Submitted on Briefs: January 25, 2017
FROM: Montana Water Court, Cause No. 41I-67 Honorable Loren
Tucker, Water Judge
Appellant: John E. Bloomquist, Bloomquist Law Firm P.C.,
Appellee City of Helena: Thomas Jodoin, Helena City Attorney,
Helena, Montana Candace C. Payne, Luxan & Murfitt, PLLP,
Helena, Montana Christian D. Tweeten, Attorney at Law,
Appellee City of Rimini: Holly Jo Franz, Franz &
Driscoll, PLLP, Helena, Montana.
MICHAEL E WHEAT, JUSTICE
Andy R. Skinner (Skinner) appeals and the City of Helena
(Helena or City) cross-appeals from the order of the Montana
Water Court, Upper Missouri Division, partially reversing and
partially adopting the Water Master's Report.
We restate the issues on appeal and cross-appeal as follows:
Issue One: Is § 85-2-227(4), MCA, as applied to the
City's water rights claim, impermissibly
Issue Two: Did the Water Court err in reinstating 7.35
cfs of Helena's Tenmile Creek water rights?
A. Did the Water Court err in finding that §
85-2-227(4), MCA, should be applied to create a presumption
of nonabandonment for the City?
B. Did the Water Court correctly reject the Master's
finding that Skinner had rebutted the presumption of
Issue Three: Did the Water Court err in finding that the
City had abandoned 0.60 cfs of its Tenmile Creek water
Issue Four: Did the Water Court err in imposing specific
place of use restrictions on Helena's decreed Tenmile
Creek water rights?
affirm in part and reverse in part.
AND PROCEDURAL BACKGROUND
This controversy involves two water rights claims filed by
the City for the waters of Tenmile Creek, a stream located in
the mountains southwest of Helena, Montana. Rising on the
Continental Divide, the creek flows north between Red
Mountain and Lee Mountain, before passing through the old
mining community of Rimini, Montana. Upon reaching U.S.
Highway 12, the stream turns east towards Helena and flows
northeast, just beyond the City's northwest boundary.
In the mid-1800's, miners appropriated water from the
stream for use in their mining operations. By 1886, the mines
had become depleted and some of the miners sold their water
rights to the Helena Water Works Company (Company). In 1903,
a decree entitled Whitcomb v. Helena Water Works
(Decree) declared the Company to be the owner of
the first two rights on the stream. The first right had a
priority date of November 5, 1864, and entitled the Company
to an appropriation of 225 miner's inches (MI) (claim
number 41I 89074-00). The second right had a priority date of
February 10, 1865, and entitled the Company to an
appropriation of 325 MI (claim number 41I 890745-00). Taken
together, the two rights to the stream total 550 MI, or 13.75
cubic feet per second (cfs).
At the time of the Decree, the Company used two points of
diversion for the stream. The first point diverted 225 MI
through an open ditch, running near Rimini, into a water
treatment facility, and then into Helena through two
sixteen-inch pipelines. The precise date of the
pipeline's construction is unknown, but is thought to be
around 1903. The second point diverted 325 MI four miles
downstream from the treatment facility through an open
channel known as the "Yaw Yaw" ditch. The City
acquired the Company's facility and water rights in 1911.
In 1919, the City ceased using the Yaw Yaw ditch for
municipal purposes, but continued to lease the water for
agricultural use and maintain the facilities for emergency
In 1921, the City replaced the open ditch running near Rimini
with an eighteen-inch concrete diversion pipeline known as
the "Rimini Pipeline, " and added five new points
of diversion along Tenmile Creek. After the City ceased using
the Yaw Yaw ditch for municipal purposes, all of the
creek's diversions flowed through the Rimini Pipeline.
The pipeline has a capacity of 13.15 cfs, 0.60 cfs less than
the combined total of Helena's two Tenmile Creek water
The City continued to rely on the two sixteen-inch pipelines
to deliver water from the treatment facility to Helena. By
1929, the City had identified the two sixteen-inch pipelines
as the limiting factor in the Tenmile system; specifically,
an engineering report from that year found that leakage,
waste, and other factors restricted the capacity of the
pipelines to 5.50 cfs. The report recommended construction of
a new transmission pipeline. In 1948, the City installed a
new twenty-four-inch pipeline. The pipeline enabled the City
to transmit 13.15 cfs from the Rimini Pipeline, but has a
capacity of 13.75 cfs.
Skinner owns junior water rights on Tenmile Creek. Both
Skinner and the Community of Rimini objected to Helena's
Tenmile Creek water right claims and the subsequent
procedural background concerning the Water Court's
adjudication of the City's claims spans two decades. In a
report filed July 28, 2011, and a supplemental report filed
January 13, 2012, Water Master Hugh B. McFadden, Jr. (the
Master) found that the City abandoned 7.35 cfs of its water
rights to Tenmile Creek and imposed specific place of use
restrictions on the City's water rights. On November 8,
2013, Water Judge Ted L. Mizner held that the Master erred in
failing to apply Montana's presumption of municipal
nonabandonment statute,  and restored the full decreed right of
13.75 cfs to the City. Judge Mizner also adopted the
Master's place of use finding. Skinner appealed to the
Montana Supreme Court and, on February 24, 2015, this Court
remanded the case for further proceedings due to procedural
errors and ambiguities in the Water Court's order.
On remand, Water Judge Loren Tucker adopted the Master's
finding that the City had abandoned 7.35 cfs of its water
rights claims under the common law. However, the Water Court
then ordered the parties to brief whether the City may avoid
abandonment under § 85-2-227(4), MCA, including whether
the statute is constitutional. On April 29, 2016, the court
found that: 1) under § 85-2-227(4), MCA, the
"evidence established a presumption that the City did
not intend to abandon 7.35 cfs, " which Skinner failed
to rebut; and 2) the City abandoned 0.60 cfs in the Rimini
Pipeline, the difference between the 13.15 cfs capacity of
the pipeline and 13.75 cfs, the capacity decreed.
Skinner now appeals, and the City cross-appeals, the Water
Court's order. Additional facts will be provided as
necessary to dispose of the issues raised.
In a case involving both a water master and the water court,
two standards of review are applicable: the standard the
water judge applies to the master's report and the
standard we apply to the water court's opinion.
Skelton Ranch, Inc. v. Pondera Cnty. Canal &
Reservoir Co., 2014 MT 167, ¶ 25, 375 Mont.
327, 328 P.3d 644. The water court reviews the master's
findings of fact for clear error and the master's
conclusions of law to determine whether they are correct.
Skelton Ranch, ¶ 25. Applying these standards
of review, the water judge may adopt, modify, or reject the
master's report, in whole or in part, or may receive
further evidence or recommit it with instructions.
Skelton Ranch, ¶ 5.
We review the water court's order de novo, to determine
whether it correctly applied the clear error standard of
review to the master's findings of fact and whether its
conclusions of law were correct. Skelton Ranch,
¶ 26. Whether the standard of review was applied
correctly is a question of law. Skelton Ranch,
¶ 26. We review the water court's findings to
determine whether they are clearly erroneous. Skelton
Ranch, ¶ 26.
Clear error can be found by one of three ways:
A factual finding may be clearly erroneous if it is not
supported by substantial evidence. Even if supported by
substantial evidence, the finding may be clearly erroneous if
the trier of fact misapprehended the effect of the evidence.
Even if supported by substantial evidence and the effect of
the evidence is not misapprehended, a finding may be clearly
erroneous if, in light of the evidence as a whole, the
reviewing court is left with a definite and firm conviction
that a mistake has been made.
In re Eldorado Coop Canal Co., 2016 MT 94, ¶
17, 383 Mont. 205, 369 P.3d 1034 (citing Marks v. 71
Ranch, LP, 2014 MT 250, ¶ 12, 376 Mont. 340, 334
P.3d 373). Substantial evidence is evidence that a
"reasonable mind might accept as adequate to support a
conclusion, even if the evidence is weak or
conflicting." Skelton Ranch, ¶ 27. To find
substantial evidence there must be more than a scintilla of
evidence but a preponderance of the evidence is not required.
This standard is deferential, and not synonymous with the
clear error standard. A reviewing court may still find a
factual finding is clearly erroneous even though there is
evidence to support it. Skelton Ranch, ¶ 27.
Issue One: Is § 85-2-227(4), MCA, as applied to the
City's water rights claim, impermissibly
The City of Helena first argues that Skinner's appeal
should be dismissed because he failed to comply with M. R.
Civ. P. 5.1 and M. R. App. P. 27,  requiring that he notify the
Attorney General of his constitutional challenge of §
85-2-227(4), MCA. Skinner contends that he is not challenging
the constitutionality of § 85-2-227(4), MCA, and, as
such, the procedural notice requirements do not apply in this
case. Specifically, Skinner argues that since §
85-2-227(4), MCA, does not contain a retroactivity clause as
required by § 1-2-109, MCA, it cannot be retroactively
applied to him.
In 2005, the Montana Legislature amended § 85-2-227(4),
MCA, to create a presumption of nonabandonment for all water
rights claimed for municipal use. As amended, §
85-2-227(4), MCA, now reads:
(4) In a determination of abandonment made under subsection
(3), the legislature finds that a water right that is claimed
for municipal use by a city, town, or other public or private
entity that operates a public water supply system, as defined
in 75-6-102, is presumed to not be abandoned if the city,
town, or other private or public entity has used any part of
the water right or municipal water supply and there is
admissible evidence that the city, town, or other public or
private entity also has:
(a) obtained a filtration waiver under the federal Safe
Drinking Water Act, 42 U.S.C. 300(f), et seq.;
(b) acquired, constructed, or regularly maintained diversion
or conveyance structures for the future municipal use of the
(c) conducted a formal study, prepared by a registered
professional engineer or qualified consulting firm, that
includes a specific assessment that using the water right for
municipal supply is feasible and that the amount of the ...