In Re the Adjudication of the Existing Rights to the Use of All the Water, Both Surface & Underground Within the Clark Fork River Drainage Area Above the Blackfoot River

No. 95-377
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE
OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND WITHIN THE CLARK
FORK RIVER DRAINAGE AREA ABOVE THE BLACKFOOT RIVER, INCLUDING ALL
TRIBUTARIES OF THE CLARK FORK RIVER ABOVE THE BLACKFOOT RIVER
IN DEER LODGE, GRANITE, LEWIS AND CLARK, MISSOULA, POWELL, AND
SILVER BOW COUNTIES, MONTANA.

CLIFFORD E. GRAVELEY,
Claimant and Appellant,
and GRAVELEY BLACK MOUNTAIN RANCH, CLIFFORD E. GRAVELEY, JAMES
BIGNELL, DAN M. GRAVELEY, JIM C. QUIGLEY, WILLIAM M INTOSH,
C
OLIVE MCDONALD, MONTANA DEPARTMENT OF FISH, WILDLIFE & PARKS,
Objectors and Respondents.

APPEAL FROM: Montana Water Court, Clark Fork Division! Clark
Fork River Above the Blackfoot River Basin (76G)
The Honorable Ted Mizner, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Peter C. Pauly, Helena, Montana
(Clifford E. Graveley)
For Respondents:
G. Steven Brown, Attorney at Law, Montana Dept.
of Fish, Wildlife & Parks, Helena, Montana;
John Bloomquist, Attorney at Law, Helena, Montana
(Graveley Black Mountain Ranch);
Cindy E. Younkin, Attorney at Law, Bozeman,
Montana (Jim C. Quigley);
David L. Pengelly, Attorney at Law, Missoula,
Montana (James Bignell and Dan Graveley)
For Amicus Curiae:

Submitted o n Briefs: December 7, 1995
December 21, 1995
Justice Terry N. Trieweiler delivered the opinion of the Court.
Clifford E. Graveley filed a statement of claim for one-half
of an existing water right of 350 miners inches (8.75 cfs) from
Three Mile Creek in Powell County. Olive McDonald, Jim C. Quigley,
Clifford E. Graveley, William McIntosh, Dan M. Graveley, James E.
Bignell, the Montana Department of Fish, Wildlife and Parks, and
the Graveley Black Mountain Ranch (Respondents) objected to his
claim. On March 17, 1994, following a hearing on respondents'
objections, the Water Master entered a report in which he found
that Clifford Graveley's water right had been abandoned by over
fifty years of nonuse, and in which he concluded that Graveley's
water right claim should be terminated, and that the water right
should not appear in the preliminary decree for the Clark Fork
River above the Blackfoot River Basin. Graveley objected to the
Water Master's report. On April 4, 1995, the Water Court, Clark
Fork Division, entered an opinion and order in which it adopted the
Water Master's report and terminated Graveley's water right.
Clifford Graveley appeals the Water Court's order. We affirm the
order of the Water Court.
There is one issue on appeal:
Did the Water Court err when it found that Graveley's water
right, appropriated and decreed for mining purposes, had been
abandoned by a long period of nonuse?
FACTUAL BACKGROUND
Pursuant to the statewide adjudication of water rights,
Clifford E. Graveley filed a claim for an existing water right to

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divert 175 miners inches of water (4.375 cfs) from Three Mile
Creek, a tributary of the Little Blackfoot River. The means of
conveyance of Graveley's claim was the Ohio Ditch, which diverted
water southeast from Three Mile Creek to the Ophir Mining District.
The Ohio Ditch is the only ditch from Three Mile Creek capable of
serving Graveley's patented mining claims.
Graveley's water right claim, identified as 76G-W-090819-00,
was based on a right decreed to the Ophir Gold Mining Company in
1913 with a claimed priority date of June 1, 1865. The Ophir Gold
Mining Company's right was specifically decreed "for the purpose of
placer mining in Ophir Gulch and Carpenter Bar and beyond and
without the watershed of said Three Mile Creek." That right was
transferred four times between 1939 and 1959. On July 6, 1959,
Graveley received the water right as part of a conveyance of
several placer claims, water rights and ditch rights. Immediately
thereafter, Graveley deeded a one-half interest in those mining
claims and water rights to William L. McIntosh.
On May 17, 1985, a water right for claim 76G-W-090819-00 was
granted to Graveley as part of a temporary preliminary decree for
the Clark Fork River Basin above the Blackfoot River (Basin 76G).
Respondents filed objections to Graveley's claim on the basis that
the claim had been abandoned through nonuse. On December 14, 1993,
a Water Master conducted a hearing to consider the respondents'
objections to Graveley's claim.
Although there was some testimony at the hearing that limited
mining activity took place after 1913 in the Ophir, Snowshoe, and

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Carpenter Creek Mining District, in which Graveley's claim is
located, there was no dispute that that mining did not involve use
of Graveley's claimed water right. In fact, the parties agreed
that Graveley's water right had not been used at all for at least
fifty years prior to June 1, 1973. During this period of time, no
maintenance was done to the Ohio Ditch or its headgate on Three
Mile Creek. In fact, testimony revealed that at the time of the
hearing the headgate was approximately 150 feet from the creek and
was in a state of total disrepair.
Testimony at the hearing also revealed that Graveley had done
nothing to use the water right himself. Graveley testified that
his intention when he purchased the property associated with the
water right claim was for ranching. Although Graveley did state
that he was aware of the mining claims and the water rights
associated with them, he admitted that he is not a miner and had no
intention of mining the area himself. Graveley did not give a
reason for the long period of nonuse of his claim except for an
apparent lack of economic viability to warrant mining in the area.
Although the Water Master noted, based on the testimony of
Graveley's expert witnesses, that the Ophir Mining District might
have some potential for future mining activity, he concluded that
the evidence of a use of a right after July 1, 1973, is not
relevant to the determination of existing water rights. Therefore,
based on the testimony at trial, the Water Master found that there
was a rebuttable presumption that Graveley's water right had been
abandoned by a fifty-year period of nonuse. The Water Master

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further found that Graveley had failed to give a reason for nonuse
that would overcome the presumption of abandonment. The Master
therefore held that Graveley's water right claim should be
terminated and that the claim should not appear in the preliminary
decree for the Clark Fork River above the Blackfoot River Basin.
Graveley objected to the Water Master's report and appealed the
decision to the Water Court, Clark Fork Division.
On appeal, the Water Court held that substantial credible
evidence supported the Water Master's findings of fact and that he
correctly applied the law. The court therefore denied Graveley's
objection to the Water Master's report and adopted the Water
Master's findings regarding Graveley's abandonment of the mining
water right. On the basis of these findings, the Water Court
ordered that water right claim 76G-W-090819-00 is terminated and
shall not appear in the preliminary decree of the Clark Fork River
above the Blackfoot River Basin (Basin 76G).
DISCUSSION
Did the Water Court err when it found that Graveley's water
right, appropriated and decreed for mining purposes, had been
abandoned by a long period of nonuse?
Whether a water right has been abandoned is a question of
fact. Section 89-802, RCM (applicable here; repealed in 1973); Inre

Adjudication of Water Rights of the Clark Fork River ( 1992 ) , 2 54 Mont. 11, 14, 633

P.2d 1120, 1122. We review a water court's findings of fact to

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determine whether they are clearly erroneous. InreClarkForkRiver, 833

P.2d at 1122.
There are two essential elements for the abandonment of a
water right: nonuse of the water associated with the water right
and intent to abandon the water right. In re Clark Fork River, 0 3 3 P .2 d

at 1123. In 79Ranch,Inc.v.Pitsch (1983), 204 Mont. 426, 666 P.2d 215,

we set forth the criteria for determining whether a water right has
been abandoned. The objectors have the initial burden of proving
that a water right has not been used for a sufficiently long period
of time to raise a rebuttable presumption of an intent to abandon
that right. 79 Ranch, 666 P.2d at 218. Once a period of nonuse

sufficient to raise the presumption of an intent to abandon has
been established, the burden shifts to the claimant of the water
right to explain the reasons for nonuse. 79 Ranch, 666 P.2d at 218.

To rebut the presumption of abandonment, the claimant must
establish "some fact or condition excusing the long period of
nonuse, not mere expressions of hope or desire reflecting a
'gleam-in-the-eye philosophy' regarding future use of the water."
In re Clark Fork River, 833 P.2d at 1123 (quoting 79Ranch, 666 P.2d at

219).
In this case, it is undisputed that Graveley's water right was
not used for a period of at least fifty years prior to July 1,

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1973.1 Three of the objectors who testified at the Water Master's
hearing in 1993 (whose ages were 83, 71, and 49) stated that the
Ohio Ditch had not been used to divert any water from Three Mile
Creek during their lifetimes. Graveley's expert witness, Dr.
McCleran, testified that in his opinion the Ohio Ditch had not been
used to divert water since the early part of this century.
Graveley himself, who was 71 at the time of the hearing, testified
that there had never been a call for the disputed water right
during his lifetime.
1n 79Ranch, we held that a period of forty years of continuous

nonuse of an irrigation right was sufficient to raise a presumption
of abandonment. 79 Ranch, 666 P.2d at 218. III In re Clark Fork River, we

held that a period of twenty-three years of continuous nonuse of
municipal water rights was sufficient to raise a presumption of
abandonment. InreClarkForkRiver, 833 P.2d at 1123. In this case, the

uncontroverted evidence establishes that Graveley's water right
claim, appropriated and decreed for mining purposes, was not used
for a period of over fifty years prior to 1973. Based on the
standards established by this Court, it is clear that this showing
of fifty years of continuous nonuse raised a rebuttable presumption
that Graveley intended to abandon his water right.

1
We note that the purpose of the statewide adjudication of
water rights is to determine water rights as they existed on
July 1, 1973, when the Montana Water Use Act was enacted.
Therefore, evidence of the use of a right after July 1, 1973, is
not relevant to the determination of abandonment of an existing
water right. See In re Clark Fork River, 833 P.2d at 1123-24.

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 The burden of proof therefore shifted to Graveley to rebut the
presumption of abandonment by explaining the reasons for nonuse of
the water right. At the Water Master's hearing, however, Graveley
offered no excuse for the nonuse of his mining water right claim
except for the apparent lack of economic viability of mining the
area. Graveley did not present evidence that either he or his
predecessors had made any effort to make use of the disputed water
right for over fifty years prior to July 1, 1973. In fact,
Graveley admitted that he had done nothing to use the water right
himself and had made no effort to make the Ohio Ditch functional
for exercise of that right.
Instead, Graveley maintained that the cyclical nature of the
mining industry and its uncertain economics were reason enough to
explain the long period of nonuse. Graveley testified that he was
aware of the underlying land's potential for mineral development
when he purchased the patented mining claim and was awaiting a turn
of events in the mining industry to realize the value of both his
water right and the underlying mineral interest. Graveley's expert
witness, Dr. McCleran, testified that Graveley's mineral rights,
like other rights in Powell County, were merely "awaiting renewed
interest." Dr. McCleran testified that the mining industry is
subject to fluctuations in the national and international
economies, the price of commodities such as gold, developments in
mining technology, and the regulatory climate in the national,
state, and local levels.

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 On appeal, both Graveley and the Montana Mining Association,

which filed an amicuscuriae brief, contend that the uniqueness of the

mining industry compels a different standard for the determination

of the abandonment of a water right. In its brief, the Montana

Mining Association maintains that "[tlhe rule of abandonment as

applied to water rights used for mining purposes must recognize

that periods of nonuse are common for mineral properties and rarely

indicate an intent to abandon the appurtenant water rights." In

effect, Graveley and the Montana Mining Association ask this Court
to differentiate between the different uses of water in determining

the factual question of whether a water right has been abandoned.

We see no reason, however, to make such a differentiation.

The law of abandonment has not developed by distinguishing the

various uses of water. The statutory guidelines for the determina-

tion of abandonment of a water right set forth in § 85-2-404, MCA,
characterize all water rights as "appropriation rights," and make

no distinction between the uses of water. Although § 85-2-404,

MCA, will not become effective for existing rights until they have

been finally adjudicated, we cited the statute in our decision in

79 Ranch, 666 P.2d at 219, as the "general, modern trend," and

recognized the importance of "providing an approach for the

determination of abandonment of water rights consistent with the

express intent of our legislature." The Montana Legislature has

clearly not chosen to accord a different standard for the

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determination of the abandonment of water rights used for mining

purposes.

In addition, Montana's case law has never discriminated
between the different uses of water in determining whether a water

right has been abandoned. See, e.g., Smith Y. Hope Mining Co. (1896),

18 Mont. 432, 45 P. 632 (water rights for mining); HolstromLandCo.v,

MeagherCountyNewlanCveekWaterDistrict (1979), 185 Mont. 409, 605 P.2d 1060

(water rights for irrigation); 79 Ranch, 666 P.2d 215 (water rights

for irrigation) ; In re Clark Fork River, 833 P.2d 1120 (municipal water

rights). In fact, in 79 Ranch, in response to a claim that a water

right claimant's predecessor had not had sufficient funds to

irrigate with the water from the claim, this Court relied on a

Colorado mining water rights case, CF & I Steel Corporation Y. Purgatoire River

Water Conservation Distvict (Cola. 1973), 515 P.2d 456, in which the

Colorado Supreme Court held that the economic realities of the

mining industry were not enough to justify fifty-four years of

nonuse of a water right. Without making a differentiation between

mining and irrigation water rights, we stated:

Here, [the claimant1 argues that his predecessors in
interest did not have sufficient funds to irrigate. . . .
In resoonse to this same arqument, the Colorado Court has
stated:
II Considering the large demands for all
of the appropriable water in this state . . .,
it might be said that nearly every abandoned
water right could have its non-use justified
by the economics that might prevail sometime
in the future for the use of this water
. . . . This gleam-in-the-eye philosophy is
not consistent with the protection and

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 preservation of existing water rights." CF&I
Steel Corporation, 515 P.2d at 458.

(Emphasis added).

Graveley's claim that his mining rights might someday become

economically viable reflects nothing more than this "gleam-in-the-

eye philosophy" of hope, which we specifically rejected in both 79

Ranch and In ye Clark Fork River. At the Water Master's hearing, Graveley

established no fact or condition which would excuse the fifty-year

period of nonuse. In addition, he produced no evidence that he had

intended to put the water right to beneficial use. Graveley's only

rationale for the nonuse of his water right was the lack of

profitability of mining his patented mining claims. His only

evidence of intent was a hope that that claim might someday become

economically viable. However, as the Colorado Supreme Court stated

in CF & I Steel Corp., 515 P.2d at 459: "In viewing the issue of

abandonment, one must look to the water right as decreed and not to

some possible hoped-for future use at some undetermined place."
Therefore, because we reject the argument that mining water

right uses should receive unique treatment for the purposes of the

factual determination of abandonment, and because we find that

Graveley did not introduce evidence sufficient to rebut the

presumption of abandonment in this case, we conclude that the Water

Court's finding that Graveley abandoned his claim to the disputed

water right is supported by substantial evidence. Accordingly, we

affirm the order of the Water Court which terminated Graveley's

water right claim and ordered that the water right shall not appear
 in the preliminary decree for the Clark Fork River above the
Blackfoot River Basin.

We concur:

-,//,-flfZl--J&
I Chief Justice

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