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Pratt v. Blalack

Supreme Court of Montana

February 19, 2019

TOM PRATT and RITA RAE PRATT; PINE RIDGE, LP, Plaintiffs and Appellees,
v.
RUSSELL E. BLALACK, Defendant and Appellant.

          ORDER

         Representing himself, Russell E. Blalack has filed a petition for an out-of-time appeal. Through counsel, Tom Pratt, Rita Rae Pratt, and Pine Ridge, LP (hereinafter the Pratts and Pine Ridge) have filed several attachments along with a motion to dismiss Blalack's petition because it is not compliant with this Court's rules and has not demonstrated extraordinary circumstances. M. R. App. P. 4(6). Blalack has not filed a response to the motion to dismiss.

         As grounds, Blalack indicates that he discussed filing a timely appeal with his attorney but that his attorney discouraged it. He states that his former attorney told him that any appeal "would be prohibitively expensive." Blalack further states that as soon as he learned that he could proceed as a self-represented litigant, he filed his petition. He notes that the Water Court misapplied Murray v. Tingley, 20 Mont. 260, 50 P. 723 (1897), to his situation.

         Blalack seeks to appeal a September 19, 2018 Montana Water Court Findings of Fact, Conclusions of Law, and Order Closing Case upon a certified question, pursuant to § 85-2-406(2)(b), MCA, from the Twenty-Second Judicial District Court, Big Horn County. He includes a copy of the Order with his petition. The Pratts and Pine Ridge are the plaintiffs in the District Court's underlying matter. The Pratts and Pine Ridge developed and used water from a spring in the S WSW quarter section of section 23, TIN, R3 IE in Big Horn County. Pine Ridge is owned and controlled by members of the Fisher family.

         The Water Court determined that Blalack's claim for a stock water right was not valid because no evidence existed to support his claim. In Murray v. Tingley, a water right could be obtained prior to July 1, 1973, by diverting and applying water to beneficial use. 20 Mont. 268-69, 50 P. 723, 725 (1897). The Water Court found that Blalack acquired land in section 26 in 1992 and that he only constructed a stock tank on his land in 2017. The court added that Blalack filed claim 43P 30110798 for an exempt stock right, pursuant to § 85-2-222, MCA, on April 3, 2017, and that Blalack did not divert or use water from the spring any time prior to construction of the stock tank. The Water Court specifically found:

Blalack did not use water from the spring until 2017 when he cut into the pipeline running to [the Pratts'] land. Blalack's predecessors did not use water from the spring prior to July 1, 1973, which is the date the Water Use Act became effective. After that date, new water rights could only be obtained by filing for and receiving a permit from the DNRC. There is no evidence Blalack obtained a permit authorizing the use of water he began in 2017. Claim 43P 30110798 is invalid because there is no evidence of water use by Blalack's predecessors before July 1, 1973. Blalack's belief that he owns a water right in the spring originating in the SWSW of section 23 is mistaken. The Fishers' use of section 26 for grazing did not entitle Blalack to claim ownership of a water right from the spring.

         Findings of Fact, Conclusions of Law, and Order Closing Case, at 7 (Mont. Water Ct, Sept. 19, 2018). The Water Court concluded that Blalack's claim was not a valid water right and terminated his claim.

         The Pratts and Pine Ridge respond that Blalack's petition should be denied and dismissed. They point out that, pursuant to M. R. App. P. 4(4)(d), Blalack failed to certify a copy of his petition to the Water Court and other counsel of record in the Water Court Case No. WC-2017-05. They further point out that Blalack does not demonstrate extraordinary circumstances and that he failed to support his petition with affidavits, records, and other evidence, as required by M. R. App. P. 4(6). They lastly dispute Blalack's claim about his counsel's failure to file a timely appeal after discussion because his counsel only recently moved to withdraw, on January 31, 2019, in the District Court.

         The Pratts and Pine Ridge provide more background, explaining that they initiated a proceeding for a preliminary injunction in 2017 against Blalack for cutting into their pipeline, built in 1961, and for diverting their appropriated stock water without the Pratts' consent or knowledge. Following the Water Court's decision, they add that the District Court lifted its previously entered stay in the water distribution controversy. The Pratts state that last year they also sought a statutory action seeking damages for interference with their longstanding ditch right easement and that the District Court consolidated both matters. They point out that their consolidated case is pending and discovery is ongoing in the Big Horn County District Court.

         The Pratts and Pine Ridge also include a copy of a 1998 decision from the Department of Natural Resources and Conservation (DNRC) after a hearing on Blalack's application for change of appropriation water right, pursuant to § 85-2-402(2), MCA. The DNRC found that Blalack did not own the property where the existing water right system is located, nor did he own any of the water right system, and that he never owned any cattle. The DNRC concluded that Blalack does not have an underlying water right to change, and that he has not established the existence of a water right. The Pratts and Pine Ridge, based on the foregoing, move this Court for dismissal of this petition for an out-of-time appeal and request sanctions, such as costs and attorney's fees, be imposed.

         M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice[.]" Blalack has not demonstrated extraordinary circumstances. Blalack will not be subjected to a gross injustice with the denial of his petition. After the District Court issues its final judgment in the pending proceeding, Blalack has the option of seeking a timely appeal in this Court. M. R. App. P. 4(5)(a)(i). Accordingly, IT IS ORDERED that:

         1. The Pratts' and Pine Ridge's Motion to Dismiss Appeal is GRANTED;

         2. The Pratts' and Pine Ridge's Request for Sanctions is DENIED; and

         3. Blalack's Petition for an Out-of-Time Appeal is DENIED and DISMISSED.

         The Clerk is directed to provide a copy of this Order to, the Honorable Russell McElyea, Chief Water Judge, Montana Water Court; to Anna Burton, Clerk of Court, under Case No. WC-2017-05; to the Honorable Blair Jones, Twenty-Second Judicial District Court, Big Horn County; to Karen J. Yarlott, Clerk of Court, Big Horn County, under Cause ...


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