                                                                                               09/06/2016
                                          DA 15-0760

              IN THE SUPREME COURT OF THE STATE OF MONTANA                                 Case Number: DA 15-0760



                                        2016 MT 225N


BARBARA J. BENSON and DAVID L. NEUMANN,

               Claimants and Appellants,

         v.

KAREN HOPSEKER, MOLLIE KIERAN,
LISEL IRONS, BONNIE DAWSON, RONALD
DAWSON, and FRANK CAVANAUGH,

               Objectors and Appellees.


APPEAL FROM:           Water Court of the State of Montana,
                       Cause No. 76C-A2; Honorable Douglas Ritter, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Colleen A. Coyle, Hertha L. Lund, Julia J. Brown, Lund Law, PLLC
                       Bozeman, Montana

                For Appellees:

                       Karen Hopseker, self-represented, Newport, Oregon

                       Mollie Kieran, Lisel Irons, self-represented, Troy, Montana

                       Frank Cavanaugh, self-represented, Wimauma, Florida

                       Bonnie Dawson, Ronald Dawson, self-represented, Sequim, Washington



                                                    Submitted on Briefs: August 17, 2016

                                                                Decided: September 6, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker 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     Claimants Barbara Benson and David Neumann appeal a Water Court ruling on

their motions to amend their Fisher River Basin water right claims—76C 15176-00

(Claim 76) and 76C 15177-00 (Claim 77)—and its resolution of the Appellees’

objections.1

¶3     The original appropriations for Claim 76 and Claim 77 were filed in 1930. In

1984 the claims were included in the Temporary Preliminary Decree for the Fisher River

Basin and received no initial objections. Claimants filed their first motion to amend the

water right claims in 2007. Objectors filed a number of objections. The Master held a

hearing on the motion and objections in 2010. After the hearing, the Master determined

that Claimants were requesting amendments that went beyond the original motion. The

Master ordered Claimants to file an amended motion and to provide notice of all the

amendments they were seeking.

¶4     Claimants filed a second amended motion to amend in 2011 that requested several

changes to Claim 76 as well as implied water right claims for stock and domestic use


1
 Appellees are Karen Hopseker, Mollie Kieran, Lisel Irons, Bonnie Dawson, Ron Dawson, and
Frank Cavanaugh, referred to collectively as “Objectors.”
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from the Pleasant Valley Fisher River and an implied water right claim for historical

irrigation use from Spring Creek.

¶5       Following a hearing, the Master, at the request of the parties, directed the Montana

Department of Natural Resources and Conservation to conduct a field investigation.

Both parties filed responses to the field investigation report. The Master issued a report

in February 2014. The Master recommended quantified annual volumes for both claims:

487.00 acre-feet for Claim 76 and 38.00 acre-feet for Claim 77. The Master declined to

recommend generating implied claims from either the Pleasant Valley Fisher River or

Spring Creek.       The Water Court issued an order, finding all of the Master’s

recommendations supported by substantial evidence and adopting the Master’s report in

whole.

¶6       We review the Water Court’s order de novo to determine whether it correctly

applied the clear error standard of review to the Master’s findings of fact and whether its

conclusions of law were correct. Whether the standard of review was applied correctly is

a question of law. Skelton Ranch, Inc. v. Pondera Cnty. Canal & Reservoir Co., 2014

MT 167, ¶ 26, 375 Mont. 327, 328 P.3d 644. We review the Water Court’s findings to

determine whether they are clearly erroneous. Skelton Ranch, ¶ 26.

¶7       The Master determined that volume quantification was appropriate because,

particularly given the longstanding hostilities between Claimants and Objectors, volume

quantification was necessary to administer the water right. The Water Court agreed.

This determination is within the discretion of the Water Court.               Section 85-2-

234(6)(b)(iii), MCA; In re Eldorado Coop Canal Co., 2016 MT 94, ¶ 25, 383 Mont. 205,

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369 P.3d 1034. There is substantial evidence to support the Master’s findings and the

Water Court did not err in adopting the recommendation for volume quantification.

¶8     For the first time on appeal, Claimants argue that the motion to amend process

under § 85-2-233(6), MCA, “is not the correct procedure for the Water Court to issue a

volume for one of the parties involved.” We decline to address Claimants’ argument on

this issue. “[W]e do not consider new arguments or legal theories for the first time on

appeal.” Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 20, 373 Mont. 1,

313 P.3d 839. The argument Claimants made with respect to volume quantification

before the Water Court was that there was “no justification for a volume restriction” and

that the findings upon which the Master based his conclusion to impose a volume

restriction were clearly erroneous. Claimants’ argument on appeal that the Master lacks

authority in the first place to quantify volume in a proceeding on a motion to amend is a

new legal theory that they never raised before the Water Court. Accordingly, we will not

consider Claimants’ argument on appeal.

¶9     We also decline to address Objectors’ arguments that the Water Court erred in

determining the volume amount, flow, place of use, and periods of use. To preserve an

issue not raised by an appellant, a respondent must file a timely notice of cross-appeal.

Billings Firefighters Local 521, Int’l Ass’n of Firefighters v. City of Billings, 1999 MT 6,

¶ 31, 293 Mont. 41, 973 P.2d 222; M. R. App. P. 4(5)(a)(iii). If they wished to challenge

any of the Water Court’s rulings, the Objectors were required to have filed a notice of

cross-appeal within the time permitted by M. R. App. P. 4(5)(a)(iii). Because Objectors



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did not file a cross-appeal, we will not address their arguments on this issue. See Billings

Firefighters Local 521, ¶ 31.

¶10    Claimants’ second argument is that the Water Court erred by denying Claimants’

implied claims as a matter of law, and because the court disregarded its own findings of

fact. Claimants argue that there is “no authority” for the Master’s conclusion that implied

claims are barred in proceedings on a motion to amend pursuant to § 85-2-233(6), MCA,

and contend that the Water Court erred by not addressing this conclusion. Claimants

argue further that the Master’s report “actually found that Claimants had met the

necessary elements for an implied claim” and that, “[a]t a minimum,” they established the

elements for an implied claim of historical use of Spring Creek for irrigation.

¶11    The Master premised his rejection of the implied claims on the evidence,

presenting his interpretation of § 85-2-233(6), MCA, as “yet another bar” to the implied

claims. Relevant to Claimants’ arguments here, the Master found that irrigation from

Spring Creek did not begin until the 1973 irrigation season and that Claimants’ alleged

historical use was “vague” and “contradicted by direct testimony” from Claimants’ own

witnesses. The Master thus concluded that “the evidence presented regarding continuing

historical use of Spring Creek was NOT sufficient to corroborate the generation of an

implied claim.”

¶12    The Water Court reviewed and adopted the Master’s findings, determining that

there was substantial evidence to support the Master’s recommendations to deny an

implied irrigation claim from Spring Creek and implied stock and domestic claims from

the Pleasant Valley Fisher River. The court noted that the evidence supporting irrigation

                                             5
use of Spring Creek was conflicting, but held that the Master did not misapprehend the

effect of the evidence by finding that better evidence—testimony of witnesses with

firsthand knowledge of historical irrigation on Claimants’ property—did not support this

irrigation as historical practice.

¶13    With respect to the Pleasant Valley Fisher River, the Water Court found no

evidence supporting domestic use through the Lloyd Ditch, and nothing in the Statements

of Claim that would support use of the Lloyd Ditch as the only source of water for

livestock during the winter. Absent any indication that the Statements of Claim intended

to claim both stock and irrigation, the court determined that an implied claim for stock

was not appropriate. Claimants do not argue error with respect to this ruling.

¶14    The Water Court did not rely on the Master’s interpretation of § 85-2-233(6),

MCA, and we find it unnecessary to reach that question.               Claimants have not

demonstrated clear error in the Master’s findings of fact regarding actual historic use.

The record contains substantial “relevant evidence which a reasonable mind might accept

as adequate to support [the Master’s] conclusion[s].” Montanans v. State, 2006 MT 277,

¶ 79, 334 Mont. 237, 146 P.3d 759 (internal quotations omitted). The Water Court

correctly applied the clear error standard of review and properly determined that the

evidence supported the Master’s conclusions.

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

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new



                                             6
precedent or modify existing precedent. We affirm the Water Court’s order adopting the

Master’s report.


                                              /S/ BETH BAKER


We concur:


/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT




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