                                                                                       September 16 2014


                                         DA 13-0489

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2014 MT 250



DONALD C. MARKS,

               Objector and Appellant,

         v.

71 RANCH, LP,

               Claimant and Appellee.


APPEAL FROM:           Water Court of the State of Montana,
                       Cause No. 41I-398, Honorable C. Bruce Loble, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Donald C. Marks, self-represented; Helena, Montana

                For Appellee:

                       John P. Poston, Attorney at Law; Helena, Montana

                       W. John Tietz, Mark R. Taylor; Browning, Kaleczyc, Berry & Hoven,
                       P.C.; Helena, Montana



                                                   Submitted on Briefs: August 6, 2014
                                                              Decided: September 16, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Donald C. Marks (Marks) appeals from the decision of the Montana Water Court

(Water Court), dismissing his objection to the claimed point of diversion and place of use

for water rights owned by 71 Ranch, LP (71 Ranch). We affirm.

¶2     We address the following issue on appeal:

¶3     Did the Water Court err by concluding that Marks failed to present sufficient
evidence to rebut 71 Ranch’s claimed point of diversion and place of use for its water
rights?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     This case involves a dispute over the purported change in the point of diversion

and place of use for four water rights (Creek Rights) located on Confederate Creek and

held by 71 Ranch.1 The Creek Rights have a priority date of 1866 and comprise a

combined flow rate of 385 miner’s inches. Confederate Creek flows from the northeast

to the southwest and is wholly located within Broadwater County, Montana.

¶5     In 1940, the Creek Rights were decreed (Rankin Decree) to Wellington Rankin

(Rankin). The Rankin Decree identified a point of diversion and place of use for the

Creek Rights that coincides with a location on the lower portion of Confederate Creek

(downstream location).2 The Rankin Decree described Confederate Creek as a single,

unified water system.


1
  The respective Creek Rights are Water Right Nos. 41I 89265-00, 41I 89270-00, 41I 89271-00,
and 41I 89272-00.
2
  The legal description of the points of diversion are in Broadwater County, in the NENE of
Section 6, Township 8 North, Range 2 East and Section 29, Township 9 North, Range 2 East,
P.M.M.
                                           2
¶6     In 1950, Rankin sold the property at the downstream location that had served as

the place of use for the Creek Rights to the United States. Rankin, however, properly

severed and retained the Creek Rights from the appurtenant land. In the mid-1950s, the

United States constructed Canyon Ferry Reservoir and flooded the former place of use.

The property has remained inundated.

¶7     In 1982, Louise R. Galt (Galt), the surviving spouse and successor in interest to

Rankin, and predecessor in interest to 71 Ranch, filed Statements of Claim for the Creek

Rights. Galt described a new point of diversion and place of use for the Creek Rights.

She identified a location on the upper portion of Confederate Creek (upstream location),3

approximately 3 miles upstream from the former downstream location.

¶8     In addition to the Creek Rights, Galt has historically owned numerous other water

rights on Confederate Creek (Galt’s Confederate Creek Rights).          Although Galt’s

Confederate Creek Rights are not the subject of this appeal, many of her rights are

situated at the upstream location. Galt’s Statements of Claim describe overlapping places

of use for those rights and the Creek Rights.

¶9     Marks timely filed an objection to the Creek Rights’ place of use and point of

diversion. Marks is a water rights holder on Confederate Creek; he is positioned between

the claimed upstream location and the former downstream location. Marks’ water rights

are junior to the Creek Rights.




3
 The legal description of the point of diversion is in Broadwater County, in the SWSENW of
Section 16, Township 9 North, Range 2 East, P.M.M.
                                           3
¶10   In 2002, the matter proceeded to hearing before the Water Master. The Water

Master entered findings of facts and conclusions of law, dismissing Marks’ objection.

The Water Master determined the “clear implication is that the points of diversion and/or

places of use for these rights were changed between the issuance of the Rankin Decree

and July 1, 1973” from the downstream location to the upstream location. The Water

Master concluded that Marks had failed to carry his burden to rebut the prima facie proof

of content that the Statements of Claim constituted pursuant to § 85-2-227(1), MCA.

¶11   Marks objected to the Water Master’s findings and renewed his arguments before

the Water Court. The Water Court affirmed all of the Water Master’s findings of fact and

conclusion of law with respect to the Creek Rights. The Water Court determined the

record supported the Water Master’s conclusion that the point of diversion and place of

use for the Creek Rights had been properly moved prior to July 1, 1973.

                              STANDARD OF REVIEW

¶12   In cases involving a Water Master’s report and a Water Court’s opinion, there are

two relevant standards of review: “the standard the water judge applies to the Water

Master’s report and the standard we apply to the Water Court’s opinion.” Heavirland v.

State, 2013 MT 313, ¶ 13, 372 Mont. 300, 311 P.3d 813. “[T]he Water Court reviews the

Water Master’s findings of fact for clear error and the Water Master’s conclusions of law

for correctness.” Heavirland, ¶ 14; see also Rule 23, W. R. Adj. R. To determine

whether factual findings are clearly erroneous, a three-prong test is applied: (1) whether

substantial evidence supports the findings of fact; (2) whether the fact finder


                                        4
misapprehended the effect of the evidence; and (3) whether a review of the record leaves

the Court with the definite and firm conviction that a mistake has been committed.

Weinheimer Ranch, Inc. v. Pospisil, 2013 MT 87, ¶ 27, 369 Mont. 419, 299 P.3d 327.

¶13    We apply the same standards of review to the Water Court as we do to an appeal

from a district court. “Whether the standard of review was applied correctly is a question

of law.” Heavirland, ¶ 15. Therefore, the Water Court’s decision is reviewed under a de

novo standard to determine whether it correctly applied the clear error standard of review

to the Water Master’s findings of fact, and whether its conclusions of law are correct.

Heavirland, ¶ 15.

                                       DISCUSSION

¶14 Did the Water Court err by concluding that Marks failed to present sufficient
evidence to rebut 71 Ranch’s claimed point of diversion and place of use for its water
rights?

¶15    Marks challenges the Water Court’s conclusion that he failed to present sufficient

evidence before the Water Master to rebut 71 Ranch’s claimed point of diversion and

place of use for the Creek Rights. Pursuant to § 85-2-227(1), MCA, “a claim of an

existing right . . . constitutes prima facie proof of its content until the issuance of a final

decree.” The effect of § 85-2-227(1), MCA is to place the burden of proof on the

objector “to prove by a preponderance of the evidence that the elements of the original

claim do not accurately reflect the beneficial use of the water right as it existed prior to

July 1, 1973.” Nelson v. Brooks, 2014 MT 120, ¶ 37, 375 Mont. 86, 329 P.3d 558

(internal quotations omitted). Objections to the validity of a water right as it existed prior


                                           5
to July 1, 1973, are governed by pre-1973 law. Axtell v. M.S. Consulting, 1998 MT 64,

¶ 25, 288 Mont. 150, 955 P.2d 1362.

¶16     Galt properly filed Statements of Claim under § 85-2-227(1), MCA. Galt’s filed

claim thus constituted prima facie evidence that the information contained in the claim is

true.   Weinheimer, ¶ 28 (citations omitted).      It was Marks’ burden to show by a

preponderance of the evidence that the information in the claim is incorrect. Weinheimer,

¶ 28 (citations omitted). Further, the preponderance of the evidence standard applies to

“‘every assertion that a claim is incorrect . . . .’” Weinheimer, ¶ 21 (quoting Rule 19, W.

R. Adj. R.).

¶17     Marks advances three assertions in support of his objection to the claimed point of

diversion and place of use for the Creek Rights. First, Marks argues the Creek Rights

were not beneficially used at the upstream location prior to July 1, 1973. Second, Marks

argues the upper and lower portions of Confederate Creek have different “water supply

sources.” Lastly, Marks argues the Creek Rights were abandoned. We address each

argument in turn.

        (1)    Beneficial Use

¶18     Marks challenges the Water Master’s finding that he failed to present sufficient

evidence to demonstrate the Creek Rights were not beneficially used at the upstream

location prior to July 1, 1973. Prior to 1973, an appropriator could change the place of

use and point of diversion of a water right so long as the appropriator beneficially used

the water right at the new location and did not cause injury to other appropriators.


                                          6
Section 89-803, R.C.M. 1947 (repealed in 1973). Marks concedes he was not injured

prior to 1973.

¶19    Instead, Marks contends insufficient water was delivered to the upstream location

to justify the Water Master’s finding that the Creek Rights were beneficially used. To

support his contention, Marks introduced records of the Confederate Creek water

commissioner for various days in June 1957, June 1958, June and July 1959, the entire

irrigation season in 1962, and various days in May, June, and July of 1966. The records

indicate that on none of the respective days was there more than 360 miner’s inches of

water delivered to the upstream location. Marks also testified that Galt’s Confederate

Creek Rights situated at the upstream location total 450 miner’s inches. Marks theorizes

there would have been considerably more water delivered to the upstream location if the

Creek Rights had been beneficially used there, i.e., enough water for Galt’s Confederate

Creek Rights that are situated at the upstream location (totaling 450 miner’s inches), in

addition to the Creek Rights (totaling 385 miner’s inches), instead of the mere 360

miner’s inches actually delivered.

¶20    The Water Master reasoned that “the water commissioner records alone are of

limited value in proving the maximum flow rate actually diverted during a given season

or proving actual nonuse of particular water rights.” The Master outlined several reasons

for this finding: the records do not include the total amount of water delivered during the

irrigation season; the records do not include the diversions made during high flows when

no water commissioner was appointed; the records do not disclose the stream flow


                                         7
conditions to determine whether more than the allocated amount was available in

Confederate Creek; and, lastly, the records do not disclose whether the delivery of more

water was ever called on or refused.

¶21    We conclude the Water Master did not misinterpret the effect of the water

commissioner records. The records offer little to demonstrate the historical amount of

water utilized at the upstream location. As the Water Master noted, because “water

commissioners are usually appointed when there is insufficient flow to satisfy all rights

on a source, it is implicit that once a water commissioner is appointed, water rights will

start being shut off, so the quantities listed on water commissioner records are usually the

quantities in times of shortage.” See, e.g., Quigley v. McIntosh, 110 Mont. 495, 103 P.2d

1067 (1940). Consequently, it was a reasonable assumption that the records reflected

flow during low flow years. Thus, given the complete absence of any flow data in the

years 1950-1956, 1960-1961, 1963-1965, and 1967-1973, the lack of data signifying total

flow volume during any irrigation season, and the failure to submit any evidence

indicating that more water was or was not available during the days recorded, the Water

Master did not err by determining that the records had little probative value concerning

whether the Creek Rights were beneficially used at the upstream location.

¶22    Our review of the record convinces us that substantial evidence supports the Water

Master’s finding and does not leave us with a definite and firm conviction that a mistake

was committed.       The Water Court appropriately affirmed the Water Master’s




                                         8
determination that Marks failed to carry his burden to rebut the prima facie proof that the

Creek Rights were beneficially used at the upstream location prior to July 1, 1973.

          (2)      Water Sources

¶23       Marks challenges the Water Master’s determination that he failed to present

sufficient evidence that the upper portion of Confederate Creek and the lower portion of

Confederate Creek are separate water sources.4

¶24       Marks’ testimony did not clearly delineate the precise location of the end of the

upper portion or the beginning of lower portion of Confederate Creek. Instead, Marks

testified the division of the two portions is in the vicinity of Highway 284. He testified

that Highway 284 crosses Confederate Creek above the lower portion of Confederate

Creek. He also testified Confederate Creek dries up around Highway 284 and the area

usually stays dry during the summer months.

¶25       Tom O’Donnell (O’Donnell), the 2002 water commissioner, testified on Marks’

behalf.         O’Donnell testified that Confederate Creek recharges somewhere between

Highway 284 and Canyon Ferry Reservoir. However, O’Donnell’s testimony seemed to

conflict with Marks’ testimony as O’Donnell conceded that water does flow past

Highway 284 during the spring flood period.




4
  Marks does not elaborate on the legal import of his assertion that Confederate Creek has more
than one water source. He offers that the lower portion is “a recharging of the creek waters from
natural springs” and that “[i]ts waters cannot be moved from the lower source to the upper source
by natural means.” The Water Master noted an absence of “evidence of two hydrologically
distinct sources of water and legal authority that it would have been improper to change from a
lower supply to an upper supply . . . .”
                                              9
¶26   The Water Master properly afforded the Rankin Decree significant weight. “A

decree of a court stands as an absolute finality, not merely as to the conclusions

expressed, but as to everything directly or implicitly involved in reaching them.”

Missoula Light & Water Co. v. Hughes, 106 Mont. 355, 366, 77 P.2d 1041, 1047 (1938)

(internal quotations omitted). The Rankin Decree described Confederate Creek as a

single, unified water system. The Rankin Decree did not separately decree water rights

for an upper and lower Confederate Creek, but instead as a single water system.

¶27   The Rankin Decree provides the most objective evidence of Confederate Creek’s

characteristics prior to July 1, 1973. The Rankin Decree was issued in 1940. Marks

moved to the Confederate Creek area in 1974 and O’Donnell testified he had no

knowledge of how Confederate Creek operated prior to 1973.           Neither Marks nor

O’Donnell profess to be hydrologists and neither measured the water below Highway

284. Marks presented no evidence as to the actual amount of water diverted through the

upper and lower portions of Confederate Creek. In light of the Rankin Decree and in the

absence of any reliable evidence that the upper and lower portions of Confederate Creek

are sourced separately, the Water Master correctly comprehended the evidence.

Substantial evidence supports the Water Master’s findings and our review of the record

does not leave us with a definite and firm conviction that a mistake has been made. The

Water Court did not err by upholding the Water Master’s findings.




                                       10
      (3)    Abandonment

¶28   Marks challenges the Water Master’s determination that he failed to present

sufficient evidence to demonstrate that the Creek Rights were abandoned. Once an

appropriator abandons a water right, the right ceases. Holmstrom Land Co. v. Meagher

Cnty. Newlan Creek Water Dist., 185 Mont. 409, 423, 605 P.2d 1060, 1068 (1979)

(citation omitted). A finding of abandonment requires the showing of two elements:

“nonuse and intent to abandon.” Heavirland, ¶ 23 (citation omitted).

¶29   Marks’ argument that the Creek Rights were abandoned is intertwined with his

earlier argument that the Creek Rights were not beneficially used at the upstream

location. Marks argues that, because the Creek Rights were not beneficially used at the

upstream location, and because 71 Ranch does not claim use of the rights elsewhere, the

rights were dormant for over twenty years and therefore should be presumed abandoned.

To establish non-use of the Creek Rights, the only evidence introduced by Marks were

the same water commissioner records he offered to prove that the Creek Rights had not

been beneficially used.

¶30   As we have explained herein, the water commissioner records are inadequate,

standing alone, to prove non-use, and Marks’ abandonment argument necessarily fails.

We are not left with a definite and firm conviction that the Water Master reached a

mistaken conclusion. The Water Court appropriately determined that Marks failed to

present sufficient evidence to demonstrate the Creek Rights were abandoned.




                                       11
¶31   The Water Court correctly concluded that Marks failed to present sufficient

evidence to contradict 71 Ranch’s claimed point of diversion and place of use for its

water rights under applicable pre-1973 water law.     The Water Court’s opinion is

affirmed.



                                             /S/ JIM RICE

We concur:

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




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