to part 2 of this

chapter . . . .” Section 85-2-406(2)(b), MCA. We determined in Giese that certification

under § 85-2-406(2)(b), MCA, was appropriate based in part on the fact “that not all

existing rights on the Teton River have been conclusively determined.” Giese, ¶ 15. We

conclude that the plain meaning of the language used in § 85-2-406(2)(b), MCA, is that if

all existing rights on the source of water in controversy have not been conclusively

determined by final adjudication under the 1973 Water Use Act, then a party involved in

a water distribution controversy may petition the court for certification.

¶23 Although the rights at issue here were decreed in Perry and Sands, those rights—

along with other claimed existing water rights in Basin 41O—are subject to a temporary

preliminary decree. Teton Co-Op Canal Co. v. Teton Coop Reservoir Co., 2015 MT 344,

382 Mont. 1, ___ P.3d ___; Teton Coop. Reservoir Co. v. Farmers Coop. Canal Co.,

2015 MT 208, 380 Mont. 146, 354 P.3d 579; Eldorado; Skelton Ranch, Inc. v. Pondera

Cnty. Canal & Reservoir Co., 2014 MT 167, 375 Mont. 327, 328 P.3d 644; Heavirland v.

State, 2013 MT 313, 372 Mont. 300, 311 P.3d 813. Water right claims in Basin 41O are

still working their way through the adjudication process. See § 85-2-231(1), MCA

(providing that the Water Court “may issue a temporary preliminary decree prior to the

issuance of a preliminary decree if the temporary preliminary decree is necessary for the

12
orderly adjudication or administration of water rights”). As such, all the existing rights in

the sources of water at issue here have not been conclusively determined pursuant to Title

85, chapter 2, part 2, MCA. See § 85-2-227(1), MCA (providing in pertinent part, “For

purposes of administering water rights, the provisions of a temporary preliminary decree

or a preliminary decree, as modified after objection and hearings, supersede a claim of

existing right until a final decree is issued.” (emphasis added)). Fellows is not seeking

enforcement of a temporary preliminary decree under § 85-2-406(4), MCA, but

determination of his rights and relative priorities in order to challenge delivery of water

through the Bateman Ditch. Accordingly, Fellows’s petition for certification was proper

pursuant to § 85-2-406(2)(b), MCA.

¶24 The Perry Defendants next assert that the plain language of § 85-2-406(2)(b),

MCA, permits only district courts to identify which parties and water rights are involved

in the underlying water distribution controversy. Section 85-2-406(2)(b), MCA,

provides, in relevant part, “If a certification request is made, the district court shall certify

to the chief water judge the determination of the existing rights that are involved in the

controversy according to part 2 of this chapter.” We conclude that the plain language of

the statute explicitly confers on the Water Court, when a district court requests, the

authority to “determin[e] [ ] the existing rights that are involved in the controversy

according to part 2 of this chapter.” Section 85-2-406(2)(b), MCA.

¶25 The Perry Defendants’ overly narrow interpretation of the statute would “frustrate

solutions to water distribution controversies.” Giese, ¶ 16. Our construction of the terms

13
used in the statute is consistent with the context in which the terms were used by the

Legislature. Under Montana law, “the water court is vested with exclusive jurisdiction

relative to all matters relating to the determination of existing water rights within the

boundaries of the State of Montana.” Baker Ditch Co. v. District Ct., 251 Mont. 251,

255, 824 P.2d 260, 260 (1992) (emphasis added) (citing § 3-7-501, MCA; Mildenberger

v. Galbraith, 249 Mont. 161, 815 P.2d 130 (1991)). Given the Water Court’s

comprehensive oversight of the adjudication process, its jurisdiction necessarily includes

the authority to identify those parties and rights involved in a water distribution

controversy based on the adjudication process, the claims made in the affected area, and

the evidence before the Water Court. See Giese, ¶ 18 (instructing a district court “to

certify all appropriate issues to the Chief Water Judge as provided in § 85-2-406(2)(b),

MCA . . .” (emphasis added)). Accordingly, we conclude that under the plain language

and the context of the terms used in § 85-2-406(2)(b), MCA, the Water Court has

authority to determine which parties and rights are involved in a water distribution

controversy certified by a district court. Such an application of the statute will “allow for

the expeditious resolution of these controversies.” Giese, ¶ 16.

¶26 The Perry Defendants’ final contention is that the Water Court failed to define

adequately the scope of the controversy based on the parties’ pleadings. They assert that

the Water Court reframed the scope of the controversy too narrowly because “in order to

fully determine the water distribution controversy pled by Fellows, it is necessary to

determine the validity of the water right claims of [all of the named Defendants] allegedly

14
causing damage to Fellows.” The Perry Defendants allege that the underlying

controversy is broader than the Water Commissioner’s use of the Bateman Ditch because

Fellows alleged in his complaint that the named Defendants were appropriating his

“recharge water,” giving rise to a claim for damages. Because the Water Court did not

include all of the named Defendants in its order, they assert that the Water Court

provided the District Court with an incomplete tabulation of the rights in controversy.

Furthermore, they contend that the Water Court made an incorrect conclusion that the

purpose of the certification was not enforcement of rights.

¶27 In its final order, the Water Court concluded that “[t]he scope of certification

refers to the water right claims that require a review by the Water Court in order to

provide the necessary information to the District Court.” The Water Court further

determined that “[t]he point of certification is to provide sufficient information to the

District Court to facilitate resolution of the underlying water distribution controversy,”

and that “[t]he scope of the certification is typically defined by that underlying

controversy.” In determining the scope and the purpose of the certification, the court

concluded:

Fellows requested certification for a limited purpose. He seeks the right to
object if other water users ask to divert water into the Bateman Ditch as a
water saving measure. He is not questioning the elements of any specific
water right. He has not asserted the right to place a call on any specific
water right. The water right claims involved need not include all Basin
41O water rights that may benefit from use of the Bateman Ditch as a water
saving measure or all water rights that may, through their use, have an
adverse impact on the Springhill Reach or Spring Creek. Fellows is
specifically asking for the right to participate in any future proceeding on
use of the Bateman Ditch as a water saving measure, he is not seeking
15
 enforcement of all water rights and permits upgradient from his point of
diversion.

The Water Court noted that we had affirmed its prior tabulation of water right claims

associated with the Bateman Ditch in Eldorado, and concluded that the “same water right

claims identified in the [Eldorado] tabulation are at issue in this certification case.” As

such, the Water Court concluded that Saylor’s, Choteau Cattle Company’s, and Fellows’s

water right claims are the existing rights that are involved in the underlying controversy

before the District Court.

¶28 We agree with the Water Court that the purpose of certification under

§ 85-2-406(2)(b), MCA, is to provide sufficient information to the District Court to

facilitate resolution of the underlying water distribution controversy. See Giese, ¶ 16

(concluding that § 85-2-406(2)(b), MCA, “should be applied so as to allow for the

expeditious resolution of [water distribution] controversies”). We therefore agree that the

underlying water distribution controversy defines the scope of the certification. The

Water Court’s order, like any court’s judgment, “must be within the issues presented to

the court.” Nat’l Sur. Corp. v. Kruse, 121 Mont. 202, 205-06, 192 P.2d 317, 319 (1948).

Accordingly, the Water Court properly looked to Fellows’s First Amended Complaint in

determining the scope of the controversy and purpose of the certification.

¶29 A review of that complaint establishes that Fellows alleged that maintaining the

flow of Spring Creek is dependent upon “Recharge Water” seeping through a subsurface

aquifer located at the Springhill Reach. Fellows further alleged that the Water

Commissioner “altered the delivery of water in [Perry] to allow for diversion and use of
16
Recharge Water by unknown water users (‘Defendants’)” by means of the Bateman

Ditch. Fellows claimed that the Water Commissioner’s practice of diverting water

through the Bateman Ditch impaired the use of his Spring Creek rights. Fellows

therefore sought to enjoin the Water Commissioner from using the Bateman Ditch as a

water management tool and pursued relief from the practice under both private and public

nuisance as well as negligence theories.

¶30 The Perry Defendants’ assertions that the Water Court erred in defining the scope

of the controversy and determining the purpose of the certification are unpersuasive.

Based on our review of the issues presented in Fellows’s Amended Complaint, we

conclude that the Water Court properly opined that Fellows requested certification for the

limited purpose of obtaining the right to object when water was diverted through the

Bateman Ditch. His complaint specifically sought an injunction “barring the distribution,

diversion or use of Recharge Water” by means of the Bateman Ditch. Furthermore, the

Water Court correctly determined that the scope of the certification was limited to use of

the Bateman Ditch. Fellows’s complaint alleges that the groundwater aquifer located at

the Springhill Reach is the primary source of water in Spring Creek; therefore, he asserts,

the diversion of water through the Bateman Ditch impacts his Spring Creek rights. The

Water Court appropriately confined its order to the controversy before the District

Court—use of the Bateman Ditch to deliver water.

¶31 Moreover, the Water Court did not err in determining that the claims properly

before the court on certification were Saylor’s and Choteau Cattle Company’s Teton

17
River water right claims and Fellows’s Spring Creek water right claims. Upon

certification, the Water Court is tasked with determining “the existing rights that are

involved in the controversy . . . .” Section 85-2-406(2)(b), MCA (emphasis added). As

the Water Court noted, we concluded in Eldorado that it properly tabulated the “water

rights that can be diverted through the Bateman Ditch.” Eldorado, ¶ 36. Because the

scope of the instant controversy is limited to the use of the Bateman Ditch, it was

unnecessary for the Water Court to tabulate rights beyond those that historically have

used the Bateman Ditch and Fellows’s Spring Creek rights. The Water Court properly

determined the existing rights involved in the controversy.

¶32 The only purpose of the certification order is the tabulation and relative priority of

Fellows’s Spring Creek rights and the rights of those using the Bateman Ditch for

delivery of their Teton River water. It will be in the District Court—when and if Fellows

challenges use of the Bateman Ditch as a management tool—that he will need to prove

that diverting water through the ditch actually and as a matter of hydrological fact impairs

his water right. It is then the District Court’s function to “supervise the distribution of

water among all appropriators.” Section 85-2-406(1), MCA.

¶33 Although the Perry Defendants make additional arguments, we conclude that the

contentions discussed above are dispositive. Based on the foregoing analysis, we

conclude the following: that the Water Court correctly determined that Spring Creek is

the source of Fellows’s rights involved in the controversy; that certification pursuant to

§ 85-2-406(2)(b), MCA, was proper; and that the Water Court did not err in determining

18
the scope of the controversy, defining the purpose of the certification, or tabulating the

applicable rights involved in the controversy. Accordingly, we hold that the Water Court

did not abuse its discretion in denying the Perry Defendants’ motion to amend and that

the water right claims in controversy were properly determined following this Court’s

remand in Fellows I.

¶34 2. Whether the District Court erred in granting Fellows’s motion for substitution.

¶35 Section 3-1-804, MCA, provides for the substitution of district court judges; it

provides, however, that there is no right of substitution of “a judge supervising the

distribution of water under 85-2-406, including supervising water commissioners under

Title 85, chapter 5, part 1.” Section 3-1-804, MCA. The Perry Defendants assert that the

substitution of Judge Olson was improper because this case is “undeniably a water

distribution controversy . . . .” The Perry Defendants further contend that the issue is

properly before this Court on appeal. They rely on M. R. App. P. 6(1), which provides

that this Court may review “all previous orders and rulings excepted or objected to which

led to and resulted in the judgment.” Finally, they argue that the appeal is timely

pursuant to M. R. App. P. 6(3)(k).

¶36 Under M. R. App. P. 6(3)(k), an aggrieved party in a civil case may appeal “[f]rom

an order granting or denying a motion for substitution of judge” so long as “the order is

the court’s final decision on the referenced matter.” In civil cases, M. R. App. P.

4(5)(a)(i) requires that “the notice of appeal shall be filed with the clerk of the supreme

court within 30 days from the date of entry of the judgment or order from which the

19
appeal is taken.” M. R. App. P. 4(2)(c) provides, “Except where the supreme court grants

an out-of-time appeal under section (6) of this rule, the timely filing of a notice of appeal

or cross-appeal is required in order to invoke the appellate jurisdiction of the supreme

court.” We conclude that an order pertaining to a motion for substitution of judge under

M. R. App. P. 6(3)(k) must satisfy M. R. App. P. 4’s requirements for being timely.

Substitution of a presiding judge is a right that is lost if not exercised early in the case.

Section 3-1-804(1)(a), MCA (providing that a motion for substitution in a civil action

must be filed within thirty days after either “the first summons is served or an adverse

party has appeared[,] . . . [or] after service has been completed in compliance with M. R.

Civ. P. 4,” depending on which party files the motion).

¶37 It would defeat the purpose of the rule to allow a party to appeal a substitution

order only after the case has been finally decided. Here, the order granting Fellows’s

motion for substitution of judge was entered in August 2013. The parties thereafter

engaged in discovery and summary judgment proceedings in the District Court. That

court certified the case to the Water Court, which conferred with the parties, reviewed the

District Court record, issued its opinion and an order on certification, and then considered

and denied a motion to alter or amend its order. The process consumed approximately

two years. Now that the decision is made, the Perry Defendants seek to begin the process

anew because the initial substitution of Judge Olson was improper. The rules do not

support their argument. We conclude that the Perry Defendants’ appeal of the

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substitution order is untimely because the notice of appeal from the order was not filed

within 30 days.

¶38 Upon remand, however, the case will return to Judge Olson as the judge

responsible under § 85-2-406(1), MCA, for supervising both the distribution of water

under Perry and Sands and the Water Commissioners appointed to administer the water

under both decrees.

CONCLUSION

¶39 We affirm the Water Court’s order denying the Perry Defendants’ M. R. Civ. P.

59(e) motion and remand to the Ninth Judicial District Court, the Honorable Robert

Olson presiding, for further proceedings.

/S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA

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