                                                                                      12/06/2016


                                      DA 16-0071
                                                                                  Case Number: DA 16-0071

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2016 MT 319N



RON KORMAN and MAXINE KORMAN,

         Objectors; Counter-
         Objectors and Appellants.



APPEAL FROM:      Montana Water Court, Cause No. 40M-71
                  Honorable Russ McElyea, Chief Water Judge


COUNSEL OF RECORD:

           For Appellants:

                  Ron Korman (Self Represented), Maxine Korman (Self-Represented),
                  Hinsdale, Montana



                                              Submitted on Briefs: November 2, 2016

                                                        Decided: December 6, 2016


Filed:

                  __________________________________________
                                    Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Ron and Maxine Korman appeal from the Water Court’s Order Adopting Master’s

Report, filed November 19, 2015. We affirm.

¶3     The Kormans objected to their own claims in Water Court proceedings. The

Kormans assert that they own “vested” water rights and not just “existing” water rights,

and that the Water Court erred by refusing to apply that status. The Kormans also

contend that the priority dates for their various water claims should be amended to reflect

a uniform priority date of December 31, 1893. This claim is based upon their contention

that their stockwatering rights should bear the priority dating to the earliest use of open

range by ancestral free grazers.1 The Water Court affirmed the Water Master’s Report,

concluding that the Kormans had failed to show a connection between water use by the

ancestral free grazers sufficient to make the Kormans successors to water rights, if any,

that these people perfected. The Water Court changed the priority dates for some of the

Kormans’ groundwater claims, based upon the evidence the Kormans presented.

       1
         We refer to the large cattle operations in the days of the open range between
dispossession of Native Americans and the advent of homesteading as “ancestral free grazers.”
The Kormans claim to be successors in interest to these grazers and rely upon their presumed
water use as the basis for many of their claims.
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¶4     Article IX, Section 3 of the Montana Constitution provides that all “existing rights

to the use of any waters for any useful or beneficial purpose are hereby recognized and

confirmed.” (Emphasis added.) This provision expressly confirms all pre-1973 water

rights as a matter of constitutional law, and it confirms the Kormans’ existing water

rights. No other category of pre-1973 rights is provided.

¶5     The Kormans claim that their “vested” water rights are exempted from the

adjudication required of all existing water rights in Montana. If so, then the Kormans

would have a status not afforded any other existing water right holders. If the Kormans’

claimed vested right exemption were applied to all existing water right claimants, the

state-wide water right adjudication process would come to an abrupt halt. The provision

of the Constitution providing for a system for “the administration, control, and regulation

of water rights” would be rendered null and void.

¶6     It is well established that “Montana has always protected, by law and the decisions

of this Court prior to 1972, and by the Montana Constitution since 1972, any beneficial

irrigation right within the original appropriation of water.” McDonald v. State, 220

Mont. 519, 525, 722 P.2d 598, 692 (1986).           This protection extends to the actual

pre-1973 beneficial use of water and the Water Court has a duty to determine and protect

that right. McDonald, 220 Mont. at 535, 722 P.2d at 608 (Order on Rehearing). The

Montana Constitution preserves and protects rights to “such amount of water as, by

pattern of use and means of use, the owners or the predecessors put to beneficial use.”

Montana law requires that “all water rights, regardless of prior statements or claims as to

the amount, must nevertheless, to be recognized, pass the test of historical, un-abandoned

                                            3
beneficial use. . . . To that extent only the 1972 constitutional recognition of water rights

is effective and will be sustained.” McDonald, 220 Mont. at 529, 722 P.2d at 604.

Existing water rights are subject to determination in the water rights adjudication process,

and “have not been granted indefeasible status.” In the Matter of the Adjudication of the

Existing Right to the Use of Water, 253 Mont. 167, 174, 832 P.2d 1210, 1214 (1992).

The Kormans are entitled to a declaration and protection of their existing water rights.

¶7     The Kormans claim a uniform 1893 priority date for all of their stockwater claims

based upon the presence of ancestral free grazers on the land they now own. The Water

Master’s Report found: “The claimants do not know who was watering the stock, where

the stock was watered or when those appropriations first occurred.” In response to their

objections, the Water Court examined the historical record the Kormans presented. The

Water Court held that even assuming that the ancestral free grazers appropriated

stockwater prior to 1893, there was “no evidence those water rights were conveyed to the

Kormans or their predecessors.” The fact that the Kormans now own land grazed in the

nineteenth century was not sufficient to make any such appropriations appurtenant to the

land and to make them the property of the Kormans. The Water Court determined that

the Kormans were unable to show a sufficient relationship between themselves and the

ancestral free grazers to relate the present stockwater claims back to 1893. St. Onge v.

Blakley, 76 Mont. 1, 20, 245 P. 532, 538 (1926).

¶8     The Water Court found a lack of factual support for the Kormans’ claims that the

priority date for their irrigation rights should be earlier than the Kormans originally

claimed. However, the Water Court considered the evidence regarding the Kormans’

                                             4
groundwater claims and found that some changes were warranted. The Water Court

“slightly” modified the priority dates, and one claim received a 1916 priority date, a

change from the original 1950 date the Kormans initially claimed.

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the Water Court’s findings of fact are supported by substantial evidence and

the legal issues are controlled by settled law, which the Water Court correctly interpreted.

¶10    Affirmed.


                                                 /S/ MIKE McGRATH


We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON




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