UNITED STATES OF AMERICA (Bureau of Land Management), Claimant and Appellee,
RON KORMAN and MAXINE KORMAN, Objectors, Counter-Objectors and Appellants.
Submitted on Briefs: August 22, 2018
FROM: Montana Water Court, Cause No. 40M-230, Honorable
Douglas Ritter, Associate Water Judge.
Appellants: Bruce A. Fredrickson, Kristin L. Omvig, Rocky
Mountain Law Partners, P.C., Kalispell, Montana.
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,
McGRATH CHIEF JUSTICE.
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.
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
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.
AND FACTUAL BACKGROUND
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.
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."
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