Fellows v. Saylor

Fellows v. Saylor, 2016 MT 45 (March 1, 2016) (Baker, J.) (5-0, aff’d)

Issue: (1) Whether the water right claims in controversy were properly determined under Fellows I, 2012 MT 169; and (2) whether the district court erred in granting Fellows’ motion for substitution.

Short Answer: (1) Yes, and (2) the appeal of this issue is untimely.


Facts: Fellows owns several water rights in Spring Creek near Choteau. His rights were decreed in Sands Cattle & Land Co. v. Jackson (Mont. 10th Jud. Dist. Ct. 1892). Fellows claims that Spring Creek and the Teton Rover are hydrologically connected, and that maintaining the flow in Spring Creek requires maintaining water in the Springhill Reach, a subsurface aquifer from the Teton River. The Teton River and Spring Creek are in Basin 41O, which the Water Court is adjudicating.

The Perry defendants own various water rights in the upper Teton River northwest of Choteau. Their rights were decreed in Perry v. Beattie (Mont. 11th Jud. Dist. Ct. 1908). The Ninth Judicial District Court, Teton County, supervises the distribution of water pursuant to Perry and Sands. The water rights decreed in Perry are administered by a water commissioner pursuant to statute. As part of its administration of the Perry water rights, the commissioner has diverted water out of the Teton River into the Bateman Ditch above the Springhill Reach. Fellows alleges that this diversion diminishes the flow of water through the Springhill Reach and adversely affects the availability of water to satisfy his Spring Creek rights.

Fellows filed a complaint challenging the water commissioner’s administration of water under the Perry decree in February 2011. The district court dismissed his complaint and Fellows appealed. This Court reversed and remanded in Fellows I. The Court concluded that if Fellows could prove hydrological connectivity between Spring Creek and the Teton River, the next step should be certification to the chief water judge under § 85-2-406(2)(b), MCA. Id.

On remand, Fellows moved for summary judgment on the issue of hydrological connectivity, and the district court granted the motion. It found the Spring Creek and Teton River are hydrologically connected but did not determine the scope, extent, or timing of the connectivity. Fellows then asked the court to certify a question to the Water Court. The district court granted the request over the’ Perry defendants’ objection and certified a question to the Water Court.

The Water Court issued a final order in March 2015, determining that the scope of the controversy should be defined by Fellows’ water right claims and by the water right claims that historically use the Bateman Ditch, i.e., three Patrick Saylor Teton River claims, a Choteau Cattle Company Teton River claim, and Fellows’ Spring Creek claim. By the time the Water Court issued its final order, all of the Saylor, Choteau Cattle Company and Fellows claims had been adjudicated in the temporary preliminary decree. The Water Court concluded further proceedings were not required, tabulated the claims at issue, and ordered the matter closed and returned to the district court.

Procedural Posture & Holding: The Perry defendants filed a Rule 59(e) motion to alter or amend the Water Court’s judgment. The Water Court denied the motion and the Perry defendants appeal. The Supreme Court affirms.

Reasoning: (1) The Perry defendants contend the Water Court abused its discretion in determining that Spring Creek is the source of Fellows’ water rights claim in controversy because they assert that this Court implied in Fellows I that the purpose of certification was for Fellows’ rights to be determined as Teton rights vis-à-vis the Perry users. The Court disagrees.

The Perry defendants further contend that certification under § 85-2-406(2)(b), MCA, was improper. The Court concludes that the plain meaning of the statute allows a party involved in a water distribution controversy to petition the court for certification if all existing rights on the source of water in controversy have not been determined by final adjudication under the 1973 Water Use Act. Because the water rights in Basin 41O have not been conclusively determined, but are subject only to a temporary preliminary decree, Fellows’ certification petition was proper.

The Court further determines that the Water Court did not err in determining the scope of the controversy, defining the purpose of the certification, or tabulating the applicable rights involved in the controversy.

(2) Section 3–1–804, MCA, which provides for the substitution of district court judges states there is no right of substitution of “a judge supervising the distribution of water under 85–2–406.” The Perry defendants contend the substitution of Judge Olson was improper, and that the issue is timely appealed. The Court disagrees, noting it would “defeat the purpose of the rules to allow a party to appeal a substitution order only after the case has been finally decided.” ¶ 37. “We conclude that the Perry Defendants’ appeal of the substitution order is untimely because the notice of appeal from the order was not filed within 30 days.” Id. On remand, however, the case will return to Judge Olson.