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United States v. Korman

Supreme Court of Montana

September 18, 2018

UNITED STATES OF AMERICA (Bureau of Land Management), Claimant and Appellee,
v.
RON KORMAN and MAXINE KORMAN, Objectors, Counter-Objectors and Appellants.

          Submitted on Briefs: August 22, 2018

          APPEAL FROM: Montana Water Court, Cause No. 40M-230, Honorable Douglas Ritter, Associate Water Judge.

          For Appellants: Bruce A. Fredrickson, Kristin L. Omvig, Rocky Mountain Law Partners, P.C., Kalispell, Montana.

          For Appellee: Roselyn Rennie, U.S. Department of the Interior, Office of the Solicitor, Billings, Montana.

          Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, John L. Smeltzer, James J. Dubois, United States Department of Justice, Washington, DC.

          OPINION

          MIKE McGRATH CHIEF JUSTICE.

         ¶1 This is an appeal from a Water Court order granting the United States Bureau of Land Management's (BLM) Motion for Summary Judgment. We affirm.

         ¶2 We restate the issues on appeal as follows:

1. Whether the Water Court correctly determined that the Kormans forfeited interests claimed for stockwater use in the Chevy Reservoir and Poker Reservoir claims 40M 75208-00 and 40M 75220-00.
2. Whether the Water Court erred when it determined that wildlife claims 40M 75209-00 and 40M 75221-00 were valid claims that did not expand the original appropriation.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 This Case involves the United States' water rights in two small reservoirs-the Chevy and Poker Reservoirs-on federal grazing lands within Montana Water Basin 40M. Water Court case 40M-230 is made up of forty-six stock and wildlife claims filed by the BLM on twenty-three reservoirs, all located on federal land. The claims were filed for each reservoir as multiple uses of the same historical appropriation, specifically for stock and wildlife uses. Appellants Ron and Maxine Korman (the Kormans) objected to all forty-six BLM claims.

         ¶4 The Kormans were assigned the Hammond Brothers' interests in grazing permits and range improvements on the Chevy and Poker Reservoirs in 1977. In 1960, the Hammond Brothers had filed a Range Improvement Application to construct the Chevy Reservoir on lands they occupied by permit. The BLM approved this application and a second application in 1966 to construct the Poker Reservoir. The reservoirs were constructed for the purpose of watering livestock on the federal range. However, the BLM also considered the impacts on wildlife, as reflected in 1973 job inspection records. In 1982, the BLM and Kormans executed a Cooperative Agreement for Range Improvements, which replaced the 1977 assignment. A provision within the Agreement states "Title to the said improvements with all labor and materials furnished by either party and used in the construction and maintenance thereof, shall be in the United States of America."

         ¶5 On August 11, 2015, the Water Court issued an Order Granting Partial Summary Judgment to the BLM on thirty-four of the forty-six claims and dismissed the Kormans' objections. The remaining claims were either dismissed or remanded to the water master for further proceedings. The Kormans appealed the Water Court's dismissal of those objections to this Court. In United States v. Korman, No. DA 16-0019, 2016 MT 351N, 2016 Mont. LEXIS 1113 (Korman I), this Court affirmed the Water Court, citing BLM v. Barthelmess Ranch Corp., 2016 MT 348, 386 Mont. 121, 386 P.3d 952, as authority for rejecting the Kormans' objections. In Barthelmess, we held that there is "no basis in fact ...


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