Montana Water Court PO Box 1389 Bozeman MT 59771-1389 (406) 586-4364 1-800-624-3270 (IN-STATE) FAX: (406) 522-4131
IN THE WATER COURT OF THE STATE OF MONTANA
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MARTINSDALE COLONY CASE NO. WC-2002-03 ) Plaintiff and Claimant ) Certified From:
V. ) Fourteenth Judicial District Court Cause No. DV-02-03 ) RICHARD VAN CAMPEN, in his capacity as ) Chief Water Commissioner for the Musselshell ) FILED River Enforcement Project ) Defendant ) MAR 1 7 2004 ) ) Montana Water Court
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM
Procedural Background
Water right claims 40A-W-211300-00, 40A-W-211301-00, 40A-W-211302-00, 40A-
W-211303-00, and 40A-W-211304-00 were filed by Martinsdale Colony for irrigation water rights in the South Fork and North Fork of the Musselshell River in Basin 40A. They were classified as
"late claims" by the Department ofNatural Resources and Conservation (DNRC), and remarks were added to the abstracts of the claims subordinating them to all timely filed claims, pursuant to Section
85-2-221(3), MCA.
On January 22, 2002, pursuant to Sections 3-7-212, 85-2-406(4), and 85-5-101, MCA, water users in Basins 40A and 40C of the Musselshell River petitioned the Fourteenth Judicial
District Court, Musselshell County, for an order to begin the process of enforcing a portion of the
1985 and 1990 Temporary Preliminary Decrees for Basins 40A and 40C. On May 17, 2002, the
District Court issued an order granting the petition and appointing water commissioners, thereby initiating the Musselshell River Enforcement Project. Pursuant to a tabulation and list of existing
rights and their relevant priorities provided the District Court by the Water Court, the water
commissioners treated the five Martinsdale Colony claims as late claims, subordinated the five
claims to all timely filed claims, and shut off the Colony's water on May 23, 2002.
On June 12, 2002, pursuant to Section 85-5-301, MCA, Martinsdale Colony filed a
verified complaint in District Court, contending that the Colony was being deprived of valid and
existing water rights without due process of law, and moved the District Court for an order
instructing the water commissioner to distribute the water according to the priority dates set forth
on the statements of claim. In the alternative, the Colony moved the District Court for an order
certifying the "late claim" status of the five claims to the Water Court, pursuant to Section 85-2-
406(2)(b), MCA, and for injunctive relief.
On June 14, 2002, the District Court granted Martinsdale Colony a temporary
restraining order (later converted to a preliminary injunction) and certified the status of the five water
right claims to the Water Court "for a determination of their scope and extent as existing rights under Article IX, Section 3 of the Montana Constitution." The primary purpose of the certification request was to determine whether the five claims should be classified as "late" or "subordinated"
claims.
On July 3, 2002, the five Martinsdale Colony water right claims were consolidated into Water Court Case WC-2002-03. At a July 12, 2002 scheduling conference, the parties agreed that the five Martinsdale Colony water right claims need not be re-examined by the DNRC.
On July 23, 2002, the Water Court notified the 239 water users involved in the
Musselshell River Enforcement Project of the certification proceeding and provided all the water users with a 60 day Notice of Opportunity to Intervene in Case No. WC-2002-03. Subsequently,
2 Notices of Intent to Appear were filed on behalf of the Estate of Helen E. Rostad, the Montana
Department of Natural Resources and Conservation - Water Resources Division, Carl E. Rostad,
Richard Moe, and Phillip Rostad. Between November 26, 2002 and May 9, 2003, all of the parties who filed a Notice of Intent to Appear, with the exception of the DNRC, unconditionally withdrew their notices and were dismissed from the case.
On May 8, 2003, an evidentiary hearing on the classification of the claims as "late claims" was held in the courtroom of the Wheatland County Courthouse, Harlowton, Montana. The sole issue before the Court was: Are the five Martinsdale Colony claims "late" claims.
Attorneys Jeffrey J. Oven and Colby L. Branch of Crowley, Haughey, Hanson, Toole
& Dietrich P.L.L.P., appeared on behalf of Martinsdale Colony. Attorney Fred Robinson appeared on behalf of the DNRC. Peter Wipf and Mike Kleinsasser testified on behalf of the Martinsdale
Colony, and Claimant Exhibits 1-7 were admitted without objection. Sharon Gregory and Craig
Dubois testified on behalf of the DNRC. No exhibits were introduced by the DNRC.
In its Amended Proposed Prehearing Order, filed March 20, 2003, under its
Contentions, the DNRC stated that:
The DNRC does not contest Martinsdale Colony's assertions concerning the validity, value or use of the water rights represented by Claim Nos. 40A-W-211300, 40A-W-211301, 40A-W-211302, 40A-W-211303, and 40A-W-211304. The DNRC also will not argue concerning what constitutes a filing or whether the Water Court should recognize [the five identified water right claims] as timely filed. The DNRC is remaining in this case only to establish that the agency properly handled the water rights claims . . . .
At the beginning of its opening statement, the DNRC further stated that:
MR. ROBINSON . the Department of Natural Resources' stance in this case has evolved as, as things have progressed and, and now that there are no other water users participating in this case, and also the Department has determined that whether or not Martinsdale's claims are subordinated, will not affect the DNRC's water rights.
3 Because of that, it has opened up some areas of agreement that the Department did not feel free to agree to earlier. Essentially, in the first 21 items of fact that Martinsdale puts in their pretrial brief, the Department essentially can agree to the first 21 of them and 24 through 27. We cannot agree to number 22 and number 23, which deal with whether or not it was communicated to the DNRC that the Martinsdale claims should be filed on March 8th, 19 . . .
MR. OVEN: . . . '82.
MR. ROBINSON: 1982, that's right. We are not here to argue any of the, the equities or any interpretations of law, we're here only to testify as to the facts the way we see them. And, we are here to contest any implication that these claims were mishandled in any way by the Department of Natural Resources.
Transcript at page 8.
Therefore, the following twenty-five paragraphs reflect the Agreed Facts presented to the Court by the DNRC and Martinsdale Colony. The reference to affidavits, exhibits, and other supporting documents following each Agreed Fact are references to documents attached to the
Martinsdale Colony's Prehearing Brief The Court is not adopting these Agreed Facts, but is simply citing to them to highlight the general agreements shared by the only two parties in this case.
AGREED FACTS
1. Martinsdale Colony ("Martinsdale") is a religious community consisting of23 families and 121 people. Approximately 46 children reside at Martinsdale. All members of the community live and work on the Martinsdale property, and all depend on the Colony for their livelihood and support. See Affidavit of Peter Wipf at It 2 (attached hereto as Exhibit F).
2. Martinsdale was established in 1958. Farming and ranching have been the sole way of life and livelihood for the people of Martinsdale since that time. Since 1958, the members of Martinsdale have been active and productive members of the local community. Throughout the history of the Martinsdale, its members have consistently contributed to the health and well-being of Martinsdale, the sun-ounding communities, and to the State ofMontana as a whole. Id. at 1[ 3.
4 3. Martinsdale has always worked amicably with all water- users of the Musselshell River System. Martinsdale has always taken an active role in ensuring the function and viability of the Musselshell River water resource as a whole. Martinsdale has contributed to the health of the water resource by donating both time and equipment in the creation and maintenance of physical improvements to the Musselshell River water system. Id. at It 4.
4. Martinsdale has always strived to improve the efficiency of its own water use, including the installation of an irrigation pivot and the installation of irrigation wheel lines. These improvements have led to a more efficient and effective use of water and have increased the productivity of the Musselshell River resource as a whole. In total, Martinsdale has invested over $100,000 in improving these Martinsdale Colony Water Rights. Id. at 5.
5. At issue in this case are five valid and existing water rights owned by Martinsdale. These water rights have been described as follows:
Water Right No. Priority Date Exhibit No. 40A-W-211300-00 May 10, 1905 A 40A-W-211301-00 May 20, 1875 40A-W-211302-00 June 28, 1907 40A-W-211303-00 May 6, 1892 40A-W-211304-00 July 15, 1890
Attached as Exhibits A through E hereto are copies of the claim forms for the above-listed Water Rights, collectively referred to as the "Martinsdale Colony Water Rights".
6. The Martinsdale Colony Water Rights, and in particular, Water Right Nos. 40A-W-211301-00, 40A-211302-00, and 40A- 211303-00, are the primary water rights for Martinsdale. Irrigation from these water rights is used to grow the crops that the people of Martinsdale depend on for their sustenance. Exhibit F at ij 7.
7. The Martinsdale Colony Water Rights are necessary for the survival of Martinsdale. Without irrigation from these water rights, Martinsdale cannot continue to exist. Id. at 118.
8. The Martinsdale Colony Water Rights have, prior to this year, been used to irrigate approximately 923 acres of ground. The Martinsdale Colony Water Rights are absolutely necessary to the well being and survival of Martinsdale, which uses the water from these
5 rights to grow its crops and gardens. A large percentage of the food produced with these water rights is used for the subsistence of the Colony members. Id. at 9.
9. The Martinsdale Colony Water Rights have been put to continuous and beneficial use each and every year since their original priority dates. Water Right No. 40A-W-211301-00, for instance, has been in continuous and beneficial use for over 127 years. The most "junior" of the Martinsdale Colony Water Rights has been in continuous and beneficial use for nearly 95 years. Id. at If 9.
10. The Martinsdale Colony Water Rights, due to their history of continuous use, their age, their volume, and their proximity to the headwaters of the Musselshell River, are well-known to the State of Montana. The State of Montana has documented the use of these water rights since at least 1949. See State of Montana Water Resources Survey for Meagher County (relevant portion attached hereto as Exhibit G); see also Deposition of Craig Dubois at 61-62 (attached hereto as Exhibit H).
11. Other than the Martinsdale Colony Water Rights and a number of small stock water rights not at issue in this case, the only other surface water rights owned by Martinsdale Colony are identified as 40A-W-000989-00 and 40A-W-000990-00. Water Right Nos. 40A-W-000989-00 and 40A-W-000990-00 were filed with the State of Montana by Martinsdale Colony as part of a banking transaction on February 29, 1980 and are not involved in this case. Exhibit F at ¶ 1 .
12. Water Right Nos. 40A-W-000989-00 and 40A-W-000990- 00 are small water rights from the Daisy Dean Creek and cannot provide enough water for the survival of Martinsdale Colony. Id. at if 12.
13. Springwater Colony is a religious community located 25 miles east of Martinsdale. See Deposition of Mike Kleinsasser, dated February 6, 2003 at 7 (attached hereto as Exhibit I). In 1981, some of the members of Martinsdale separated from that Colony to form the Springwater Colony. Springwater Colony has since been a separate and distinct entity from Martinsdale. Springwater Colony has a number of water rights utilized solely by Springwater Colony. Martinsdale does not and cannot utilize water from the Springwater Colony water rights. Due to the religious and financial connection between the colonies, Martinsdale has been listed as a co-owner on all of the Springwater Colony Water Right claim forms.
6 14. On March 8, 1982, Mike Kleinsasser was the Secretary- Treasurer of Springwater Colony. Prior to the split of Springwater Colony from Martinsdale in 1981, Mike Kleinsasser had been the Secretary-Treasurer of Martinsdale. Mike Kleinsasser's position as the Secretary-Treasurer of Martinsdale gave him knowledge of the location and legal description of the Martinsdale Colony Water Rights. Id. at 7-8.
15. In March of 1982, due to Mike Kleinsasser's position as the Secretary-Treasurer of Springwater Colony and his former position as the Secretary-Treasurer of Martinsdale, Mike Kleinsasser was given the task of filing the water rights for both colonies. Id. at 8.
16. On March 8, 1982, Mike Kleinsasser traveled to the Department of Natural Resources and Conservation ("DNRC") regional office in Lewistown, Montana with 26 partially completed water right claim forms. Twenty-one of those claim forms were for Springwater Colony water rights and 5 of those claim forms were for the Martinsdale Colony Water Rights listed above. Id. at 9.
17. Mike Kleinsasser met with DNRC employees Sharon Gregory and Craig Dubois on March 8, 1982 for the purpose of completing and filing the claim forms for both Springwater Colony and Martinsdale Colony. Id. At that time, Sharon Gregory was employed by the DNRC as a water rights analyst. See Deposition of Sharon Gregory at 4 (attached hereto as Exhibit J). As a water rights analyst, one of Ms. Gregory's duties was receiving water right claim forms for filing. See id. at 8. Craig Dubois was employed by the DNRC as a water resource specialist. Exhibit H at 5.
18. On March 8, 1982, Ms. Gregory worked with Mike Kleinsasser in collecting information for the claim forms and in filling out the claim folins. Exhibit J at 6-7. Mr. Dubois then notarized all 26 of the completed claim forms presented to him by Mike Kleinsasser and Sharon Gregory. See Exhibits A-E; Exhibit H at 17-18.
19. On March 8, 1982, after working with Ms. Gregory and Mr. Dubois, all of the Martinsdale claim forms were fully completed with all necessary information, were fully executed, and were notarized by DNRC employee Craig Dubois. See Exhibits A-E; Exhibit I at 11.
20. Furthermore, prior to the May 7 , 1982 deadline, Mike Kleinsasser, acting on behalf of both Martinsdale Colony and Springwater Colony, paid the DNRC the statutory maximum filing
7 fee of $480.00 for the filing of both colonies' water right claims. Exhibit Tat 11-12.
21. After consultation with Ms. Gregory, Mike Kleinsasser decided that he would not leave the original Springwater Colony claim forms with the DNRC until he obtained 20 use affidavits in support of the Springwater Colony claims. Id. at 11. Mike Kleinsasser acquired these affidavits on March 10, 1982 and the Springwater Colony claim forms were returned to the DNRC office and filed on March 23, 1982 and April 20, 1982. See examples of Springwater Colony Water Right Claim forms containing use affidavits (copies of Water Right Nos. 40A-W-145777, 40A-W- 145786, 40A-W-145796 attached hereto as Exhibits K-M).
24. In May of 1985, Martinsdale was notified by the DNRC that the Temporary Preliminary Decree for Basin 40A was issued. At that time, Peter Wipf, the newly appointed Secretary-Treasurer for Martinsdale, learned that the Martinsdale Colony Water Rights were not included within the Temporary Preliminary Decree. See Exhibit F at if 14.
25. Peter Wipf immediately asked Mike Kleinsasser about whether the claim forms had been filed. Mike Kleinsasser infolined him that the forms had been filed on March 8, 1982. See id. at IT 15. Mike Kleinsasser also infolined Peter Wipf that on March 8, 1982 he had instructed the DNRC to file the fully completed, executed, and notarized claim forms on March 8, 1982. Id.
26. In May of 1985, the claim forms for the Martinsdale Colony Water Rights were discovered by Peter Wipf in the Martinsdale files. These claim fauns were taken, without alteration Or changes of any kind, to the DNRC office on June 3, 1985. Id. at 111 16. The Martinsdale Colony Water Right claim forms were stamped "Received" by the DNRC on June 3, 1985. Exhibit A-E.
27. Martinsdale has always considered the Martinsdale Colony Water Rights timely filed. Exhibit F at 1117.
Martinsdale Prehearing Brief, pp. 2-8, Filed March 5, 2003. (As previously noted, the Court has not adopted these Agreed Facts. Also, the reference to affidavits, exhibits, and other supporting documents following each Agreed Fact are references to documents attached to Martinsdale's Prehearing Brief and are not references to documents attached to these Findings, Conclusions, and Memorandum.)
8 In its closing argument, following the evidentiary hearing, the DNRC further stated:
MR. ROBINSON: . . . . I think the Judge has heard what the facts are and has heard some eloquent arguments as to why the Colony should get their water. And, as I said before, we won't oppose that. All's we will oppose is any finding that those claims were mishandled by the DNRC. And that's it.
Transcript at 85.
Based solely on the record established by the parties during the May 8, 2003
evidentiary hearing, and upon the respective arguments of counsel, the Court now makes the
following:
FINDINGS OF FACT
1. Martinsdale Colony is a religious community, located near Martinsdale, Montana.
It was established in 1958. Agreed Facts 1 and 2.
2. At issue in this case are claims to five existing water rights owned by Martinsdale
Colony, collectively referred to by this Court as the "Martinsdale Colony claims." These claims are
described as follows:
Water Right No. Priority Date Claimant Exhibit No. 40A-W-211300-00 May 10, 1905 1 40A-W-211301-00 May 20, 1875 2 40A-W-211302-00 June 28, 1907 3 40A-W-211303-00 May 6, 1892 4 40A-W-211304-00 July 15, 1890 5
Agreed Fact 5 as modified by Claimant's Exhibits 1-5.
3. Springwater Colony, Inc. (Springwater Colony), is a religious community located
25 miles east of Martinsdale Colony. In 1981, some of the members of Martinsdale Colony
separated to form the Springwater Colony, which has since been a separate and distinct entity from
Martinsdale Colony. Springwater Colony has a number of water rights utilized solely by
Springwater Colony. Martinsdale Colony does not and cannot utilize water from the Springwater
9 Colony water rights. Agreed Fact 13 and Transcript at 20. Due to the religious and financial connection between the colonies, Martinsdale Colony was listed as a co-owner on all of the
Springwater Colony Water Right claim forms. Agreed Fact 13. Springwater Colony, however, was not listed as a co-owner on the five Martinsdale Colony water right claims.
4. On March 8, 1982, Mike Kleinsasser was the Secretary-Treasurer of Springwater
Colony. Prior to the split of Springwater Colony from Martinsdale Colony in 1981, Kleinsasser had been the Secretary-Treasurer and the agricultural field manager of Martinsdale Colony. His position as the Secretary-Treasurer of both colonies and as the agricultural field manager of Martinsdale
Colony made him "intimately familiar" with the Martinsdale Colony claims. It also gave Kleinsasser knowledge of the location and legal descriptions of both colonies' water rights, and he was therefore given the task of filing the water rights for both colonies. Agreed Fact 14 and Transcript at 22-23.
5. On March 8, 1982, Mike Kleinsasser met with DNRC employees Sharon Gregory and Craig Dubois at the Lewistown DNRC regional office, for the purpose of completing and filing the claim forms for both Springwater Colony and Martinsdale Colony. Agreed Facts 16 and 17. At that time Sharon Gregory was employed by the DNRC as a "clerk/water rights analyst." Transcript at 54. As a clerk/water rights analyst, one of Ms. Gregory's duties was to receive water right claim forms for filing. Id. Craig Dubois was employed by the DNRC as a water resource specialist and notary public. Agreed Fact 17 and Transcript at 63.
6. Kleinsasser testified that Ms. Gregory worked with him from approximately 9 a.m. to 5 p.m. on March 8, 1982, helping him to collect information for the Martinsdale Colony and
Springwater Colony claim forms and to fill in the claim forms. Agreed Fact 18 and Transcript at
51-52. At the request of Kleinsasser and Ms. Gregory, Craig Dubois notarized all five of the
Martinsdale Colony claim foi is on March 8, 1982. Transcript at 63.
10 7. Kleinsasser testified that by 5 p.m. on March 8, 1982, all five of the Martinsdale
Colony claim forms were fully completed, fully executed and notarized, and that no further
supplementary documentation or information was necessary to file the claims. Agreed Fact 18 and
Transcript at 42.
8. Kleinsasser testified that after the five Martinsdale claims were fully completed,
executed and notarized on March 8, 1982 at the DNRC regional office, he requested Ms. Gregory to file the five Martinsdale Colony claims. He left the DNRC office that day believing the five claims were duly filed. He testified as follows:
MR. OVEN: And, after the claim forms were fully verified, fully completed, fully signed, and fully executed and notarized by the DNRC employee Craig Dubois on March the 8th, 1982, did you request that they be filed?
MR. KLEINSASSER: Yes.
MR. OVEN: Who did you tell that to?
MR. KLEINSASSER: Sharon Gregory.
Transcript at 42.
MR. OVEN: And, when you were completed with the Martinsdale Colony claim forms, and when they were fully verified and notarized and executed and ready to be filed, did you ask that they be filed?
MR. KLEINSASSER: Yes.
MR. OVEN: Did you have any reason at all to take the Martinsdale Colony claim forms with you?
MR. KLEINSASSER: No reason at all.
Transcript at 51. See also Transcript at 50 and 52
9. Ms. Gregory neither confirmed nor denied Kleinsasser's testimony. She testified that she could not remember anything about the meeting, because it was too long ago to remember
11 and she had worked with thousands of claimants. Transcript at 54, 57. Dubois also testified that he had no specific recollection of the events occurring on March 8, 1982 and that the Lewistown
DNRC office "processed in the neighborhood of 40,000 claims." Transcript at 66-67.
10. After consultation with Ms. Gregory, Kleinsasser decided that he would not leave the original Springwater Colony claim forms with the DNRC until he obtained use affidavits in support of the Springwater Colony use claims. Transcript at 41. Kleinsasser testified that he could not remember whether he left the DNRC office that day, twenty some years ago, with the five
Martinsdale Colony claim forms. He thought he left them at the DNRC office on that day and he
"thought everything was done." "We started out with Martinsdale, as soon as the office opened, when they were finished, I thought everything was done." Transcript at 46-47, 50-52.
11. Kleinsasser subsequently secured signed and notarized use affidavits for the
Springwater Colony claims and deposited the completed Springwater Colony claim forms, together with the use affidavits, with the DNRC on March 23 and April 20, 1982. Agreed Fact 21.
12. Prior to the April 30, 1982 deadline, Mike Kleinsasser, acting on behalf of both
Martinsdale Colony and Springwater Colony, paid the DNRC the statutory maximum filing fee of
$480.00, which he had been told was the maximum filing fee for the filing of both colonies' water right claims. Agreed Fact 20, Transcript at 43, 44, and 47.
13. Peter Wipf and Kleinsasser testified that Martinsdale Colony did not discover that the five Martinsdale Colony claims had not been adjudicated as timely filed claims until May of 1985, when Martinsdale Colony received notice of the Temporary Preliminary Decree for the
Upper Musselshell River (Basin 40A) and discovered that the five claims were not included. Agreed
Fact 24, Transcript at 20 and 21. At that time, Wipf asked Kleinsasser whether the claims had been filed, and Kleinsasser replied that he had instructed the DNRC to file the fully completed, executed,
12 and notarized claim forms on March 8, 1982, and that he believed they had been filed on that date.
Agreed Fact 25, Transcript at 21 and 23.
14. Shortly thereafter, Wipf and Kleinsasser discovered the five completed
Martinsdale Colony claim forms "in Mike's files." Transcript at 23-24. There were no DNRC
markings on the claim forms to indicate that they had been stamped "Received" or processed, and
neither Kleinsasser, Wipf, nor the DNRC could explain how the claim forms got into Mike's files.
No one could remember. Transcript at 44.
15. The five Martinsdale Colony claim forms were taken, without alteration or
changes of any kind, to the DNRC office at Lewistown on June 3, 1985 and processed. Agreed Fact
26, Transcript at 24 and 25. At that time, the five claim forms were stamped "Received" as of June
3, 1985. See Claimant's Exhibits I -5.
16. The Abstract of Water Right Claim for each of the five claims involved in this case can-y the following remarks:
CLAIM WAS NOT INCLUDED IN THE BASIN 40A TEMPORARY PRELIMINARY DECREE ISSUED 05/07/85.
CLAIM FILED LATE 06/03/85. IN ADDITION TO BEING SUBORDINATE TO ALL FEDERAL AND INDIAN RESERVED RIGHTS AND ALL VALID TIMELY FILED CLAIMS BASED ON STATE LAW, THIS CLAIM MAY ALSO BE SUBORDINATE TO CERTAIN PERMITS AND RESERVATIONS OF WATER. SEE SECTION 85-2-221, MONTANA CODE ANNOTATED.
17. The Martinsdale Colony has always considered its five Martinsdale Colony claims to be timely filed. Agreed Fact 27.
18. A preponderance of the evidence indicates that the five Martinsdale Colony claims were deposited with the DNRC, the proper custodian of the claims, on March 8, 1982. A clerical mistake was later made on the same day, and the five Martinsdale Colony claims were
13 inadvertently returned to Martinsdale Colony, and not retained by the DNRC for administrative
processing.
From these findings, the Court now makes the following:
CONCLUSIONS OF LAW
The Montana Water Court and the Chief Water Judge have jurisdiction over all matters
relating to the determination of existing water rights within the boundaries of the state of Montana,
including any existing water rights involved in a water distribution controversy certified to the Water
Court by the District Court. Sections 3-7-224 and 85-2-406(2)(b), MCA.
II
Section 85-2-221(1), MCA, as ordered by the Montana Supreme Court, required all
existing water right claims to be filed with the DNRC by 5:00 p.m. on April 30, 1982. Montana
Supreme Court Order No. 14833, December 7, 1981; In the Matter of the Adjudication of the Water
Rights Within the Yellowstone River (1992), 253 Mont. 167, 171, 832 P.2d 1210.
III
Although the phrase "to file" is not defined in the Water Use Act, it has long been the general rule in Montana and other jurisdictions that "to file" papers means "to deposit them with the proper custodian for keeping. The marking of them 'Filed' by the clerk is another matter, and is not the filing." In re Dewar 's Estate (1891), 10 Mont. 426, 437, 25 P. 1026, 1028. Thus, if a paper that should be filed on a certain day is timely delivered to the proper custodian, the claimant cannot be put into default because the custodian mislaid the paper or failed to put his file mark on it, for the marking of the paper as "filed" by the custodian is merely evidence of the filing, and is not the filing, itself. Pierce v. Pierce (1939), 108 Mont. 42, 47, 89 P.2d 269, 271.
14 In Crye v. Edwards (Ariz. 1993), 873 P.2d 665, 667-68, for example, the Arizona
Supreme Court affirmed the lower court's order to correct an omission by the clerk of the superior
court in recording the filing of a judgment-renewal affidavit. The Arizona Supreme Court found
sufficient evidence to support the lower court's conclusion that the plaintiff had properly submitted the renewal affidavit to the clerk of court for filing within the statutory deadline, and that the absence of the affidavit from the clerk's record was the product of the clerk's error. "The duty to file a paper is discharged when the filer places the paper in the hands of the proper custodian at the proper time and in the proper place." Id. at 668.
Iv
The five Martinsdale Colony claims were physically submitted to the DNRC before the filing deadline of April 30, 1982. Mike Kleinsasser's testimony and Craig Dubois' March 8, 1982 notarization date on the Martinsdale Colony claims support this conclusion. The claims were inadvertently returned to Martinsdale Colony. That clerical mistake does not alter the fact that the five Martinsdale Colony claims were physically submitted to the DNRC, the proper custodian, before the filing deadline of April 30, 1982.
V
Clerical mistakes in judgments, orders or other parts of the record, and in pleadings, and errors therein arising from oversight or omission may be corrected by the Court at any time of its own initiative or on the motion of any party and after such notice, if any, as the Court orders. Rule
60(a), M.R.Civ.P.
VI
The five Martinsdale Colony claims at issue here, 40A-W-211300-00, 40A-W-211301-
00, 40A-W-211302-00, 40A-W-211303-00, and 40A-W-211304-00, were timely filed under Section
15 85-2-221(1), MCA, and should not be classified as "late claims" pursuant to Section 85-2-221(3),
MCA. The "late claim" issue remarks set forth under Finding of Fact 16 shall be removed from these claims and replaced with the following or similar remark:
CLAIM WAS NOT INCLUDED IN THE BASIN 40A TEMPORARY PRELIMINARY DECREE ISSUED 05/07/85. IN MARCH 2004, IN CASE WC- 2002-03, THE WATER COURT DETERMINED THAT THIS CLAIM WAS FILED IN A TIMELY MANNER AND IS NOT A LATE CLAIM.
MEMORANDUM
The Montana Supreme Court, in an opinion delivered by Mr. Justice Stewart, recognized that in circumstances where "the filing of a paper [is] necessary to protect rights of a party filing it" the following standard applies:
"[F]or some purposes the mere deposit of a paper by a party or his attorney with the clerk of court, and his receipt thereof, of itself, constitutes a 'filing." I [Justice Stewart writing] quite agree with this. Thus if an attorney delivers to the clerk a paper that should be filed on a certain day, the clerk cannot put him in default by mislaying it, or failing to put his file mark on it.
Pierce, 108 Mont. at 47, citing Morganv. Williams, 95 So. 611,615 (Fla. 1922). [Bracketed material supplied.]
Accordingly, under Montana law, the date the five Martinsdale Colony claims were stamped "Received" by the DNRC is not dispositive of when the forms were "filed." What is dispositive is the date the statements of claim were deposited with the DNRC for filing. Pierce, 108
Mont. at 45; In Re Dewar's Estate, 10 Mont. at 437. Under the facts of this case, the five
Martinsdale Colony claims were first deposited with the DNRC for filing on March 8, 1982, and were therefore filed by Martinsdale Colony on March 8, 1982.
The claims were notarized by a DNRC employee in the DNRC Lewistown office on
March 8, 1982. Mike Kleinsasser testified that after the five Martinsdale claims were fully signed, executed and notarized on March 8, 1982, he requested that they be filed. The DNRC is the proper
16 custodian. No evidence was presented to refute Kleinsasser's testimony that he submitted the five
fully signed, executed and notarized Martinsdale Colony claims to the DNRC on March 8, 1982.
By inadvertence, the claims were not retained by the DNRC and processed on March
8, 1982. Precisely how such a mistake was made will never be known, but both parties agree that this
mistake was made. What happened to the claims after they were legally filed with the DNRC on
March 8, 1982 does not affect their status as being timely filed claims under Section 85-2-221(1),
MCA.
CONCLUSION
The five Martinsdale Colony claims at issue here, 40A-W-211300-00, 40A-W-211301-
00, 40A-W-211302-00, 40A-W-211303-00, and 40A-W-211304-00, were timely filed under Section
85-2-221(1), MCA, and should not be classified as late claims.
DATED this 7 day of no elf , 2004.
C. Bruce Loble Chief Water Judge
SERVICE LIST
Martinsdale Colony Richard Van Campen PO Box 152 PO Box 368 Martinsdale MT 59053 Harlowton MT 59036
Jeffery J. Oven Fred W. Robinson, Attorney Colby L. Branch MT Dept. of Natural Resources Attorneys at Law and Conservation PO Box 2529 Water Resources Division Billings MT 59103-2529 PO Box 201601 Helena MT 59620-1601
17 Montana Water Court PO Box 1389 Bozeman MT 59771-1389 (406) 586-4364 1-800-624-3270 (IN-STATE) PAX: (406) 522-4131
IN THE WATER COURT OF THE STATE OF MONTANA
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MARTINSDALE COLONY CASE NO. WC-2002-03 ) Plaintiff and Claimant ) Certified From:
V. ) Fourteenth Judicial District Court Cause No. DV-02-03 ) RICHARD VAN CAMPEN, in his capacity as ) Chief Water Commissioner for the Musselshell ) River Enforcement Project FILED ) Defendant ) MAR 17 2804 ) ) Montana Water Court
ORDER
On June 14, 2002, the District Court of the Fourteenth Judicial District, Musselshell
County, the Honorable Randal I. Spaulding, District Judge, issued its Certification Order. In its
Order, the District Court certified five statements of claim to the Water Court "for a determination of their scope and extent as existing rights under Article IX, Section 3 of the Montana Constitution."
The five certified claims are 40A-W-211300-00, 40A-W-211301-00, 40A-W-211302-00, 40A-W-
211303-00, and 40A-W-211304-00. All five claims were filed by Martinsdale Colony, the plaintiff.
An evidentiary hearing was held on May 8, 2003. The sole purpose of the hearing was to determine whether the five Martinsdale Colony claims were "late claims."
For the reasons cited in the Court's Findings of Fact, Conclusions of Law, and
Memorandum filed on March 17, 2004, the five Martinsdale Colony claims at issue here were timely filed under Section 85-2-221(1), MCA, and should not be classified as "late claims" pursuant to
Section 85-2-221(3), MCA. Following the expiration of at least thirty days, the Water Court will revise the issue remarks on the abstracts of the five Martinsdale Colony water right claims, in accordance with
Conclusion of Law VI, and will formally advise the District Court of the resolution of the certified issue.
DATED this day of /161-12eh' , 2004.
C. Bruce Loble Chief Water Judge
SERVICE LIST
Richard Van Campen Martinsdale Colony PO Box 152 PO Box 368 Martinsdale MT 59053 Harlowton MT 59036
Jeffery J. Oven Fred W. Robinson, Attorney Colby L. Branch MT Dept. of Natural Resources
Attorneys at Law and Conservation PO Box 2529 Water Resources Division Billings MT 59103-2529 PO Box 201601 Helena MT 59620-1601
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