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In re Petition of Water Users of Indian Creek Water Users for Appointment of a Water Commissioner

Supreme Court of Montana

August 15, 2017

IN THE MATTER OF THE PETITION OF THE WATER USERS OF INDIAN CREEK WATER USERS FOR APPOINTMENT OF A WATER COMMISSIONER.
v.
QUIRK CATTLE COMPANY, Respondent and Appellee. MELANIE J. KNADLER, Personal Representative of the Estate of PEARL JANE HARK, Interested Party and Appellant,

          Submitted on Briefs: June 21, 2017

         APPEAL FROM: Montana Water Court, Cause No. WC-2016-02 Honorable Russ McElyea, Chief Water Judge

          For Appellant: Jacqueline R. Papez, Jack G. Connors, Doney Crowley, P.C., Helena, Montana

          For Appellee: Scott D. Hagel, Crowley Fleck PLLP, Kalispell, Montana

          OPINION

          JIM RICE JUSTICE.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 The water right issue between Pearl J. Hark (Hark) and Quirk Cattle Company (QCC) dates back at least thirty years. Separately, Hark and QCC hold three of the senior water right claims on Indian Creek: (1) QCC's 1884 claim for 5 cfs, 76D 118113-00 (QCC's 1884 Claim); (2) Hark's 1890 claim for 1.25 cfs, 76D 140172-00 (Hark's 1890 Claim); and (3) QCC's 1894 claim for 7.5 cfs, 76D 118111-00 (QCC's 1894 Claim). Central to this dispute is the priority between the latter two claims. QCC's 1884 Claim has never been disputed by Hark.

         ¶3 In 1984, the Water Court issued the Kootenai River Temporary Preliminary Decree for Basin 76D. QCC objected to Hark's 1890 Claim on the basis of priority. However, on February 26, 1985, QCC and Hark entered into a Water Use Agreement (Agreement), which stated:

[W]hile the parties recognize the first and senior appropriative rights of the Quirk Cattle Company in and to the waters of Indian Creek and the ditch and pipeline rights of the Quirk Cattle Company, the parties and their predecessors in interest have historically shared the waters of Indian Creek and are desirous of providing for their continued cooperation and sharing of the waters of Indian Creek in accordance with those established practices[.]

         Except for further Whereas Clauses, the Agreement stated in full:

NOW, THEREFORE, in consideration of the respective rights of the parties and the mutual promises and agreements hereinafter set forth, the parties hereby agree as follows:
1. That the Quirk Cattle Company has the senior and first appropriative right to the waters of Indian Creek, both through filed appropriations and historic and long-continued use.
2. That the Quirk Cattle Company has the right to appropriate all of the waters of Indian Creek through its ditch and pipeline referred to hereinabove, and does so appropriate all of the waters of Indian Creek, during conditions of low water.
3. That as the volume of the flow of the waters of Indian Creek increases, the parties have historically shared the waters of Indian Creek ...

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