95-574
No. 95-574
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA, ex rel.
KATHERINE JONES and TIM LIEN,
Relators,
v.
DISTRICT COURT OF THE FOURTH JUDICIAL
DISTRICT, in and for MISSOULA COUNTY, and
the HONORABLE ED McLEAN, DISTRICT JUDGE,
Respondents.
ORIGINAL PROCEEDING: Application for Supervisory Control
COUNSEL OF RECORD:
For Relators:
Noel K. and Tina J. Larrivee; Larrivee & Larrivee,
Missoula, Montana
For Respondents:
Hon. Joseph P. Mazurek, Attorney General; Harley R. Harris, Assistant
Attorney General, Helena, Montana
Robert L. Deschamps, Missoula County Attorney; Michael W. Sehestedt,
Deputy Missoula County Attorney, Missoula, Montana
For Amicus:
Hon. E. Gardner Brownlee, Retired District Judge, Florence, Montana
Hon. C. Bruce Loble, Chief Water Judge; Michael J. L. Cusick, Water
Master,
Bozeman, Montana
Submitted on Briefs: March 20, 1997
Decided: May 28, 1997
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
On March 28, 1996, this Court granted Katherine Jones' and Tim Lienþs (Relators)
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application for supervisory control and remanded the matter to the District Court for an
evidentiary hearing in order to develop a factual record regarding the contentions before
the court. Hon. Ed McLean, District Judge, Fourth Judicial District, appointed Senior
Water Master Kathryn L. W. Lambert to conduct the evidentiary hearing. After
conducting an evidentiary hearing, Senior Water Master Lambert filed a þMasterþs
Reportþ with the court on October 30, 1996. The District Court, noting that no
objections were filed to the proposed Findings of the Senior Water Master, adopted the
Findings in their entirety.
The issues which are raised in the application for supervisory control and which
were addressed by the Senior Water Masterþs 62 Findings of Fact, are as follows:
1. The District Court exceeded its statutory jurisdiction by performing a
de facto adjudication of water rights to Carlton Creek by issuing the 1989
Updated Decree.
2. None of the conditions allowing a sua sponte decree update to "fill in"
clerical or descriptive deficiencies in the decree as allowed under Cate v.
Hargrave, 209 Mont. 265 (1984) and Quigley v. McIntosh, 110 Mont. 495
(1940) were present when the Order Authorizing Updated Decree was
entered.
3. The District Court erred by issuing the 1989 Updated Decree without
first providing notice and hearing to all interested parties. Relators' and
other Carlton Creek claimants' water rights were altered and reduced
without their knowledge until the inadvertent discovery of the 1989 Updated
Decree.
4. The 1989 Updated Decree contains substantial errors and mistakes that
materially affect the right of Relators.
5. Judge Brownlee had a conflict of interest in the subject matter of the
Updated Decree.
6. The 1989 Updated Decree has been used as the basis for allocating
Carlton Creek causing the premature shut off of water to Relators and other
claimants in violation of their priority rights under the 1982 Decree, and
will continue to be used unless the District Court's November 28, 1995
Order is reversed.
7. If the Updated Decree is not set aside the Water Court will have the
authority to use, and is expected to rely upon, the Updated Decree to
determine the ownership (as well as other details) of Carlton Creek decreed
rights pursuant to 85-2-231, MCA.
8. The District Court violated Article II, Section 9 of the Montana
Constitution by issuing the 1989 Updated Decree without public notice or
hearing, thereby depriving Jones and Lien of the right to examine the
documents and observe the deliberations of the Court and others involved
in developing the Updated Decree.
9. Relators are entitled to attorney's fees.
Background
Without setting forth the Senior Water Masterþs findings verbatim, we provide the
following factual background for purposes of placing our decision in proper context.
On February 21, 1902, the Hon. J. M. Clements entered his Findings of Fact,
Conclusions of Law and Order in Cause No. 1835, Young v. Pendergrass, Fourth
Judicial District in and for Missoula County ("the 1902 Decreeþ). Judge Clements
decreed 27 water rights on Carlton Creek, specifying the then current owners' names, the
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flow rate, the priority date, and, in some instances, the ditch used to convey the water.
On January 31, 1989, the Hon. James B. Wheelis, the Hon. John S. Henson, the
Hon. Jack L. Green and the Hon. Douglas G. Harkin, the four District Court Judges of
the Fourth Judicial District, entered an Order Authorizing Updated Decree in Cause No.
1835, Young v. Pendergrass. The Order directs (1) that the title of the action be changed
by adding þIn the Matter of the Adjudication of Carlton Creek;þ (2) that retired District
Court Judge E. Gardner Brownlee be recalled to active duty to do the necessary research
and prepare the updated decree; (3) that the Clerk of Court put the old decree in archives
and prepare a modern file jacket for the updated decree and all subsequent filings; and
(4) þ[t]hat the updated decree shall supersede all prior pleadings in this action relating to
the matters contained in the updated Decree.þ
The Necessity for the Updated Decree
The Judges of the Fourth Judicial District were concerned about the deteriorating
physical state of the 1902 Decree. Because the 1902 Decree did not include place of use
or legal descriptions, it had been, and would continue to be, necessary for the water
commissioners, as well as the public, to handle the 1902 Decree and the initial pleadings.
As the Senior Water Master noted, the 1902 Decree is indeed very fragile; the paper is
thin and very brittle, the ink is faded and pages are tattered and ripped. The 1902 Decree
has been kept in a folded envelope for as many as 94 years and it is now difficult to open
and use the 1902 Decree without risking more damage. Accordingly, on January 31,
1989, the Judges of the Fourth Judicial District issued an Order Authorizing Updated
Decree in Cause No. 1835.
On April 27, 1989, the Updated Decree Establishing Water Rights in Carlton
Creek, Missoula County (þUpdated Decreeþ) was entered by the Hon. E. Gardner
Brownlee. The Updated Decree includes ownership, priority date, flow rate, place of use
and ditch used for each right. The Updated Decree also notes that some of the decreed
rights were not claimed by any Statement of Claim in the ongoing Montana Water Court
adjudication of water rights on Carlton Creek so that no elements of those water rights
were decreed in the Updated Decree.
Relators Tim Lien and Katherine Jones, husband and wife, purchased their
property and water right located within the Carlton Tracts in 1986. Their water right
claim 76H-W-114356-00 is for a portion of Peter Hendrickson's second water right, in
the amount of 150 miner's inches, decreed in 1902. As of the date of the Updated
Decree, ten Statements of Claim had been filed with regard to Carlton Creek based upon
the Hendrickson water right. The ten Statements of Claim exceed the 150 miner's inches
of the Hendrickson right. This "overclaim" clearly evidences an existing ownership
dispute which is the subject of the adjudication in the Montana Water Court.
Jones did not receive notice from the District Court, the Clerk's office or anyone
else that the Order Authorizing an Update to the 1902 Decree had been entered. Lien
did not receive notice that the 1902 Decree was going to be updated or that his water
right was going to be adjudicated. Neither the 1989 Order Authorizing Updated Decree
or the Updated Decree had a certificate of mailing indicating notice to Relators or to any
other individuals or entities.
On September 11, 1995, after discovering that an Updated Decree had been
entered, Relators filed a Motion to Amend and Set Aside Decree with the District Court
of the Fourth Judicial District. On November 28, 1995, the Hon. Ed McLean issued an
Order Denying the Motion. In its order, the District Court, referencing the on-going
adjudication in the Water Court, stated that "[t]he matter of Carlton Creek has been
reviewed by the Water Court in Bozeman, Montana before the Honorable Bruce Loble,
Chief Water Judge. Therefore it is hereby ordered that all motions to set aside the decree
of May 31, 1989 are denied as a new decree has been issued by the Water Court and that
decree is controlling."
. Question Presented
The dispositive question presented by this petition is whether the substantive
provisions of the Updated Decree in effect adjudicated water rights and thus exceeded the
jurisdiction of the District Court.
Discussion
Section 85-2-234(6), MCA, specifies the elements of existing water rights which
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are to be adjudicated by the Montana Water Court. These elements are the name and
address of the owner, the flow rate and/or volume as required, the priority date, the
purpose (use), the legal description of the land to which the right is appurtenant (the place
of use), the source, the point of diversion, the means of diversion, and the period of use
each year.
The Order Authorizing Updated Decree does not specifically direct that the 1902
decreed rights be re-adjudicated. However, specific provisions of that Order state:
Finding of Fact 3 - To remedy this situation the 1902 decree should be
reworked and expanded to include additional information such as the land
description of the place of use, any subsequent court order defining a
decreed right, the judicial knowledge of the court relating to present use of
water, and information regarding ditches, lake storage water or any other
information that is necessary for a water commissioner to have to properly
perform his duty.
. . . .
Order number 3 - That the Clerk of this Court is instructed to place the old
file in the archives of the court and prepare a new file jacket of modern
design for this order, the updated decree and all subsequent papers filed that
a [sic] filed in this cause.
Order number 4 - That the updated decree shall supercede all prior
pleadings in this action relating to the matters contained in the updated
Decree.
Pursuant to the directive of the Order Authorizing Updated Decree, the Updated
Decree decrees the ownership, priority date, flow rate, place of use and means of
diversion of the various rights. It thus constitutes a de facto adjudication of water
rights.
The Water Court is presently in the process of adjudicating the rights to Carlton
Creek. A Temporary Preliminary Decree of the North End Sub-basin of the Bitterroot
River (Basin 76HB), was issued in September 1992, and included 92 claims for Carlton
Creek waters. After the temporary preliminary decree is modified by the objection and
hearing process, a final decree will be entered and will supersede both the original 1902
Decree and the Updated Decree. Section 85-2-234, MCA. However, in light of the
"overclaim" status of claims on Carlton Creek in the Water Court, the Water Court's
Temporary Decree will not effectively establish rights or priorities on Carlton Creek.
Rather, the Updated Decree, unless reversed, will continue to control the determination
and administration of water rights on Carlton Creek.
We determine that the District Court exceeded its jurisdiction in entering the
Updated Decree. It is solely within the province of the Water Court, not the District
Court, to determine priority dates, flow rates, place of use and means of diversions of
the Carlton Creek water rights. See 85-2-234(6), MCA. We hold that the Updated
Decree thus infringes upon the exclusive jurisdiction of the Water Court to determine
these aspects of water right ownership. Mildenberger v. Galbraith (1991), 249 Mont.
161, 815 P.2d 130, involved Mildenbergers' claim of a prescriptive easement in a water
ditch. We held that, while a district court may grant injunctive or other relief which is
necessary and appropriate to preserve property rights or the status quo pending issuance
of a final decree, the district court lacks jurisdiction to issue a final decree with regard
to the water right. "The jurisdiction to interpret and determine existing water rights rests
exclusively with the water courts. Section 3-7-501, MCA." Mildenberger, 815 P.2d at
134. This principle was reaffirmed in Baker Ditch Company v. District Court (1992) ,
251 Mont. 251, 255, 824 P.2d 260, 262:
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.
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Under certain circumstances a district court may "fill in" a pre-1973 water decree
with further delineations such as time or season of use and acreage of application. Cate
v. Hargrove (1984), 209 Mont. 265, 680 P.2d 952. However, the Updated Decree in
question goes beyond "filling in" when it reallocates and adjudicates water rights that did
not previously exist under the original 1902 Decree.
The Chief Water Court Judge, Hon. C. Bruce Loble, has filed an amicus brief in
this matter in which he asserts that the Updated Decree was not intended as an
adjudication of water rights. Rather, it was designed to formalize what would otherwise
be a routine administrative function; that is updating the records of Carlton Creek to
reflect who has succeeded to a particular water right. He points out that such updating
is necessary when, over the course of time, original owners die or they sell or subdivide
their property. In order to administer the water rights at the present time, the water
commissioners need to know who the present owners are. Judge Loble argues that if
Relators are as dissatisfied with the manner in which the water commissioners are
administering or allocating the water on Carlton Creek, then their proper remedy is found
in 85-5-301, MCA, which allows a person owning or using water from a stream and
who is dissatisfied with the method of distribution of the waters by the water commission-
er, to file an action in district court challenging the distribution. "If it appears to the
judge that the water commissioner or water commissioners have not properly distributed
the water according to the provision of the decree, the judge shall give the proper
instructions for such distribution." Section 85-5-301(2), MCA.
Relators contend that 85-5-301, MCA, is not controlling since Relators are not
dissatisfied with the manner in which the commissioner is administering the decree.
Rather, they are contesting the very terms of the Decree itself; i.e., the Updated Decree.
In other words, they contend that the problem lies, not with the commissioner, but with
the substance of the Decree. We agree. While we acknowledge the practical problems
inherent in administering a 95-year-old decree, those concerns do not change the fact that
the Updated Decree purports to decree priority dates, flow rates and place of use.
Section 85-5-301, MCA, assumes the decree is valid and merely allows the judge to give
proper instruction for the distribution of water under the decree. If the substance of the
decree itself is invalid as being in excess of the court's jurisdiction, then 85-5-301,
MCA, affords no remedy.
For the above reasons, we vacate and set aside the 1989 Updated Decree. The
jurisdiction of the District Court to supervise the distribution of water on Carlton Creek
pursuant to the 1902 Decree or to address controversies as to such distribution shall be
governed by the provisions of 85-2-406, MCA, as amended by Senate Bill 108 (1997).
Having ruled that the Updated Decree exceeds the jurisdiction of the District
Court, we need not discuss the other issues raised by the parties and the amicus, other
than to address Relators' request for attorney fees.
Attorney Fees
Relators contend that when the District Court issued the Order Authorizing
Updated Decree without providing Relators with notice of such proceeding, that they
were denied their right to know under Article II, Section 9 of the Montana Constitution
and thus they are entitled to an award of fees under 2-3-221, MCA.
Article II, Section 9 of the Montana Constitution provides as follows:
No person shall be deprived of the right to examine documents or to
observe the deliberations of all public bodies or agencies of state govern-
ment and its subdivisions, except in cases in which the demand of individual
privacy clearly exceeds the merits of public disclosure.
Relators cite to Associated Press v. State (1991), 250 Mont. 299, 820 P.2d 421
(overruled in part on other grounds), for the proposition that Article II, Section 9 applies
to officers of the district court. In Associated Press, this Court held that a statute which
required the trial judge to keep under seal all affidavits filed in support of motions for
leave to file charges or warrants was unconstitutional under Article II, Section 9's
guarantee of the right to know. Although we held that there was a violation of the right
to know, we denied attorney fees under 2-3-221, MCA, because the statute only allows
fees to a plaintiff who "prevails in an action brought in district court. . . ." Since the
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plaintiffs in Associated Press had bypassed district court and proceeded with an original
action in the Supreme Court, we denied fees. Associated Press, 820 P.2d at 423.
In the present case, Relators did present their claim for attorney fees under 2-3-
221, MCA, to the district court. However, their reliance on Associated Press is
misplaced for substantive reasons. In this matter, unlike Associated Press, there were no
statutes or court orders preventing Relators from examining documents or observing
deliberations of public bodies. Rather, the court proceeded to update a water rights
decree without notifying affected parties. While such a procedure may raise questions
of denial of due process of law under Article II, Section 17, it does not constitute a denial
of the right to know under Article II, Section 9. Accordingly, we hold that Relators are
not entitled to an award of attorney fees under 2-3-221, MCA.
We reverse the District Court order and hereby vacate and set aside the 1989
Updated Decree.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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