TATANKA LAND & LIVESTOCK CO, LLC, and CHRIS KITTLER, Petitioner,
MONTANA SIXTH JUDICIAL DISTRICT COURT, SWEET GRASS COUNTY, MONTANA, and THE HONORABLE BRENDA R. GILBERT, Respondent.
Tatanka Land & Livestock Co, LLC, and Chris Kittler
(Tatanka), seek a writ of supervisory control over the Sixth
Judicial District Court in Sweet Grass County Cause No. DV
2013-08, Cayuse Livestock Company, Cremer Rodeo Land and
Livestock Company vs. Tatanka Land & Livestock Co., LLC
and Chris Kittler.
April 2, 2013, Cayuse Livestock Company and Cremer Rodeo Land
and Livestock (collectively "Cayuse") filed suit
against Tatanka. Cayuse alleged that Tatanka had undertaken
improvements which had damaged ditches and interfered with
Cayuse's water, ditch, and property rights. Tatanka filed
an answer, counterclaim and third-party complaint, denying
Cayuse's allegations and further asserting in part that
Cayuse had interfered with Tatanka's ditch rights, water
rights, and right to quiet enjoyment of its property.
25, 2016, Tatanka petitioned the District Court to certify
this matter to the Water Court pursuant to § 85-2-216,
MCA. After a hearing and post-hearing briefing, the District
Court denied the petition, concluding that the parties'
dispute concerned water use, water distribution, and ditch
issues, but did not render any water rights appropriate for
certification. The court looked to § 85-2-406(2)(b),
MCA, and concluded certification was unnecessary under the
statute. Because a Temporary Preliminary Decree was in effect
for the subject area of this litigation, the District Court
also relied upon a recent Order Dismissing Certification
entered by the Chief Water Judge of the Water Court, in which
that court dismissed a petition for certification where a
similar Temporary Preliminary Decree had been issued for the
subject area. Henwood v. Hodson, 2018 Mont. Water
petitions for a writ of supervisory control, arguing that the
Water Court is the only venue that can address the issues
raised. Tatanka maintains that certification of water rights
must occur before the courts can determine the parties'
legal rights in this matter. Tatanka alleges the District
Court erred because the Water Court must determine how Cayuse
may marshal its water rights so as to not adversely affect
downstream uses, and the Water Court further must determine
whether Cayuse has implied stockwatering rights. Tatanka
further contends that the District Court erred because,
rather than certifying the water rights, it relied on a
Temporary Preliminary Decree. Tatanka acknowledges that the
District Court did so by relying in part on Henwood,
but it maintains Henwood was wrongly decided.
response, Cayuse disagrees with Tatanka that any water right
or distribution controversy is at issue. It argues
Henwood is directly on point and supports the
District Court's denial of the petition for
certification. Cayuse further argues that this case is
inappropriate for supervisory control because no emergency
factors make the normal appeal process inadequate and there
is no legal question at issue within the Water Court's
jurisdiction. It points out that this litigation has been
ongoing since 2013, Tatanka did not seek certification until
2016, and Tatanka did not petition for a writ of supervisory
control until six months after the District Court denied its
petition for certification. Cayuse further asserts that it
has filed a motion to amend a water right claim in the Water
Court to clarify the place of use of an existing stockwater
right, and thus Tatanka can address any concerns raised
concerning Cayuse's stockwatering rights in that action.
control is an extraordinary remedy that may be invoked when
the case involves purely legal questions and urgent or
emergency factors make the normal appeal process inadequate.
M. R. App. P. 14(3). The case must meet one of three
additional criteria: (a) the other court is proceeding under
a mistake of law and is causing a gross injustice; (b)
constitutional issues of state-wide importance are involved;
or (c) the other court has granted or denied a motion for
substitution of a judge in a criminal case. M. R. App. P.
l4(3)(a)-(c). Whether supervisory control is appropriate is a
case-by-case decision. Stokes v. Mont. Thirteenth
Judicial Dist. Court, 2011 MT 182, ¶ 5, 361 Mont.
279, 259 P.3d 754 (citations omitted). Consistent with Rule
14(3), it is the Court's practice to refrain from
exercising supervisory control when the petitioner has an
adequate remedy of appeal. E.g., Buckles v. Seventh Jud.
Dist. Ct, No. OP 16-0517, 386 Mont. 393, 386 P.3d 545
(table) (Oct. 18, 2016); Lichte v. Mont. Eighteenth
Judicial Dist. Court, No. OP 16-0482, 385 Mont. 540, 382
P.3d 868 (table) (Aug. 24, 2016).
case, Tatanka argues that the District Court erred as a
matter of law when it denied Tatanka's petition to
certify, but it offers no argument as to why this alleged
error would render the normal appeal process inadequate. If
Tatanka has an adequate remedy of appeal, supervisory control
is not warranted.
while Tatanka maintains that Henwood was wrongly
decided, it acknowledges it is on point with the present
case. In Henwood, the Water Court dismissed a
certification action after the Sixth Judicial District, Park
County, issued a certification order in a matter involving a
dispute over distribution. The Water Court found that the
matter was not appropriate for certification because a
Temporary Preliminary Decree had been issued which tabulated
the water rights at issue. As the Water Court noted,
"District courts have jurisdiction over water
distribution controversies and the Water Court has
jurisdiction over determination of existing rights." It
explained, "The purpose of certifying water rights from
the district court to the Water Court is to enable parties to
obtain a determination of their rights in areas where the
Water Court has not yet issued a decree, or a decree has been
issued, but is not yet enforceable." The Water Court
relied upon § 85-2-406(4), MCA, which provides in part
that a Temporary Preliminary Decree is enforceable and
administrable according to its terms. It then dismissed the
certification action because it found such actions to be
inappropriate in basins where an enforceable decree already
District Court found that, as in Henwood, a
Temporary Preliminary Decree existed and thus the water
rights in the subject basin had been preliminarily decreed,
no adjudication of water rights was necessary in the present
case, and a certification action would not be appropriate
because an enforceable decree already exists. However, even
if the District Court had certified this matter to the Water
Court, under Henwood, the Water Court would have
dismissed certification. Thus, should Tatanka ultimately
appeal, the lack of certification would likely be at issue
regardless of the District Court's ruling.
determined that Tatanka has failed to demonstrate that urgent
or emergency factors make the normal appeal process
inadequate in this instance.
THEREFORE ORDERED that Tatanka's Petition for a Writ of
Supervisory Control is DENIED.
Clerk is directed to send a copy of this Order to all counsel
of record in Sweet Grass County Cause No. DV 13-08, and to
the Hon. ...