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Monte Giese, Steven Kelly v. Leonard Blixrud and Ben Hoge In Their

August 10, 2012

MONTE GIESE, STEVEN KELLY, AND WILLIAM REICHELT, PETITIONERS AND APPELLANTS,
v.
LEONARD BLIXRUD AND BEN HOGE IN THEIR CAPACITIES AS WATER COMMISSIONER FOR THE DECREE IN PERRY V. BEATTIE, CAUSE NO. 371, MONT. NINTH JUDICIAL DISTRICT COURT; AND JOHN DOES 1 THROUGH 5, RESPONDENTS AND APPELLEES.



APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Teton, Cause No. DV 11-009 Honorable Laurie McKinnon, Presiding Judge

The opinion of the court was delivered by: Chief Justice Mike McGrath

Argued and Submitted: May 16, 2012

Decided: August 10, 2012

Filed:

Clerk

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Monte Giese, Steven Kelly and William Reichelt appeal from the District Court's order dismissing their Second Amended Petition and their Third Amended Petition and Request for Certification to the Water Court and Injunctive Relief. We restate the issue on appeal as whether the District Court erred in dismissing Appellants' request for certification to the Chief Water Judge pursuant to § 85-2-406(2)(b), MCA. We reverse.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 This is a dispute over rights to use water from the Teton River in Montana. The Teton River rises in the Rocky Mountain Front in west central Montana and flows eastward for almost two hundred miles before joining the Marias River and soon thereafter the Missouri River. Giese, Kelly and Reichelt use water from the lower or downstream portion of the Teton near Fort Benton, Montana. They claim generally that they are damaged by diversion practices on the upstream portion of the Teton near Choteau, Montana, and that their "calls" on upstream appropriators to release water for their downstream use have been ignored. They first filed a petition for a writ of prohibition in the District Court in February, 2011, and ultimately filed second and third amended petitions seeking to halt certain water diversions from the Teton.

¶3 The dispute arises at least in part from the decision in Perry v. Beattie, Cause No. 371, Montana Eleventh Judicial District Court, Teton County, March 28, 1908.*fn1 Perry decreed the priority date and flow rate of about 40 water right claims in the upper Teton River west of Choteau. The District Court appointed a Water Commissioner pursuant to § 85-5-101, MCA, to administer the water rights decreed in Perry. The majority of water users on the Teton (and their successors in interest, including downstream users Giese, Kelly and Reichelt) were not parties to the Perry case. Giese, Kelly and Reichelt claim water rights from the Teton with priority dates that are senior to or contemporary with the upstream rights decreed in Perry. Water right claimants on the Teton are participating in the Water Court's on-going adjudication of water rights under Title 85, Chapter 2 of the Montana Code. While that process is nearing its final stages, it is not yet complete and the Water Court has not issued a final decree.

¶4 At some time after 1908*fn2 , the Water Commissioner appointed by the District Court to administer the Perry decree began diverting most or all of the flow of the Teton River out of its natural channel and into the Bateman Ditch. That ditch runs roughly parallel to the natural channel of the river and bypasses a stretch of the river channel several miles long that is sometimes referred to as the Springhill Reach. The Reach is an area of natural gravel riverbed near Choteau, and a significant amount of the water flowing through it will seep into the ground. Diverting the Teton River's flow through the Bateman Ditch eliminates the seepage of water in the Reach. While up to 1500 miner's inches*fn3 of the water turned into the Bateman Ditch is used for a decreed right currently held by Saylor, no other appropriator uses the Ditch as a point of diversion.

Diversion of water into the Bateman Ditch in excess of the Saylor right has been a practice of the water commissioner, but one not expressly authorized by any prior decree of the District Court. See Fellows v. The Office of the Water Comm'r, 2012 MT 169, ___ Mont. ___, ___P.3d ___.

¶5 The decreed Choteau Cattle Company right is one of the most senior rights on the Teton, and its point of diversion is the Burd Ditch, the headgate for which is located just downstream from where the Bateman Ditch water re-enters the river channel. Diversion of water through the Bateman ditch in excess of that needed for the Saylor right has been justified as necessary to provide water to Choteau Cattle Company. However, Choteau Cattle has specifically disclaimed any intent to use the Bateman Ditch as a point of diversion and has taken the position that its senior right should be transported to its point of diversion through the natural channel of the Teton River. A direct consequence of the Bateman diversion is to make water available to upper Teton River water users that would not be available for their use if they were required to allow enough water to flow through the Reach for the use of senior appropriators downstream such as Choteau Cattle.

ΒΆ6 Giese, Kelly and Reichelt challenge the Water Commissioner's practice of diverting the flow of the Teton down the Bateman Ditch. They contend that their water rights pre-date the rights of many upstream Perry decree rights and pre-date the Water Commissioner's diversion of the Teton through the Bateman Ditch. They contend that since the Bateman Ditch was not used to divert the entire river at the time of the Perry decree, the Water Commissioner lacked the authority to make the diversion. They contend that they are entitled to have the river flow in the natural channel in the condition it was in at the time their appropriations were perfected and that the natural channel flow cannot be altered if it adversely affects their rights. They contend that allowing the natural water seepage through the Springhill Reach is a ...


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