IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 91-386
BAKER DITCH COMPANY,
Petitioner,
) O P I N I O N
-V- ) AND
1 O R D E R
THE DISTRICT COURT OF THE EIGHTEENTH
JUDICIAL DISTRICT OF THE STATE OF
MONTANA, IN AND FOR THE COUNTY OF
GALLATIN, THE HONORABLE THOMAS A.
OLSON, and THE HONORABLE FRANK M.
DAVIS, Presiding Judges,
&IN- 9 4992
Respondents. s2 3 . /
rnrl z
CLERKOFSUPREWIEC~~~~
STATE OF MONTANA
The original opinion and order in this case was dated November
7, 1991, and filed with the Clerk of the Supreme Court on that
date. We herewith clarify that original opinion and order. Our
original opinion and order in this cause dated November 7, 1991 is
hereby withdrawn.
This is an original proceeding on application for writ of
supervisory control. The petitioner has asked this Court to
exercise its supervisory control and to direct the District Court
of the Eighteenth Judicial District and its Water Commissioner to
distribute the waters of the West Gallatin River in accordance with
the laws of the State of Montana and more particularly in
accordance with Cause No. 3850, W.D. Bell v. F.K. Armstrong of the
Ninth Judicial District in and for the County of Gallatin, which
adjudicated the water rights of the petitioner and other water
rights in the West Gallatin River.
This Court accepts supervisory control in order to promote
judicial economy and eliminate needless litigation, State ex rel.
First Bank v. Dist. Court (1989), 240 Mont. 77, 782 P.2d 1260;
State ex rel. Fitzgerald v. Dist. Court (1985), 217 Mont. 106, 114,
703 P.2d 148; and to resolve procedural entanglements, State ex
rel. Leavitt v. Dist. Court (l977), 172 Mont. 12, 560 P.2d 517; and
Fitzaerald, 217 Mont. at 114
Water rights on the West Gallatin River were adjudicated in
Cause No. 3850, W.D. Bell v. F.K. Armstrong, in the then Ninth
Judicial District of the State of Montana in and for the County of
Gallatin by decree effective October 7, 1909. The water rights of
the petitioner were adjudicated therein as well as rights of other
users on the West Gallatin River. Water commissioners have been
appointed by the Gallatin County District Court to administer such
decree. In July 1990, a number of water users on the river
submitted a petition for appointment of a water commissioner for
the enforcement of the above described decree. The petition was
filed in said Cause No. 3850, in accordance of Chapter 5, Title 81
of the Montana Code Annotated 1989. This was done in July 1990,
and on July 6, 1990, Judge Thomas A. Olson issued an order for
temporary appointment of a water commissioner. In that order the
court stated as follows:
The court being advised that the West Gallatin River
is dropping dramatically due to the on-set of hot
weather, and recognizing that the water users will soon
present a petition for the appointment of a water
commissioner, and the court wishing to avoid a de-
watering of the river as has happened in the past,
NOW THEREFORE the court hereby appoints Les Aaberg
as temporary water commissioner for the West Gallatin
River effective immediately.
A formal order appointing the Water Commissioner was signed on the
same date. The Water Commissioner was appointed until further
order of the court. In the formal order appointing the Water
Commissioner it was stated as follows:
IT IS ORDERED that Les Aaberg be and he is hereby
appointed Water Commissioner, who shall have the
authority to measure and distribute to the parties
entitled thereto under such decree (referring to the W.A.
Bell v. F.K. Armstrong decree) of the waters of West
Gallatin, and to which they are entitled according to
their priority as established by such decree for the
season of 1990.
On July 17, 1990, the Water Commissioner so appointed closed
the headgate of the petitioner, Baker Ditch Co. (Baker Ditch),
which had decreed water rights, and the Water Commissioner refused
to allow Baker Ditch to reopen its headgate. When asked why he had
closed the headgate the Water Commissioner responded that he wished
to enforce the water rights on the river in order of their
priority.
Baker Ditch thereupon filed a dissatisfied water user's
petition in Judge Olson's court on July 30, 1990. This petition
was filed under §§ 85-2-406 and 85-5-301, MCA(1989). The
petitioner in general alleges that Baker Ditch is the owner of a
decreed water right under the decree in Cause No. 3850 above
referred to, and that essentially it had not received that water
right and that the Water Commissioner had informed Baker Ditch it
would receive no further water until claims upstream appropriated
with senior priority dates had been satisfied. The petition
further alleged that Baker Ditch could divert water without injury
to such upstream seniors. The petition further alleged that the
headgate was located almost at the end of the West Gallatin River;
that there was sufficient water to supply Baker Ditch; that such
water would come from recharging by return flows, seepage and
otherwise, into the river, even though there might be no water
available for an upstream superior appropriator to Baker Ditch; and
that such appropriation by Baker Ditch did not in any way interfere
with any senior upstream water right holders. It alleged that the
Water Commissioner's rigid adherence to the priority system
established, is contrary to the basic principles of water
administration, and contrasted dramatically with the administration
of the water rights on said river over the past 30 years. The
petition also alleged that the water can be diverted by the
petitioner without any injury to any downstream senior
appropriators, and that the Gallatin River was flowing enough to
satisfy these rights even after the appropriation made by Baker
Ditch.
Judge Olson then recused himself and the matter was
transferred to Judge Larry Moran who also sits in the Eighteenth
Judicial District. A hearing was held on August 23 and evidence
was presented by lay and expert witnesses. Evidence was presented
that the Baker Ditch diversions would not injure upstream senior
water users, and there was no evidence presented that diversion
would harm any of the water users on the West Gallatin River. The
Water Commissioner testified that the diversion by Baker Ditch
would have no adverse effect on upstream senior appropriators.
Judge Moran thereafter declined to issue a ruling which would
conflict with Judge Olson's previous instructions in the temporary
appointment of a water commissioner. Judge Moran did not feel he
4
could essentially reverse Judge Olson's instructions and orders to
the Water Commissioner of the West Gallatin River relative to the
"dewatering" of the river. Judge Moran then stated that he was not
prepared to conclude that the only beneficial use of water results
from diversion, and that would appear to be one of the main issues
inherent in the position of the petitioner. Judge Moran further
stated that what essentially is asked for here, is to take 2/3 of
the remaining water in the Gallatin River, leaving only 1000 miner
inches available for the river itself. For all practical purposes
the court would consider this a dewatering of the West Gallatin
River. If the court were to grant the petition recognizing the
continuing pattern of re-diverting recharged water, then Judge
Moran feels that perhaps would be using water which really only
belongs to the river itself, and to a specific appropriator
regardless of the appropriator's priority.
After additional remarks Judge Moran refused to assume
jurisdiction and remanded the matter back to Judge Olson. Judge
Olson then called in Judge Frank Davis, Judge of the Fifth Judicial
District. On April 18, 1991 Judge Davis issued an order which
discharged the Water Commissioner's original attorney Matt
Williams. It appeared that Mr. Williams was relieved of his duties
because he had presented proposed findings of fact and conclusions
of law which basically granted Baker Ditch the relief requested.
Judge Davis recited in his order that Mr. Williams' position was
that his proposal conformed to the decree. Judge Davis stated that
what is clear is that Williams did not fulfill his duty to advocate
the court's position. Judge Davis authorized Mr. Aaberg to employ
5
other counsel of his choice to represent the court. The court then
further ordered that if and when other counsel is obtained that
counsel should consult with counsel for Baker Ditch and agree, if
possible, as to what further evidence is deemed necessary or
otherwise formulate an agreement that the matter may be submitted
on transcripts and briefs. Should the court's new counsel
conclude, as did the Water Commissioner's original counsel, that
the petition has merit, then the two counsels should simply submit
joint proposed findings, conclusions and order.
Thereafter on July 9, 1991, Judge Olson again temporarily
appointed Les Aaberg as Water Commissioner for the West Gallatin
River. The Water Commissioner then retained the services of Goetz,
Madden and Dunn of Bozeman to represent him. Again on July 14,
1991, the Water Commissioner directed Baker Ditch to reduce its
diversion to a minimal level. On such date there was approximately
7800 miner inches of flow in the river.
There has not been a decision on Baker Ditch's petition to
receive its adjudicated right of water from the river. On July 16,
1991, the Montana Wildlife Federation filed a motion to intervene
relative to this petition. It does not appear that the Montana
Wildlife Federation has any interest in the decree of the water
rights of the West Gallatin River issued in 1909.
This case began as an administration of the distribution of
water of the West Gallatin River in accordance with the 1909 case
of W.D. Bell v. F.K. Armstrong decree in Cause No. 3850. The
statutes governing this process are for the purpose of expeditious
administration and not for the purpose of adjudication. It is a
6
relatively simple matter to administer the various water rights and
their priority. The users are entitled to what the decree gives
them and no more. By statute, 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. See 5 3-7-501, MCA (1989). See Mildenberger v.
Galbraith (1991), 48 St.Rep. 621. District courts are granted the
authority to supervise the distribution of water that has already
been adjudicated and to enforce such water decrees. See 5 85-2-
406(3), MCA. The district court is bound by the existing water
decree. In the water decree at issue there is no provision which
provides that water rights may not be enforced in order to avoid a
cessation of instream flow.
The law is clear the only matters for decision relative to the
appointment of a water commissioner and petitions in relation to
his duties, is whether or not the commissioner is distributing
water to existing water right holders pursuant to the adjudication
decree. See Quigley v. McIntosh (1940), 110 Mont. 495, 103 P.2d
1067. The only purpose of the petition of a dissatisfied water
user is to enforce rights determined by the decree.
The Water Commissioner evidently believed that he had to
enforce the decree to the extent that if a prior appropriator was
without water upstream that a subsequent appropriator downstream
could not divert such water under its water right because no water
was available to an upstream prior appropriator, even though the
river was being recharged. Such construction is groundless and
irrational when dealing with the beneficial use of water. If a
7
subsequent appropriator is using water in accordance with the
decree and such use cannot in any way be a detriment to a prior
appropriator, then the subsequent appropriator has the right to the
use of such water. See Custer v. Missoula Public Service Co.
(1931), 9 1 Mont. 136, 6 P.2d 131; and Quigley v. McIntosh (1930),
88 Mont. 103, 290 P.2d 266. The decree is to be interpreted
according to the water law of the State of Montana as provided by
statutes and appropriate court decisions. The Montana Water Users
Act provides that the determination and adjudication of water
rights including new water rights, which include minimum instream
flow water rights, if any, are vested in the jurisdiction of the
Water Court. See § 3-7-501, MCA. Mildenberqer, 48 St.Rep. at 621.
IT IS THEREFORE ORDERED that the District Court is to instruct
the Water Commissioner to distribute the water of the West Gallatin
River to the users in accordance with the decree of 1909 and this
opinion. Nothing in this order shall restrict the Water
Commissioner in requiring proper headgates, measuring devises and
works, in accordance with the decree
IT IS FURTHER ORDERED that the motion to intervene by the
Montana Wildlife Federation in the underlying petition of
dissatisfied should be denied.
DATED this of January, 1992. /
.
bhief Justice
Justice Terry N. Trieweiler would deny the petition for writ
of supervisory control and grant the petition for rehearinq.
January 9, 1992
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
W. Russell McElyea
Moore, O'Connell, Refling & Manos
P.O. Box 1288
Bozeman, MT 59771-1288
Matt Williams
Attorney at Law
506 E. Babcock
Bozeman, MT 59715
Les Aaberg
Water Commissioner
1145 So. Pinecrest
Bozeman, MT 59715
H. A. Bolinger, Esq.
P.O. Box 1047
Bozeman, MT 59715
James H. Goetz
Attorney at Law
35 No. Grand
Bozeman, MT 59715
Thomas France
Attorney at Law
240 N. Higgins
Missoula, MT 59802
Hon. Thomas A. Olson
District Judge
615 S. 16th St.
Bozeman, MT 59715
Hon. Frank M. Davis
District Judge
2 S. Pacific, CL #6
Dillon, MT 59725
Richard L. Krause, Asst. Counsel
American Farm Bureau Federation
225 Touhy Ave.
Park Ridge, I 60068
L
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 91-386
BAKER DITCH COMPANY,
Petitioner,
) O P I N I O N
-v- ) AND
) O R D E R
THE DISTRICT COURT OF THE EIGHTEENTH
JUDICIAL DISTRICT OF THE STATE OF
MONTANA, IN AND FOR THE COUNTY OF
GALLATIN, THE HONORABLE THOMAS A.
OLSON, and THE HONORABLE FRANK M.
DAVIS, Presiding Judges,
Respondents.
This is an original proceeding on application for writ of
supervisory control. The petitioner has asked this Court to
exercise its supervisory control and to direct the District Court
of the Eighteenth Judicial District and its Water Commissioner to
distribute the waters of the West Gallatin River in accordance with
the laws of the State of Montana and more particularly in
accordance with Cause No. 3850, W.D. Bell v. F.K. Armstrong of the
Ninth Judicial District in and for the County of Gallatin, which
adjudicated the water rights of the petitioner and other water
rights in the West Gallatin River.
This Court accepts supervisory control in order to promote
judicial economy and eliminate needless litigation, State ex rel.
First Bank v. Dist. Court (1989), 240 Mont. 77, 782 P.2d 1260;
State ex rel. Fitzgerald v. Dist. Court (1985), 217 Mont. 106, 114,
703 P.2d 148; and to resolve procedural entanglements, State ex
rel. Leavitt v. Dist. Court (1977), 172 Mont. 12, 560 P.2d 517; and
1
~itzqerald,217 Mont. at 114.
Water rights on the West Gallatin River were adjudicated in
Cause No. 3850, W.D. Bell v. F.K. Armstrong, in the then Ninth
Judicial District of the State of Montana in and for the County of
Gallatin by decree effective October 7, 1909. The water rights of
the petitioner were adjudicated therein as well as rights of other
users on the West Gallatin River. Water commissioners have been
appointed by the Gallatin County District Court to administer such
decree. In July 1-990, a number of water users on the river
submitted a petition for appointment of a water commissioner for
the enforcement of the above described decree. The petition was
filed in said Cause No. 3850, in accordance of Chapter 5, Title 81
of the Montana Code Annotated 1989. This was done in July 1990,
and on July 6, 1990, Judge Thomas A. Olson issued an order for
temporary appointment of a water commissioner. In that order the
court stated as follows:
The court being advised that the West Gallatin River
is dropping dramatically due to the on-set of hot
weather, and recognizing that the water users will soon
present a petition for the appointment of a water
commissioner, and the court wishing to avoid a de-
watering of the river as has happened in the past,
NOW THEREFORE the court hereby appoints Les Aaberg
as temporary water commissioner for the West Gallatin
River effective immediately.
A formal order appointing the Water Commissioner was signed on the
same date. The Water Commissioner was appointed until further
order of the court. In the formal order appointing the Water
Commissioner it was stated as follows:
IT IS ORDERED that Les Aaberg be and he is hereby
appointed Water Commissioner, who shall have the
authority to measure and distribute to the parties
entitled thereto under such decree (referring to the W.A.
Bell v. F.K. Armstrong decree) of the waters of West
Gallatin, and to which they are entitled according to
their priority as established by such decree for the
season of 1990.
On July 17, 1990, the Water Commissioner so appointed closed
the headgate of the petitioner, Baker Ditch Co. (Baker Ditch),
which had decreed water rights, and the Water Commissioner refused
to allow Baker Ditch to reopen its headgate. When asked why he had
closed the headgate the Water Commissioner responded that he wished
to enforce the water rights on the river in order of their
priority.
Baker Ditch thereupon filed a dissatisfied water user's
petition in Judge Olson's court on July 30, 1990. This petition
was filed under 55 85-2-406 and 85-5-301, MCA(1989). The
petitioner in general alleges that Baker Ditch is the owner of a
decreed water right under the decree in Cause No. 3850 above
referred to, and that essentially it had not received that water
right and that the Water Commissioner had informed Baker Ditch it
would receive no further water until claims upstream appropriated
with senior priority dates had been satisfied. The petition
further alleged that Baker Ditch could divert water without injury
to such upstream seniors. The petition further alleged that the
headgate was located almost at the end of the West Gallatin River;
that there was sufficient water to supply Baker Ditch: that such
water would come from recharging by return flows, seepage and
otherwise, into the river, even though there might be no water
available for an upstream superior appropriator to Baker Ditch; and
that such appropriation by Baker Ditch did not in any way interfere
3
with any senior upstream water right holders. It alleged that the
Water Commissioner's rigid adherence to the priority system
established, is contrary to the basic principles of water
administration, and contrasted dramatically with the administration
of the water rights' on said river over the past 30 years. The
petition also alleged that the water can be diverted by the
petitioner without any injury to any downstream senior
appropriators, and that the Gallatin River was flowing enough to
satisfy these rights even after the appropriation made by Baker
Ditch.
Judge Olson then recused himself and the matter was
transferred to Judge Larry Moran who also sits in the Eighteenth
Judicial District. A hearing was held on August 23 and evidence
was presented by lay and expert witnesses. Evidence was presented
that the Baker Ditch diversions would not injure upstream senior
water users, and there was no evidence presented that diversion
would harm any of the water users on the West Gallatin River. The
Water Commissioner testified that the diversion by Baker Ditch
would have no adverse effect on upstream senior appropriators.
Judge Moran thereafter declined to issue a ruling which would
conflict with Judge Olson's previous instructions in the temporary
appointment of a water commissioner. Judge Moran did not feel he
could essentially reverse Judge Olson's instructions and orders to
the Water Commissioner of the West Gallatin River relative to the
"dewatering" of the river. Judge Moran then stated that he was not
prepared to conclude that the only beneficial use of water results
from diversion, and that would appear to be one of the main issues
inherent in the position of the petitioner. Judge Moran further
stated that what essentially is asked for here, is to take 2/3 of
the remaining water in the Gallatin River, leaving only 1000 miner
inches available for the river itself. For all practical purposes
the court would consider this a dewatering of the West Gallatin
~ i v e r . If the court were to grant the petition recognizing the
continuing pattern of re-diverting recharged water, then Judge
Moran feels that perhaps would be using water which really only
belongs to the river itself, and to a specific appropriator
regardless of the appropriator's priority.
After additional remarks Judge Moran refused to assume
jurisdiction and remanded the matter back to Judge Olson. Judge
Olson then called in Judge Frank Davis, Judge of the Fifth Judicial
District. On April 18, 1991 Judge Davis issued an order which
discharged the Water Commissioner's original attorney Matt
Williams. It appeared that Mr. Williams was relieved of his duties
because he had presented proposed findings of fact and conclusions
of law which basically granted Baker Ditch the relief requested.
Judge Davis recited in his order that Mr. Williams' position was
that his proposal conformed to the decree. Judge Davis stated that
what is clear is that Williams did not fulfill his duty to advocate
the court's position. Judge Davis authorized Mr. Aaberg to employ
other counsel of his choice to represent the court. The court then
further ordered that if and when other counsel is obtained that
counsel should consult with counsel for Baker Ditch and agree, if
possible, as to what further evidence is deemed necessary or
otherwise formulate an agreement that the matter may be submitted
5
on transcripts and briefs. Should the court's new counsel
conclude, as did the Water omm missioner's original counsel, that
the petition has merit, then the two counsel should simply submit
joint proposed findings, conclusions and order.
Thereafter on July 9, 1991, Judge Olson again temporarily
appointed Les Aaberg as Water Commissioner for the West Gallatin
River. The Water commissioner then retainedthe services of Goetz,
Madden and Dunn of Bozeman to represent him. Again on July 14,
1991, the Water Commissioner directed Baker Ditch to reduce its
diversion to a minimal level. On such date there was approximately
7800 miner inches of flow in the river.
There has not been a decision on Baker Ditch's petition to
receive its adjudicated right of water from the river. On July 16,
1991, the Montana Wildlife Federation filed a motion to intervene
relative to this petition. It does not appear that the Montana
Wildlife Federation has any interest in the decree of the water
rights of the West Gallatin River issued in 1909.
This case began as an administration of the distribution of
water of the West Gallatin River in accordance with the 1909 case
of W.D. Bell v. F.K. Armstrong decree in Cause No. 3850. The
statutes governing this process are for the purpose of expeditious
administration and not for the purpose of adjudication. It is a
relatively simple matter to administer the various water rights and
their priority. The users are entitled to what the decree gives
them and no more. By statute, 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
6
State of Montana. See g 3-7-501, MCA (1989). See Mildenberger v.
Galbraith (1991), 48 St.Rep. 926. District courts are granted the
authority to supervise the distribution of water that has already
been adjudicated and to enforce such water decrees. See g 85-2-
406(3), MCA. The district court is bound by the existing water
decree. In the water decree at issue there is no provision which
provides that water rights may not be enforced in order to avoid a
cessation of instream flow.
The law is clear the only matters for decision relative to the
appointment of a water commissioner and petitions in relation to
his duties, is whether or not the commissioner is distributing
water to existing water right holders pursuant to the adjudication
decree. See Quigley v. McIntosh (1940), 110 Mont. 495, 103 P.2d
1067. The only purpose of the petition of a dissatisfied water
user is to enforce rights determined by the decree.
The Water Commissioner evidently believed that he had to
enforce the decree to the extent that if a prior appropriator was
without water upstream that a subsequent appropriator downstream
could not divert such water under its water right because no water
was available to an upstream prior appropriator, even though the
river was being recharged. Such construction is groundless and
irrational when dealing with the beneficial use of water. If a
junior appropriator downstream is using water and such use cannot
in any way be a detriment to the upstream prior appropriator, then
the downstream owner has the right to the use of such water. See
Custer v. Missoula Public Service Co. (1931), 9 1 Mont. 136, 6 P.2d
131; and Quigley v. McIntosh (1930), 88 Mont. 103, 290 P.2d 266.
7
The decree is to be interpreted according to the water law of the
State of Montana as provided by statutes and appropriate court
decisions.
IT IS THEREFORE ORDERED that the District Court is to instruct
the Water Commissioner to distribute the water of the West Gallatin
River to the users in accordance with the decree of 1909 and this
opinion. Nothing in this order shall restrict the Water
Commissioner in requiring proper headgates, measuring devises and
works, in accordance with the decree.
IT IS FURTHER ORDERED that the motion to intervene by the
Montana Wildlife Federation in the underlying petition of
dissatisfied water users is denied.
DATED this & day of November, 199
Justices
Justice Terry N. Trieweiler would deny the application for writ
of supervisory control.
November 7, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
W. Russell McElyea
Moore, O'Connell, Refling & Manos
P.O. Box 1288
Bozeman, MT 59771-1288
Matt Williams
Attorney at Law
506 E. Babcock
Bozeman. MT 59715
Les Aaberg
Water Commissioner
1145 So. Pinecrest
Bozeman, MT 59715
H. A. Bolinger, Esq.
P.O. Box 1047
Bozeman, MT 59715
James H. Goetz
Attorney at Law
35 No. Grand
Bozeman, MT 59715
Thomas France
Attorney at Law
240 N. Higgins
Missoula, MT 59802
Hon. Thomas A. Olson
District Judge
615 S. 16th St.
Bozeman, MT 59715
Hon. Frank M. Davis
District Judge
2 S. Pacific, CL #6
Dillon, MT 59725
Richard L. Krause, Asst. Counsel
American Farm Bureau Federation
225 Touhy Ave.
Park Ridge, IL 60068
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
J?izL--
BY:
Deputy