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.

PEEBLES, 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

March 1 2016

Case Number: DA 15-0392
2

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
3

Justice Beth Baker delivered the Opinion of the Court. 

¶1 Appellants1appeal 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.
4

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 
5

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.
6

¶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.
7

¶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.
8

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 
9

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 
10

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. 
11

¶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 
12

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 
13

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 
14

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 
15

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 
16

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 
17

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 
18

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
19

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 
20

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 
21

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