TOM PRATT and RITA RAE PRATT; PINE RIDGE, LP, Plaintiffs and Appellees,
RUSSELL E. BLALACK, Defendant and Appellant.
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.
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
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
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
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.
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.
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.
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.
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
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
Pratts' and Pine Ridge's Motion to Dismiss Appeal is
Pratts' and Pine Ridge's Request for Sanctions is
Blalack's Petition for an Out-of-Time Appeal is DENIED
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 ...