Livingston v. Park Conservation District

Livingston v. Park Conservation District, 2013 MT 234 (Aug. 20, 2013) (5-0) (McGrath, C.J.)

Issue: Whether the district court erred in upholding the conservation district’s decision that a certain channel adjacent to the Yellowstone River is part of the natural watercourse of the river, subject to the Natural Streambed and Land Preservation Act, § 75-7-101, MCA.

Short Answer: No.

Affirmed

Facts: The disputed channel is adjacent to the Yellowstone River near Livingston, and has been used since the 19th century to obtain water from the river to satisfy water rights owned by Hart K Ranch, the intervenor. Heart K has no headgate on the river, and has to remove rocks, gravel and other material to allow the river to flow into the side channel in times of lower flows.

The city of Livingston owns land adjacent to the channel and claims Heart K’s activities have harmed the city’s property. The Park Conservation District reviewed and permitted Heart K’s maintenance of the channel pursuant to the Natural Streambed and Land Preservation Act of 1975. The city contends the channel is an irrigation ditch not covered by the Act and that the district therefore has no authority to permit Heart K’s activities.

The city petitioned the conservation district for a declaratory ruling under ¶ 75-7-125, MCA. The district accepted the petition on the narrow issue of whether the channel is subject to the Act or is an irrigation ditch, and appointed a hearing officer. The parties as well as FWP submitted information, and there was a public hearing in September 2011. The hearing officer ultimately issued findings of fact and a recommended decision.

Procedural Posture & Holding: The district issued a declaratory ruling in December 2011 that the channel is a flood channel, high water channel or side channel of the Yellowstone River, and is therefore subject to the Act. The city petitioned the district court for judicial review, and the district court upheld the district/ The city appeals, and the Supreme Court affirms.

Reasoning: A conservation district, when considering whether a portion of a river falls under the Act, must base its decision on the totality of the circumstances. The Yellowstone River is a stream under the Act. The disputed channel is contiguous to the river, and portions of the river’s water flow naturally through the channel in times of higher water. These facts make the channel part of the bed of the Yellowstone under DNRC rules, and make it a channel of the river under Park Conservation District rules.

The fact that water rights claimants and others may have referred to a ditch or to points of diversion has marginal relevance to whether this channel comes under the Act. The actual physical characteristics of the channel show it is natural, and not a man-made ditch. Although evidence in the record could support a different result, this is not enough to meet the city’s burden to show the decision was arbitrary or capricious.