notice of filing of master’s report
TRANSCRIPT
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Montana Water Court
PO Box 1389
Bozeman, MT 59771-1389
(406) 586-4364
1-800-624-3270
IN THE WATER COURT OF THE STATE OF MONTANA
UPPER MISSOURI DIVISION
GALLATIN RIVER BASIN (41H)
PRELIMINARY DECREE
* * * * * * * * * * * * * * * * * * *
CLAIMANTS: Holly A. Coleman; Joel L. Coleman
OBJECTOR: Farmers Canal Co.
CASE 41H-0191-R-2020
41H 30109777
41H 30109784
41H 30109791
NOTICE OF FILING OF MASTER’S REPORT
This Master’s Report was filed with the Clerk of the Montana Water Court. Please
review this report carefully.
You may file a written objection to this Master’s Report within 10 days of the
stamped date if you disagree or find errors with the Master’s findings of fact, conclusion
of law, or recommendations. Rule 23, W.R.Adj.R. If the Master’s Report was mailed to
you, the Montana Rules of Civil Procedure allow an additional 3 days be added to the 10-
day objection period. Rule 6(d), M.R.Civ.P. If you file an objection, you must mail a copy
of the objection to all parties on the service list found at the end of the Master’s Report.
The original objection and a certificate of mailing to all parties on the service list must be
filed with the Water Court.
If you do not file a timely objection, the Water Court will conclude that you agree
with the content of this Master’s Report.
MASTER’S REPORT
INTRODUCTION
Water right claims 41H 30109777, 41H 30109784, and 41H 30109791, owned by
Joel and Holly Coleman, appeared in the Preliminary Decree for the Gallatin River (Basin
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41H) with issue remarks from the Montana Department of Natural Resources and
Conservation’s (DNRC) review in preparation of the preliminary decree.
On May 9, 2019, Farmers Canal Co. filed objections to elements of the claims. On
April 10, 2020, William Fanning filed notices of appearance for objector Farmers Canal
Co. in the proceedings resolving the objections.
The Water Court consolidated the water rights claims into Water Court case 41H-
0191-R-2020 and held a January 6, 2021 status conference attended by William Fanning
for Farmers Canal to discuss the filed objections. The Colemans did not attend.
Farmers Canal requested the court to issue a show-cause order and consider
abandonment if the Colemans did not participate in the proceedings. While Farmers Canal
Co’s objections were to all elements of the water rights claims, the objections did not
specifically request abandonment of the water rights claims. Thus, the Water Court asked
Farmers Canal Co. to file additional information supporting its abandonment request.
Farmers Canal Co. filed additional information and again requested the court to abandon
the water rights claims.
In its previous show-cause order, the court notified the Colemans it would consider
abandonment of the water rights claims upon review of additional information filed by
Farmers Canal Co. unless the Colemans filed information indicating they wished to
participate in the proceedings. The Colemans did not show cause or file information by the
deadline.
The Water Court presently resolves the issues in this case.
ISSUES
1. Whether abandonment of water right claims 41H 30109777, 41H 30109784,
and 41H 30109791 is a just sanction based on evidence in the record.
APPLICABLE LAW
“The Montana [W]ater [C]ourt has a statutory obligation and the exclusive authority
to adjudicate claims of existing water rights.” Rule 1(a), W.R.Adj.R. The Water Court
resolves issue remarks before issuance of a final decree and may use information submitted
by the DNRC, the statement of claim, and any other data obtained by the court to evaluate
a water right. Sections 85-2-227, -231(2), MCA.
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After the Water Court issues a preliminary decree in a basin, an objection period
provides parties with a usufruct interest in water or its use the opportunity to raise issues
regarding their own water rights or other water rights in the preliminary decree. Section
85-2-233(1)(b); Mont. Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, ¶ 33, 361
Mont. 77, 255 P.3d 179.
A properly filed statement of claim for an existing water right is prima facie proof
of its content. Section 85-2-227, MCA; Rule 10, W.R.Adj.R. Prima facie proof may be
contradicted and overcome by a preponderance of the evidence. Rule 19, W.R.Adj.R. A
preponderance of the evidence is evidence that shows a fact is “more probable than not.”
Hohenlohe v. State, 2010 MT 203, ¶ 33, 357 Mont. 438, 240 P.3d 628. The party seeking
to overcome the prima facie status of a statement of claim bears the burden of proof. Nelson
v. Brooks, 2014 MT 120, ¶¶ 34, 37, 375 Mont. 86, 329 P.3d 558.
“The Water Court has sole jurisdiction to determine whether an existing water right
is abandoned. Section 85-2-227(3). Abandonment of a water right is a question of fact
requiring two concurrent elements: “(1) continuous nonuse of the water associated with the
water right; and (2) the intent to abandon the water right.” Twin Creeks Farm & Ranch,
LLC v. Petrolia Irrigation Dist., 2020 MT 80, ¶¶ 14-15, 73 (citing 79 Ranch v. Pitsch, 204
Mont. 426, 432, 666 P.2d 215, 218 (1983); Skelton Ranch, Inc. v. Pondera Cty. Canal &
Reservoir Co., 2014 MT 167, ¶ 52, 375 Mont. 327, 328 P.3d 644); § 85-2-404, MCA. The
Water Court may infer an intent to abandon a water right from the factual circumstances
of a case. Twin Creeks Farm & Ranch, ¶ 15 (citing Heavirland v. State, 2013 MT 313, ¶
31, 372 Mont. 300, 311 P.3d 813).
In abandonment proceedings before the Water Court, “[t]he objector bears the initial
burden of showing a long period of continuous non-use of the claimed water right.” Twin
Creeks Farm & Ranch, ¶ 73 (quoting Skelton Ranch, ¶ 53). “A long period of continuous
nonuse creates a rebuttable presumption of [an] intent to abandon.” Twin Creeks Farm &
Ranch, ¶ 15. The owner of the water right can rebut the presumption of intent by providing
specific evidence excusing their nonuse to the Water Court. 79 Ranch, 204 Mont. at 432-
33, 666 P.2d at 218. “Other than presumptions declared conclusive by statute, all
presumptions are disputable and may be controverted.” Rule 301(b)(1), (2), Mont. R. Evid.
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The Water Court then weighs the relevant factual circumstances to determine whether
substantial evidence supports abandonment as a finding of fact. Twin Creeks Farm &
Ranch, ¶¶ 11, 15; Heavirland, ¶ 32.
Fundamental due process mandates notice and the opportunity to be heard prior to
the modification of property rights, including the withdrawal or termination of water rights.
Mont. Const. art. II, § 17; Little Big Warm Ranch, LLC v. Doll, 2018 MT 300, ¶ 11, 393
Mont. 435, 431 P.3d 342.
DISCUSSION
1. Whether abandonment of water right claims 41H 30109777, 41H 30109784,
and 41H 30109791 is a just sanction based on evidence in the record.
“If a claimant, objector, or intervenor fails to appear at a scheduled conference or
hearing, or fails to comply with an order issued by the [W]ater [C]ourt, the [W]ater [C]ourt,
upon motion, or its own initiative, may issue such orders of sanction with regard thereto as
are just. Sanctions applied against claimants may include termination of the claim . . .”
Rule 22, W.R.Adj.R. The Colemans failed to appear at the status conference and failed to
respond to the court’s orders issued in this case. Farmers Canal Co. requests the Water
Court to abandon the water rights claims owned by the Colemans on procedural grounds.
The Water Court therefore considers whether abandonment is a just sanction based on
evidence in the record. To do so, the Water Court considers Montana’s well-established
abandonment jurisprudence.
In support of abandonment, Farmers Canal Co. asserts:
[T]hese rights have not and cannot be used as described and are effectively
abandoned as they have no means of conveyance from Farmers Canal to the
place of use. These three water rights are the remnants of historical decreed
water rights conveyed in the Farmers Canal and do still list Farmers Canal as
their point of diversion from the Gallatin River near Gallatin Gateway. The
place of use appears to be the front yard of a single-family home in a
subdivision north of Huffine Lane. [Farmers Canal Co.] is unaware of any
conveyance structure in existence that would deliver the water to this place
of use. Additionally, the three water rights in this case, combined together,
are entitled to less than one gallon per minute of flow rate. The reason for the
existence of these three water rights is related to various property transfers
and split severs [. . .]
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Farmers Canal Co. attached a map depicting the place of use supporting its assertions. In
short, Farmers Canal Co. asserts: “[T]hese water rights have no conveyance system in place
to deliver the water to this place use and they do not represent a present beneficial use of
water.”
A March 3, 2017 Master’s Report appearing in the claims’ files contains a table
detailing the split of: (1) parent water right claim 41H 30023118 between eight lot owners,
including the Colemans (child claim 41H 30109777); (2) parent water right claim 41H
30023119 between seven lot owners, including the Colemans (child claim 41H 30109784);
and (3) parent water right claim 41H 30023120 between eight lot owners, including the
Colemans (child claim 41H 30109791).1 The 2017 Master’s Report explains the owner of
the parent water rights claims, Norton Properties, LLC and Norton Ranch Homes, LLC
(collectively, Norton), sought to split its surface water rights from the seven lot owners it
has previously sold land to without reserving appurtenant water. The Master’s Report
acknowledged: “[T]he flow rates for the residential lots may be too small to be useful.
Residential lot owners may have no way to have surface water appropriations to their lots.”
The evidence in the record supports continuous non-use of the water rights claims
at the place of use; the claim’s owners do not have a conveyance system to deliver the
claimed water to their property in place. The evidence in the record additionally supports
an intent to abandon the water rights claims. The Colemans have had ample opportunity to
participate in the proceedings.
Accordingly, dismissal of water rights claims 41H 30109777, 41H 30109784, and
41H 30109791 for abandonment is a just sanction for failure to comply for several court
orders. Dismissal of water rights claims 41H 30109777, 41H 30109784, and 41H 30109791
resolves Farmers Canal Co.’s objections and the issues in the case.
RECOMMENDATION
This Water Master recommends the Water Court to dismiss water rights claims 41H
30109777, 41H 30109784, and 41H 30109791 for abandonment. The Water Court attaches
1 Water rights claim 41H 30023118, 41H 30023119, 41H 30023120 were previously split by a
2006 Master’s Report in Water Court case 41H-412 from parent water rights claims 41H 9295-00,
41H 138900-00, and 41H 138901-00.
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post-decree abstracts for the water rights claims to this Master’s Report. The Water Court
additionally files the information filed by Farmers Canal Co. in the case file for water right
claim 41H 30109777 for future reference.
_______________________________
Kirsa Shelkey
Water Master
she/her/hers
Service via USPS Mail:
Holly A. Coleman
Joel L. Coleman
107 Water Lily Dr
Bozeman, MT 59718
Service Via Electronic Mail:
William Fanning
Fanning Law PLLC
300 N. Willson Ave.
Suite 3007
Bozeman, MT 59715
(406) 220-2805
\\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\41H PD\41H Cases\41H-R191\NOTICE OF FILING OF MASTER 3-18-21 jbc.docx
POST DECREE
ABSTRACT OF WATER RIGHT CLAIM
GALLATIN RIVER
BASIN 41H
Water Right Number: 41H 30109777 STATEMENT OF CLAIM
Version: 2 -- POST DECREE
Status: DISMISSED
Owners: HOLLY A COLEMAN 107 WATER LILY DRBOZEMAN, MT 59718 7510
JOEL L COLEMAN 107 WATER LILY DRBOZEMAN, MT 59718 7510
Priority Date: Type of Historical Right:
Purpose (Use): IRRIGATION
Flow Rate:
Volume:
Source Name: WEST GALLATIN RIVER
Source Type: SURFACE WATER
Point of Diversion and Means of Diversion:
Period of Use:
Place of Use:
Remarks:
THIS CLAIM WAS DISMISSED BY ORDER OF THE WATER COURT.
March 31, 202141H 30109777
Page 1 of 1 Post Decree Abstract
POST DECREE
ABSTRACT OF WATER RIGHT CLAIM
GALLATIN RIVER
BASIN 41H
Water Right Number: 41H 30109784 STATEMENT OF CLAIM
Version: 2 -- POST DECREE
Status: DISMISSED
Owners: HOLLY A COLEMAN 107 WATER LILY DRBOZEMAN, MT 59718 7510
JOEL L COLEMAN 107 WATER LILY DRBOZEMAN, MT 59718 7510
Priority Date: Type of Historical Right:
Purpose (Use): IRRIGATION
Flow Rate:
Volume:
Source Name: WEST GALLATIN RIVER
Source Type: SURFACE WATER
Point of Diversion and Means of Diversion:
Period of Use:
Place of Use:
Remarks:
THIS CLAIM WAS DISMISSED BY ORDER OF THE WATER COURT.
March 31, 202141H 30109784
Page 1 of 1 Post Decree Abstract
POST DECREE
ABSTRACT OF WATER RIGHT CLAIM
GALLATIN RIVER
BASIN 41H
Water Right Number: 41H 30109791 STATEMENT OF CLAIM
Version: 2 -- POST DECREE
Status: DISMISSED
Owners: HOLLY A COLEMAN 107 WATER LILY DRBOZEMAN, MT 59718 7510
JOEL L COLEMAN 107 WATER LILY DRBOZEMAN, MT 59718 7510
Priority Date: Type of Historical Right:
Purpose (Use): IRRIGATION
Flow Rate:
Volume:
Source Name: WEST GALLATIN RIVER
Source Type: SURFACE WATER
Point of Diversion and Means of Diversion:
Period of Use:
Place of Use:
Remarks:
THIS CLAIM WAS DISMISSED BY ORDER OF THE WATER COURT.
March 31, 202141H 30109791
Page 1 of 1 Post Decree Abstract