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                                                              No. 00-816

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2002 MT 15



                               IN THE MATTER OF THE PETITION OF THE

                                       DEADMAN'S BASIN WATER USERS

                                    ASSOCIATION TO APPOINT A WATER

                        COMMISSIONER TO DISTRIBUTE STORED WATER.

                 APPEAL FROM: District Court of the Fourteenth Judicial District,

                                         In and for the County of Musselshell,

                               The Honorable Roy Rodeghiero, Judge presiding.

                                                  COUNSEL OF RECORD:

                                                           For Appellant:

                Patrick N. Dringman, Josephson & Dringman, Big Timber, Montana

                                                          For Respondent:

               Catherine Truman, Musselshell County Attorney, Roundup, Montana

                                           Submitted on Briefs: July 26, 2001
                                              Decided: January 29, 2002

                                                                   Filed:



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                              __________________________________________

                                                                    Clerk



Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 On August 2, 2000, the Fourteenth Judicial District Court, Musselshell County, ordered
that all irrigation of crops from the Musselshell River cease for a prescribed period of
time, effective August 12, 2000, so long as Deadman's Basin Reservoir remained at its
critically low water level. Appellant, Wiley Micks, filed a motion which requested that the
District Court reconsider its August 2, 2000 order, issue a temporary restraining order, and
issue a preliminary injunction. The District Court denied Micks' motion and Micks
appeals. We reverse and remand.

¶2 We restate the sole issue on appeal as follows:

        Did the District Court err when it denied Micks' motion to reconsider its August 2,
        2000 order?

                            FACTUAL AND PROCEDURAL BACKGROUND

¶3 Micks operates a genetic materials facility know as Quad Five near Ryegate, Montana,
which provides horse, cattle, and sheep blood for medical and scientific purposes. The
operation requires that the animals be quarantined for most of the year in paddocks or
barns. Thus, Micks must produce hay to sustain the animals during quarantine.

¶4 In order to irrigate his hay crop, Micks entered into a water purchase contract with the
Deadman's Basin Water Users Association. In 2000, pursuant to the water purchase
contract, Micks purchased the right to 775 acre feet of water from the Deadman's Basin
Reservoir. On April 18, 2000, the District Court appointed two water commissioners for
the 2000 irrigation season to distribute the reservoir water pursuant to a rotation plan.

¶5 On August 2, 2000, the District Court, on its own motion, found that the "remaining
stored water level in Deadman's Basin Reservoir has reached a critical level" and that the
reservoir water was needed to maintain the Musselshell River flow "to supply domestic,

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municipal, stock and wildlife water usage." Therefore, the District Court prohibited the
irrigation of crops from the Musselshell River between August 12 and September 30,
2000, so long as the reservoir maintained its critically low level. As of August 12, 2000,
Micks believed that he had used only 431 of his contracted 775 acre feet of water. Based
on his limited usage and other reasons, Micks presumed that the District Court's
prohibition did not apply to him. Thus, Micks continued to use the reservoir water to
irrigate his hay crop.

¶6 On August 12, 2000, the court-appointed water commissioners patrolled the Deadman's
Basin irrigation system to verify that irrigators were complying with the District Court's
order. The patrol revealed that the Quad Five and Sterling Zeier ranches were irrigating in
violation of the District Court's order. Therefore, upon motion of the Musselshell/Golden
Valley County Attorney, the District Court ordered Micks and Sterling Zeier to show
cause on September 6, 2000, why they should not be held in contempt of court for failing
to comply with the August 2, 2000 order.

¶7 On September 1, 2000, Micks filed a motion which requested that the District Court
clarify its August 2, 2000 order to apply only to those individuals who obtain water
directly from the Musselshell River. Micks argued that since his water was delivered via a
system separate and apart from the Musselshell River, the District Court's order should not
apply to him. Micks also argued to the District Court that the water in the reservoir should
not be appropriated for other uses to Micks' detriment, as no senior water rights existed
which enjoyed priority over Micks' water rights. Further, Micks' motion requested that the
District Court issue a temporary restraining order to prohibit the water commissioners
from interfering with Micks' use of the Deadman's Basin water. Finally, Micks' motion
requested that the District Court order the water commissioners to show cause as to why
the District Court should not issue a preliminary injunction forbidding them from utilizing
Micks' Deadman's Basin water for purposes other than irrigation of Micks' property.

¶8 After receiving testimony at the September 6, 2000 show cause hearing, the District
Court held Micks and Zeier in contempt of court for violating its August 2, 2000 order.
The District Court ordered Micks and Zeier to pay a $500 fine and sentenced them to five
days in the Musselshell County Jail. In the alternative, the District Court allowed Micks
and Zeier to pay an additional $500 in lieu of the five-day jail sentence. The District Court
denied Micks' motion for reconsideration, temporary restraining order, and preliminary
injunction. Micks appeals the District Court's denial of his motion. However, he does not
seek review of the contempt order. Zeier is not a party to this appeal.

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                                                 STANDARD OF REVIEW

¶9 The construction and interpretation of a contract is a question of law for the court to
decide. Ophus v. Fritz, 2000 MT 251, ¶ 19, 301 Mont. 447, ¶ 19, 11 P.3d 1192, ¶ 19. The
standard of review of a district court's conclusions of law is whether the court's
interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271
Mont. 459, 469, 898 P.2d 680, 686.

                                                            DISCUSSION

¶10 Did the District Court err when it denied Micks' motion to reconsider its August 2,
2000 order?

¶11 In its August 2, 2000 order, the District Court determined that the water in Deadman's
Basin Reservoir was needed to maintain the "minimal Musselshell River flows to supply
domestic, municipal, stock and wildlife water usage." Therefore, the District Court
prohibited the irrigation of crops from the Musselshell River for a specified period of time
while the water level in the reservoir remained critically low.

¶12 Micks argues that no senior Deadman's Basin water right exists which entertains legal
priority over his. As the Deadman's Basin water rights enjoy equal priority, Micks insists
that any water rationing policy must be implemented on a pro-rata basis pursuant to the
water purchase contracts. Micks contends that the August 2, 2000 order essentially
instituted a first-come-first-serve water rationing plan which contravened the allocation
provisions in the water purchase contracts. In so doing, Micks maintains that the District
Court's order effectively misconstrued the contract provisions. Thus, Micks argues that the
District Court's denial of his motion to reconsider constitutes reversible error.

¶13 Musselshell County contends that Micks suffered no injury from the August 2, 2000
order because Micks availed himself of his full allotment of water prior to August 12,
2000. The County agrees that Micks was entitled to 775 acre feet of water from the
reservoir. However, the County contends that Micks leased 300 acre feet to Zeier and
consumed the remaining 475 acre feet prior to August 12, 2000. It accordingly contends
that this appeal is moot.

¶14 Contrary to the County's contention, the District Court found that Micks had not

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appropriated his entire allotment of water. At the September 6, 2000 show cause hearing
the District Court stated:

        This irrigation season lasted at least a month longer than was anticipated, and each
        of you [Micks and Zeier] had the same rights to take water, take your 100 percent or
        130 percent out of there while there was water to be taken, and you did not do that.

Therefore, we decline to address the County's mootness argument further. We now
proceed to the merits of Micks' position.

¶15 The jurisdiction to interpret and determine existing water rights rests exclusively with
the water courts. Mildenberger v. Galbraith (1991), 249 Mont. 161, 166, 815 P.2d 130,
134. District courts are granted the authority to supervise the distribution of water that has
already been adjudicated and to enforce such water decrees. Baker Ditch Co. v. District
Court (1992), 251 Mont. 251, 255, 824 P.2d 260, 262-63. Under certain circumstances a
district court may "fill in" a pre-1973 water decree with further delineations such as time
or season of use and acreage of application. State ex rel. Jones v. District Court (1997),
283 Mont. 1, 7, 938 P.2d 1312, 1316. However, it is clear that a district court has no
authority to issue a final adjudication of water rights. Mildenberger, 249 Mont. at 166, 815
P.2d at 134.

¶16 While the District Court's order clearly prohibits the irrigation of crops from the
Deadman's Basin Reservoir, its justification for the prohibition is unclear. The following
colloquy between the District Court and Micks' attorney demonstrates this ambiguity:

        Court: And then we come to this idea of you say that all irrigation rights on stored
        water are even or equal. Well, here's one of the differences. Now your irrigation
        water during irrigation season usually lasts for a period of four or five months and
        that's it and then your irrigation season is over with. All your irrigation of crops is
        for a period of four or five months and then you have no more use for it for
        irrigation usually. On the other hand, water for livestock and for city use, for
        drinking water, people and domestic water, that water is used all year round.

        ....

        Counsel: [I]s it your ruling that the stock water and municipal water rights, because
        of the longevity in their nature or other reasons, have some legal precedent or


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        seniority over my client's contract irrigation water rights?

        Court: Well, I don't know if it has so much priority, but I mean the period of use is
        all year long for the cities' water as opposed to irrigation.

        Counsel: And the reason I asked for the clarification is because pursuant to the
        Court's order we are going to - - you are going to service the municipalities' water
        rights and the in-stream stock water rights to the detriment of my client's irrigation
        rights, so I wanted it clear in my mind and for the record, is there some priority that
        you see?

        Court: Well, that's one. One is for all year round, and the other is just for in the
        summer for irrigation and for a few months. Personally, yes, I see that people
        drinking water is probably more important than irrigating a person's crops. I'm not
        saying that's the law, because in Montana I don't think they've held that yet. Some
        states have.


¶17 As stated above, the District Court had the authority to supervise the distribution of
previously adjudicated water or enforce an existing water decree. However, the record is
devoid of any reference to a water decree proclaiming priorities among the users of the
Deadman's Basin water. In fact, it was stipulated at the hearing that all of the users entitled
to the reservoir's water shared equal priority pursuant to the water purchase contracts. It
appears that the District Court simply made a priority determination regarding domestic
and irrigation water consumption based on its own inclinations. In so doing, the District
Court exceeded its authority to simply "fill in" a water decree with further delineations.

18 ¶Moreover, the District Court's August 2, 2000 order essentially implemented a water
rationing policy for those irrigators utilizing the Deadman's Basin Reservoir water. Those
irrigators who satisfied their demand by August 12, 2000, received their entire contracted
allotment. Those irrigators who had utilized less than their full amount of water
conditionally forfeited the remainder of their entitlement, effective August 12, 2000. This
"use it or lose it" approach to the water shortage dilemma contradicted the water rationing
plan in the Deadman's Basin water purchase contract, which provided for pro rata
rationing in the event of a shortfall of water. Section one of the contract states:

        [I]n the event that . . . [the reservoir] shall have an inadequate amount of water . . .
        to permit the furnishing of the number of acre feet of water in any year for which

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        there are such outstanding water purchase contracts, the water purchaser in such
        year shall be entitled, in lieu of each acre foot of water for which he has contracted,
        to a share of the total water available representing the proportion that one acre foot
        of water annually bears to 20,000 acre feet of water annually or . . . to the total
        number of acre feet of water agreed to be purchased annually under outstanding
        water purchase contracts.

¶19 The language of contractual provisions should be interpreted according to its plain,
ordinary meaning. Ophus, ¶ 23. When the language of a contract is clear and unambiguous
and, as a result, susceptible to only one interpretation, the duty of the court is to apply the
language as written. Ophus, ¶ 23. This contract unambiguously requires a pro rata
reduction in water distribution when an inadequate amount of water exists to satisfy the
outstanding water purchase contracts. The August 2, 2000 order employed a "first-come-
first-serve" policy in contravention of the water contract. Therefore, we hold that the
District Court erred as a matter of law when it prohibited irrigation from Deadman's Basin
Reservoir in a manner contrary to the water purchase contract. Consequently, the District
Court erred in denying Micks' motion to reconsider the August 2, 2000 order. It further
follows that Micks' motion to restrain the water commissioners from interfering with his
use of the irrigation water to which he was entitled, that was stored in Deadman's Basin
Reservoir, should have been granted.

¶20 Finally, Micks contends that the District Court's appropriation of his water for public
purposes constituted a compensable taking. However, the District Court made no specific
finding regarding the extent of Micks' water deprivation, nor did it determine whether the
deprivation qualified as an unconstitutional taking. Therefore, this issue is not ripe for
present determination, and we decline to address it.

¶21 Reversed and remanded for such further proceedings consistent with this Opinion as
may be deemed necessary.

                                                    /S/ PATRICIA COTTER

                                                              We Concur:

                                                      /S/ KARLA M. GRAY

                                                    /S/ JAMES C. NELSON


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                                                        /S/ JIM REGNIER

                                               /S/ TERRY N. TRIEWEILER

                                              /S/ W. WILLIAM LEAPHART

                                                            /S/ JIM RICE




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