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Tatanka Land & Livestock Co, LLC v. Montana Sixth Judicial District Court, Sweet Grass County

Supreme Court of Montana

April 30, 2019

TATANKA LAND & LIVESTOCK CO, LLC, and CHRIS KITTLER, Petitioner,
v.
MONTANA SIXTH JUDICIAL DISTRICT COURT, SWEET GRASS COUNTY, MONTANA, and THE HONORABLE BRENDA R. GILBERT, Respondent.

          ORDER

         Petitioners, 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.

         On 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.

         On May 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 LEXIS 1.

         Tatanka 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.

         In 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.

         Supervisory 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).

         In this 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.

         Moreover, 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 exists.

         The 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.

         We have determined that Tatanka has failed to demonstrate that urgent or emergency factors make the normal appeal process inadequate in this instance.

         IT IS THEREFORE ORDERED that Tatanka's Petition for a Writ of Supervisory Control is DENIED.

         The 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. ...


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