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Peters v. United States

Supreme Court of Montana

January 8, 2019

ROGER D. PETERS and CARRIE A. PETERS, Claimants and Appellants,
v.
UNITED STATES OF AMERICA (Bureau of Reclamation), Objector and Appellee.

          Submitted on Briefs: November 14, 2018

          APPEAL FROM: Montana Water Court, Case No. 41A-79 Honorable Douglas Ritter, Associate Water Judge

          For Appellants: Roger D. Peters and Carrie A. Peters, Self-Represented, Dillon, Montana

          For Appellee: Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, John L. Smeltzer, Joseph H. Kim, Katherine W. Hazard, Environment & Natural Resources Division, United States Department of Justice, Washington, District of Columbia

          BETH BAKER 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 Claimants Roger and Carrie Peters (collectively "Peters") appeal an order of the Montana Water Court adopting in large part the Water Master's report and recommendations on two water rights claims for flood irrigation from Nip and Tuck Creek in Beaverhead County. Both claims-one owned by Peters and one owned by the State of Montana, Board of Land Commissioners-received decree-exceeded issue remarks. The United States Bureau of Reclamation ("BOR") filed an objection to Peters's claim, Claim 41A 40254-00. The parties resolved all issues except for Peters's place of use and acres irrigated. Following an evidentiary hearing, the Water Master issued a report addressing the remaining issues, all of which were between Peters and BOR. Peters objected, BOR responded, and the Water Court considered the matter on the existing record. The Water Court adopted the Master's report and recommendations, including the number of acres irrigated, but modified the place of use. After Peters appealed, the State of Montana, Board of Land Commissioners filed a notice that it takes no position in the appeal. BOR did not cross-appeal the Water Court's order and has briefed the case as Appellee.[1]

         ¶3 Peters's predecessor in interest timely filed a statement of claim for flood irrigation of 135 acres located in the W2W2 of Section 24, T 11S, R 14W in Beaverhead County. During the adjudication process, Peters moved to amend the claim to reduce the number of irrigated acres to 93. This included ten acres in Section 13, T 11S, R 14W, and 83 acres in Section 24. BOR objected to both the number of acres and the place of use. After hearing evidence from both parties, the Water Master adopted the acreage calculated by BOR's expert, Kraig Van Voast, rejecting the opinion of Peters's expert, Julie Merritt. The Master explained:

The BOR conducted an extensive analysis of more than a dozen aerial photographs and was able to identify a clear pattern of historical irrigation on the claimed place of use, consisting of 58 acres located in the W2W2 of Section 24. The BOR's analysis and its site visit confirmed that while flood waters may be applied across a slightly larger area, there are some areas within the claimed place of use that are either non-irrigated or simply do not benefit from these floodwaters.

         ¶4 The Master noted that Merritt's analysis was more limited and that she based her assessment of additional acres on areas "hypothetically susceptible to flood irrigation" rather than confirmation of any historical irrigation. He recommended that Peters's claim be allocated 58 acres in Section 24 and no acres in Section 13, which was not part of the original claimed place of use.

         ¶5 On review of Peters's objections to the Master's Report, by which time Peters were self-represented, the Water Court denied their objection to BOR's demonstrative hearing exhibits and their attempt to submit into the record additional photographs, maps, and materials to support their objections. On the record submitted to the Water Master, the Water Court held that the Master correctly determined the historically irrigated acres to be 58 acres in Section 24 and none in Section 13, but it altered the place of use. Although the Water Court agreed that the Master's recommendations for place of use and acres irrigated were based on substantial evidence, the court harbored a "definite and firm conviction" that the Master erred in his location of the historical place of use. Relying on a 1955 aerial photograph referenced in the Master's Report, the Water Court concluded that the evidence the Master used to exclude the area east of a dotted line shown on that photograph was speculative:

The actual meaning of the dotted line on the 1955 aerial photograph is not clear. Since the State never completed a water resources survey for Beaverhead County, placing significant weight on these markings has little credibility. The BOR agrees the area was historically irrigated but [argues that it] must have used some other source of water. However, no alternate source was identified.

         (Internal citation omitted). The Water Court observed that Roger Peters was using the same historical ditches for irrigated pasture on both sides of the dotted line, which "is in the same field."

         ¶6 The Water Court also faulted the Master's decision to include acres in the northern portion of the disputed place of use in Section 24. Noting that the DNRC's claim examination identified fewer than 40 acres irrigated in 1955 and 1979, the court found that all of the irrigation was in the southeastern portion of the disputed place of use in Section 24. It relied on aerial photographs dating from 1942 until 1979, which the court concluded "all show ...


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