Thursday, April 7, 2016


Supreme Court wades through water dispute between Curry Cattle Co. and PCC&RC

Posted: Wednesday, April 6, 2016 6:00 am
By PHIL DRAKE Great Falls Tribune

The Montana Supreme Court waded through five points of contention in a water rights issue and then sent it back to a water court for further adjudication.

The court voted 6-1 in a decision released Tuesday in the case Gene and Cheryl Curry and the Curry Cattle Co. v. the Pondera County Canal and Reservoir Co. (PCC&RC). The Currys had filed an appeal of an order made by the Montana Water Court and PCC&RC cross-appealed portions of the order.

The court addressed five decisions the Montana Water Court made, including if water rights developed under the Carey Land Act are limited by historical use, was it wrong for the Water Court to grant Pondera “a service area” rather than base it on historically irrigated land? And did the Water Court err by ruling PCC&RC storage rights were used beneficially on Birch Creek Flats prior to 1973?

“We affirm the Water Court’s conclusion that Pondera’s rights are not limited by the shareholders’ actual historical acreage irrigated,” Justice Michael Wheat wrote. “We further affirm the Water Court’s conclusion that Pondera is entitled to a service area.

“However, we hold the Water Court erred when it determined the acreage included in the service area and we remand this issue to the court for further proceedings …”

Justice Laurie McKinnon dissented, saying she would reverse the Water Court’s opinion and affirm the Water Master’s opinion limiting PCC&RC’s annual irrigation to 56,556 acres.

She said the court was reinforcing the adage of “hard cases make bad law.”

“I believe that the principles the Court announces today will ultimately prove unsound,” she wrote. “There is no doubt in my mind that the rampant speculation that will ensue from this decision will force this Court’s hand to either expressly overrule the decision or distinguish it from future cases based on inconsequential facts.”

John Bloomquist, a Helena-based attorney who represents PCC&RC  was happy with the judges’ action.

“I think it is a good decision for Pondera and its water users,” he said, adding the high court addressed a couple of fundamental water law issues regarding water projects in terms of how water rights are historically recognized. Gene Curry also said the court ruled in his favor by excluding the Birch Creek Flats from the service area.

“It’s nice to have a decision, but I thought it would come a little sooner,” he said, noting the decision was not unanimous and the issue now goes back to the Montana Water Court.

The case originates from a water distribution controversy on Birch Creek, which is a tributary of the Marias River.

The Currys and Pondera own rights to divert waters from Birch Creek. The 9th Judicial District Court referred the case to the Water Court to determine the water rights. It has yet to receive final adjudication, according to the lawsuit.

PCC&RC supplies water to county residents, primarily for irrigation. It owns rights to divert water from Birch Creek and a distribution system that includes canals, ditches, siphons and headgates, the lawsuit states.

PCC&RC’s predecessors got some its water rights through use of the Carey Land Act, a federal act that encouraged settlement of the arid West. Once an irrigation was built under the direction of the state, an operating company was set up and it could sell patented land to stockholder-settlers.
PCC&RC is owned by its membership and water is distributed to shareholders on a per share basis. However, they did not receive individual water rights to irrigate their land, but had the right to the water in common with other settler-shareholders, court documents state.

Curry is a private landowner with irrigation water rights in the Birch Creek Flats and came into possession of his property and water rights in 1988.

In 2004, PCC&RC told Curry his water rights were less than had been earlier indicated by a former Pondera employee. Pondera then locked his headgate in 2005, the lawsuit states.

In her dissent, McKinnon stated this action and growing need threatened Curry’s way of life.

Curry filed a complaint with the 9th Judicial District Court in 2005, which sent the case to the Water Court. In 2006, the District Court issued a preliminary injunction preventing Pondera from interfering with Curry’s water diversion from Birch Creek, the lawsuit states.

In 2013, the water master found that PCC&RC  was allowed to irrigate a maximum of 57,073 acres and not 72,000 acres, which at one time was believed to be the maximum.

Although PCC&RC claimed a service area of more than 377,000 acres, it was never historically serviced, court documents state.

The master also excluded the Flats from the service area, saying that water used on the Flats prior to 1973 was non-PCC&RC  water.

The Water Court disagreed with the master’s conclusion regarding the maximum number of shares and found that the 377,000 acre figure was appropriate and the Flats should be included.

The Supreme Court found the PCC&RC shareholders had a right to 377,255 acres.

“Merely, we agree with the Water Court that the 377,255.5 acres described as the service area will be sufficient for the purposes of its certification order …” it wrote.

The Supreme Court justices also found the Water Court did not err in respect to Curry’s appeal and PCC&RC ’s cross-appeal regarding specific water rights.

That also was sent back to the Water Court.

n.b.  The Curry extended families own the majority of the businesses in Valier, as well as ranches nearby.

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