Submitted on Briefs: July 31, 2013
APPEAL FROM District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DV 2012-8 Honorable Wm. Nels Swandal, Presiding Judge
For Appellant: Bruce E. Becker
For Appellee: Donald D. MacIntyre, Attorney at Law, Helena, Montana Brett Linneweber, Park County Attorney
For Intervenor: Karl Knuchel, Erik Coate, Attorneys at Law
Mike McGrath, Chief Justice
¶1 The City of Livingston appeals from the District Court's "Order Affirming Decision of PCD" [Park Conservation District], filed January 7, 2013. We affirm.
¶2 On appeal the City contends that the District Court erred in upholding the PCD's decision that a certain channel adjacent to the Yellowstone River is part of the natural watercourse of the Yellowstone River and therefore subject to the Natural Streambed and Land Preservation Act, § 75-7-101, et seq, MCA. The City contends that the PCD decision was arbitrary and capricious, characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 The disputed channel is adjacent to the Yellowstone River near Livingston, Montana, and has been used since the nineteenth century to obtain Yellowstone River water to satisfy water rights currently held by Heart K Ranch. T he Yellowstone River flows into the channel when water levels are high and returns to the main channel of the River downstream. Heart K has no headgate on the River, and has to remove accumulated rocks, gravel and other materials to allow River water into the channel in times of lower flows. The City owns land adjacent to the channel and contends that Heart K's maintenance activities in the channel have harmed the City's property. The PCD has reviewed and permitted Heart K's maintenance activities in the channel as provided in the Natural Streambed and Land Preservation Act of 1975, § 75-7-101 through -125, MCA. The City contends that the channel does not fall under the Act and that the PCD therefore has no authority to permit Heart K's maintenance activities.
¶4 In April 2011, the City petitioned the PCD for a declaratory ruling under § 75-7-125, MCA, which provides for rulings to "determine the applicability, interpretation, or implementation of any statutory provision or any rule" adopted under the Act. The PCD accepted the petition on the narrow issue of whether the channel in question is subject to the permitting process in the Act, or whether, as the City contends, the channel is actually an irrigation ditch not subject to the Act. T here is no dispute that the Yellowstone River itself is subject to the Act.
¶5 The PCD appointed Laurie Zeller, Bureau Chief of the Conservation Districts Bureau of the Montana Department of Natural Resources and Conservation as hearing officer for the declaratory ruling proceeding. The PCD, Heart K, the City, the Montana Department of Fish, Wildlife & Parks, and others submitted exhibits and information. There was a public hearing in September 2011, to receive relevant testimony, and the hearing officer conducted a site visit. The hearing officer made findings of fact and issued a recommended decision. On December 8, 2011, the PCD issued its Declaratory Ruling that the channel is a flood channel, high water channel, or side channel of the Yellowstone River, and is therefore subject to the Act.
¶6 The PCD applied the Act along with its own administrative rules and those adopted by the Department of Natural Resources and Conservation. Considering the totality of the circumstances, the PCD determined that the Yellowstone River is a dynamic river system in the area of the channel and that it frequently changes channels due to scouring and deposition of river materials during high water. During this process, islands of gravel deposits form and then wash away, and side channels, including the channel at issue, are overtaken by the flows and become part of the River.
¶7 The channel at issue is within this migration zone of the Yellowstone River, and water in the channel comes from the natural flow of the River. Any water not taken from the channel for irrigation returns to the main channel of the River. The PCD examined aerial photos, maps, and the actual area during a site visit, and found no evidence of spoil piles to indicate that the channel is a man-made ditch. The PCD found no evidence of a headgate to divert water into the ...