IN THE SUPREME COURT OF THE STATE OF MONTANA No. 91-386

BAKER DITCH COMPANY, Petitioner, ) OPINION -V- ) AND 

### 1 ORDER 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

./ rnrlz CLERKOFSUPREWIEC~~~~ STATEOFMONTANA The original opinion and order in this casewas 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 Our original opinion and order in this cause dated November 7, 1991 is hereby withdrawn.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 thewaters of theWest GallatinRiver 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 promotejudicial economy and eliminate needless litigation, State ex rel. First Bank v. Dist. Court (1989), 240 Mont. 77, 782 P.2d 1260; State ex rel. Fitzgeraldv. Dist. Court (1985),217 Mont. 106, 114, 703 P.2d 148; and to resolve procedural entanglements, State ex rel. Leavittv. Dist. Court (l977), 172Mont. 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. Thewater rights of the petitioner were adjudicated therein aswell as rightsof 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: Thecourtbeing advised thattheWestGallatinRiver 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 dewatering 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 theWater Commissionerwas signed on thesame 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 suchdecree (referringto theW.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 itsheadgate. When askedwhy he had closed theheadgate theWater Commissionerresponded thathewished 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 Commissionerhad 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 foran upstream superior appropriator to Baker Ditch;and that such appropriationby Baker Ditch did not in any way interfere with any seniorupstreamwater rightholders. 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 dramaticallywith theadministration 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 thewater users on theWest Gallatin River. The Water Commissioner testified that the diversion by Baker Ditch would have no adverse effect on upstream senior appropriators. Judge Moran thereafterdeclined to issue a ruling which would conflict with JudgeOlson's previous instructions in the temporary appointment of a water commissioner. Judge Moran did not feel he 4could essentially reverse Judge Olson's instructionsand orders to the Water Commissioner of the West Gallatin River relative to the "dewatering"of the river. JudgeMoran then stated that hewas not prepared to conclude that the only beneficial use of water results from diversion, and that would appear to be one of themain 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 remainingwater 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. Itappeared thatMr. Williamswas 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 thathisproposal conformed to thedecree. JudgeDavis stated that what is clear is thatWilliams did not fulfill his duty to advocate the court's position. Judge Davis authorized Mr. Aaberg to employ 5other 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. TheWater Commissioner then retained the servicesof 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 aminimal 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 6relatively simplematter toadministerthevariouswater rightsand 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 determinationof existingwater rightswithin theboundariesof the State of Montana. See 

### 5 3-7-501, MCA (1989). SeeMildenberger 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 rightsmay not be enforced in order to avoid a cessation of instream flow. The law is clear the onlymatters 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

7subsequent 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 appropriatorhas the right to the

use of such water. See Custer v. Missoula Public Service Co.

(1931), 91Mont. 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 statutesand appropriate court decisions. TheMontana 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 THEREFOREORDERED that the District Court is to instruct theWater Commissionerto distributethe water of theWest 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 JusticeJustice Terry N. Trieweiler would deny the petition for writ of supervisory control and grant the petition for rehearinq.

### January9, 1992 CERTIFICATEOFSERVICE 

### Iherebycertifythat thefollowingorderwas sentbyUnited Statesmail,prepaid,to the followingnamed:

W.RussellMcElyea Moore,O'Connell, Refling&

### Manos P.O.Box 1288 Bozeman,MT 59771-1288 MattWilliams AttorneyatLaw 506

### E.Babcock Bozeman,MT 59715 LesAaberg WaterCommissioner 1145 So.Pinecrest Bozeman,MT 59715 

### H.A.Bolinger,Esq. P.O. Box 1047 Bozeman,

### MT 59715

James

### H.Goetz AttorneyatLaw 35

### No.Grand Bozeman,MT 59715 ThomasFrance AttorneyatLaw 240

### N. Higgins Missoula,MT 59802 Hon. ThomasA.Olson DistrictJudge 615

### S. 16thSt.

### Bozeman,MT 59715

Hon.FrankM.Davis DistrictJudge 2S.Pacific,CL#6 Dillon,MT 59725 RichardL.Krause,Asst.Counsel AmericanFarmBureauFederation 225TouhyAve. ParkRidge,

### IL 60068 EDSMITH CLERKOF THESUPREME COURT STATEOFMONTANAIN THE SUPREME COURT OF THE STATE OF MONTANA No. 91-386

BAKER DITCH COMPANY, Petitioner, ) OPINION -v- ) AND ) ORDER 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 thewaters of theWest GallatinRiver in accordancewith 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. Fitzgeraldv. Dist. Court (1985), 217Mont. 106, 114, 703 P.2d 148; and to resolve procedural entanglements, State ex rel. Leavittv. Dist. Court (1977), 172Mont. 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 thepetitioner were adjudicated therein aswell 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 courtbeing advised thattheWest GallatinRiver 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 dewatering 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 partiesentitled thereto under suchdecree (referringto theW.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 theWater Commissioner refused to allow Baker Ditch to reopen its headgate. When asked why he had closed theheadgate theWater Commissioner responded thathewished 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 appropriationby Baker Ditch did not in any way interfere

3with any seniorupstream 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 theadministration 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 thewater 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. JudgeMoran thereafter declined to issue a ruling which would conflictwith JudgeOlson's previous instructions in the temporary appointment of a water commissioner. JudgeMoran did not feel he could essentially reverse Judge Olson's instructionsand orders to the Water Commissioner of the West Gallatin River relative to the "dewatering" of the river. JudgeMoran then stated that hewas not prepared to conclude that the only beneficial use of water results from diversion, and that would appear to be one of themain issuesinherent 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 1000miner inches available for the river itself. For all practical purposes the court would consider this a dewatering of the West Gallatin ~iver. 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 thatMr. 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 thedecree. Judge Davis stated that what is clear is thatWilliams did not fulfillhis 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

5on transcripts and briefs. Should the court's new counsel conclude, as did the Water 

### omm missioner's original counsel, that the petition hasmerit, 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. TheWater commissioner then retainedtheservicesof 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 aminimal 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 thepurpose of expeditious administration and not for the purpose of adjudication. It is a relatively simplematter to administer thevarious water rightsand 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 existingwater rights within theboundaries of the

6State of Montana. See g 3-7-501, MCA (1989). SeeMildenberger 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 rightsmay not be enforced in order to avoid a cessation of instream flow. The law is clear the onlymatters fordecision 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 itswater rightbecause 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), 91Mont. 136, 6 P.2d 131; and Quigley v. McIntosh (1930), 88 Mont. 103, 290 P.2d 266.

7The decree is to be interpreted according to the water law of the State of Montana as provided by statutes and appropriate court decisions. IT ISTHEREFORE ORDERED that theDistrict Court is to instruct theWater Commissionerto distributethewater of theWest 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.

### November7, 1991 CERTIFICATEOFSERVICE 

### Ihereby certifythatthefollowingorderwas sentby United Statesmail,prepaid, tothe followingnamed:

W.RussellMcElyea Moore,O'Connell, Refling&

### Manos P.O. Box 1288 Bozeman,MT 59771-1288 MattWilliams AttorneyatLaw 

### 506E.Babcock Bozeman.MT 59715 LesAaberg WaterCommissioner 1145 So.Pinecrest Bozeman,MT 59715 H.A.Bolinger,Esq. P.O. Box 1047 Bozeman,MT 59715

James H.Goetz AttorneyatLaw 35No.Grand Bozeman,MT 59715 ThomasFrance AttorneyatLaw 240N.Higgins Missoula,MT 59802 Hon. ThomasA. Olson District Judge 615 S. 16th St.

### Bozeman,MT 59715

Hon.FrankM.Davis DistrictJudge 2S. Pacific,CL#6 

### Dillon,MT 59725 Richard

### L.Krause,Asst.Counsel American Farm Bureau Federation 225TouhyAve. Park Ridge,

### IL 60068 

### EDSMITH CLERKOF THESUPREME COURT STATEOFMONTANA 

### BY:

# J?izL-- Deputy