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.
5
¶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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