Avista Corp., Bell, Fullerton, Halama, Herbert, Locatelli, Montana Fish, Wildlife & Parks, Partin, Stubblefield, US (Bureau of Indian Affairs), US (Fish& Wildlife Service), USDA Forest Service, Vaughn

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Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (In-state only) (406) 586-4364 Fax: (406) 522-4131 IN THE WATER COURT OF THE STATE OF MONTANA CLARK FORK DIVISION WESTSIDE SUBBASIN OF THE BITTERROOT RIVER BASIN (76HF) ******************************************************** IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE WESTSIDE SUBBASIN OF THE BITTERROOT RIVER DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE WESTSIDE SUBBASIN OF THE BITTERROOT RIVER IN RAVALLI COUNTY, MONTANA CASE NO. 76HF-378 ILED F 76H-W-107741-00 76H-W-107822-00 JAN 22 2003 76H-W-131022-00 76H-W-151450-00 Montana "WU Water Court 76H-B-210942-00 CLAIMANT: Daniel J. Bell and Sally L. Bell; Mario Locatelli; Chester D. Herbert; Dwight Partin; Donald M. Fullerton and Jeanie EA Fullerton; Fred C. Vaughn and Doug Vaughn; Gary L. Stubblefield; Steven F. Halama OBJECTOR: United States of America (USDI Fish & Wildlife Service); United States of America (USDA Forest Service); United States of America (Bureau of Indian Affairs); Avista Corporation; Montana Department of Fish, Wildlife & Parks ORDER RECOMMITTING CLAIMS TO WATER MASTER Pursuant to Montana Code Annotated, §85-2-233 (5), the claims in the above-entitled case were assigned to Water Master Douglas Ritter. The Water Master filed a report containing Findings of Fact and Conclusions of Law with the Clerk of Court. Copies of the report were served upon the parties on October 29, 2002. In Finding of Fact 6 and12 of the report, the Master recommends adding a ditch remark proposed by the United States Forest Service. The proposed remark reads as follows: THE NORMAL COMBINED FLOW OF WATER RIGHTS CONVEYED BY THE WALDHERR-MOORE-HINRICKS DITCH DOES NOT EXCEED 6.60 CFS, EXCEPT DURING TIMES OF HIGH SPRINGTIME RUNOFF IN MILL CREEK AND DURING PERIODS WHEN STORED WATER FROM MILL LAKE IS BEING RELEASED INTO MILL CREEK AND CONVEYED BY THIS DITCH. DURING THESE PERIODS, THE COMBINED FLOW RATE OF WATER RIGHTS CONVEYED BY THE DITCH MAY REACH 9.50 CFS. On November 13, 2002, Daniel J. and Sally L. Bell, filed their written objection to including the ditch remark on their claim. On November 25, 2002, the Court issued its Order Setting Briefing Schedule and Deadline to File Application for Hearing on Objection to Master's Report. On December 23, 2002, the United States of America (USDA-Forest Service) filed its Answer Brief on Claimant Bells' Objection the Master's Report. No further briefs were filed. In its Answer Brief, the USDA-Forest Service expressed concern over the lack of specificity in the Bells' objection, but stated that the issue of whether the Water Court should include a ditch capacity remark on the Bell claim was not ripe for a decision on the merits at this time. The USDA-Forest Service requested the Court to remand the case to the Water Master for further proceedings. The Court will do so. The Forest Service appears to have adopted a policy designed to insert ditch capacity remarks on claim abstracts. Since this case is being returned to the Water Master, the Master should review the benefits and disadvantages of this policy. To guide the Master's review, the following comments are offered. The Water Court should not routinely add remarks to claim abstracts just because parties ask the Court to do so. Any remark inserted on an abstract should provide a tangible benefit to the claim. Straight forward remarks that facilitate the administration and distribution of water rights by the water users or water commissioners, or that identify the existence of a private agreement are appropriate. For example, inserting a remark specifying that certain claims, by agreement, have been voluntarily subordinated to other specific claims would be appropriate. Remarks that give an impression that they represent a judicial decision on some issue (when no such decision was made) or that they are binding on other water users not in privity to a stipulated remark, or that are simply too vague are not appropriate. 2 It needs to be remembered that the abstract of water right claim is the document that most future water users and water commissioners will follow. The reports and opinions authored by water masters and water judges will rarely be reviewed once the time for appeal has elapsed. Therefore, each abstract issued by the Water Court must make sense. The remark proposed by the Forest Service in this case could give the impression that the Water Court, after a thoughtful consideration of evidence presented to it, has adjudicated a "normal" ditch capacity and a "high springtime runoff' ditch capacity, when, in fact, this remark is merely the product of an agreement that the Forest Service thought it had with some of the parties in this case, but not all of the water users using this ditch. Since not all of the water users on this ditch are parties in this case or have their claims before the Court, the purpose and utility of the proposed remark is not obvious. If this remark is intended to affect non-party water users on the Waldherr-Moore-Hinricks ditch, then the insertion of this remark on some water right claims raises Due Process considerations for the non-party water users. Accordingly, the Master should determine whether the proposed remark is appropriate under the circumstances of this case. With these comments and pursuant to Rule 53(e)(2), M.R.Civ.P, this matter is recommitted to the Water Master for further proceedings. DATED this g. day of J i ¢J A-P-7 C. Bruce Loble Chief Water Judge 3 , 2003. CERTIFICATE OF SERVICE I, Sherry Ford, Deputy Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above ORDER RECOMMITTING CLAIMS TO WATER MASTER was duly served upon the persons listed below by depositing the same, postage prepaid, in the United States mail. Daniel J. & Sally L. Bell 1097 Cherry Orchard Loop Hamilton MT 59840 Steven F. Halama 1097 Outlaw Trail Hamilton MT 59840 R. Blair Strong, Attorney 717 West Sprague Ave: Ste 1200 Spokane WA 99201 Mario Locatelli 165 Mountain Goad Rd Hamilton MT 59840 Bret M. & Kathleen M. George 1021 Burton Street Missoula MT 59802-2113 Chester D. Herbert 987 E 13800 S Draper UT 84020 Harry C. & Delilah M. Wuestewald 471 Queens Way Hamilton MT 59840-9429 Susan Schneider, Attorney US Department of Justice Indian Resources Section 999 18" Street, Suite 945 Denver CO 80202 Dwight Partin !Mail Returned 4-29-02] Donald M. & Jeannie EA Fullerton 822 Cherry Orchard Loop Hamilton MT 59840 Fred C. & Doug Vaughn 1033 Cherry Orchard Loop Hamilton MT 59840 Gary L. Stubblefield 1027 Cherry Orchard Loop Hamilton MT 59840 DATED this Roselyn Rennie Office of the Field Solicitor 316 N. 26' Street Billings MT 59101 US Fish and Wildlife Service Water Resources Division PO Box 25486, DFC Denver CO 80225-0486 Jody Miller, Special Assistant United States Attorney PO Box 7669 Missoula MT 59807 Clay o Sherry Ford Deputy Clerk Bureau of Indian Affairs Water Resources Office 316 North 26 th Street Billings MT 59101 G. Steven Brown, Attorney 1313 Eleventh Avenue Helena MT 59624 COURTESY COPY: Lex Herbert 1008 US Hwy 93 N Victor MT 59875

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