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In re Klamert

Supreme Court of Montana

May 14, 2019

Gene J. Klamert, CLAIMANT Daniel W. Iverson; United States of America (Bureau of Land Management), OBJECTORS Ned A. Tranel, COUNTEROBJECTOR Gene J. Klamert; Wilks Ranch Montana LTD., NOTICE OF INTENT TO APPEAR

          Submitted on Briefs: March 13, 2019

          APPEAL FROM: Montana Water Court, Case No. 40B-1 Honorable Douglas Ritter, Associate Water Judge

          For Appellant Daniel W. Iverson: James A. Hubble; Oliver J. Urick, Hubble Law Firm, PLLP, Stanford, Montana

          For Appellant Wilks Ranch Montana, LTD: Abigail R. Brown, ARB Law Group, Helena, Montana

          Michael J. L. Cusick, Cusick, Farve, Mattick & Refling, P.C., Bozeman, Montana

          For Appellee: Jo Messex Casey, Hendrickson Law Firm, Billings, Montana

          Breeann M. Johnson, Western Roots Law, PLLC, Belgrade, Montana

          OPINION

          Mike McGrath Chief Justice.

         ¶1 Daniel Iverson and Wilks Ranch Montana, LTD (Wilks Ranch) appeal from a Montana Water Court order holding they failed to prove a long period of continuous nonuse and therefore failed to show Gene Klamert or his predecessors' presumed intent to abandon the water rights. We affirm.

         ¶2 We restate the issues on appeal as follows:

1. Whether the Water Court erred in concluding that Wilks Ranch and Iverson failed to establish a continuous period of nonuse.
2. Whether failure to assert water rights through the water commissioner is the equivalent of nonuse.
3. Whether the Water Court erred in not addressing the issue of partial abandonment.
4. Whether the Water Court erred in concluding the appropriate remedy for Wilks Ranch and Iverson would be to file a dissatisfied water user complaint or pursue contempt proceedings.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 Gene Klamert currently holds five decreed irrigation rights for diversion from Flatwillow Creek, all of which represent water rights originally decreed in Fraser v. Shields et al., No. 764 (10th Jud. Dist. Petroleum Cty. Sept. 26, 1953) (hereinafter Fraser decree). The Flatwillow Creek basin, with its headwaters in the Big Snowy Mountains, is approximately forty-seven miles long, six miles wide, and was described in testimony as "an all or nothing creek" that is susceptible to drought because it lacks a large, high elevation catchment. All five of Klamert's claims share the same points of diversion and place of use and include two issue remarks indicating that fewer acres were irrigated than claimed. Below are the priority dates and flow rates for each claim:

Claim

Priority Date

Flow Rate

40B 9163-00

April 1, 1900

4.00 cfs

40B 9164-00

July 19, 1895

5.00 cfs

40B 9165-00

July 19, 1895

5.00 cfs

40B 9166-00

April 25, 1882

15.00 cfs

40B 9167-00

June 15, 1899

5.00 cfs


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