Forbes, Montana Fish, Wildlife & Parks, Potosi Generating Station, US (Bureau of Land Management)
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IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION JEFFERSON RIVER BASIN (41G) ************** * ***** IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE JEFFERSON RIVER DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE JEFFERSON RIVER IN BROADWATER, GALLATIN, MADISON, JEFFERSON AND SILVER BOW COUNTIES, MONTANA. ) ) ) ) ) ) ) ) ) ) CLAIMANT: William G. and Laura E. Forbes CASE NO. 41G-47 41G-W-042432-00 41G-W-042433-00 41G-W-042434-00 FILED NOV - 6 1992 Montana Water Court OBJECTOR: United States of America (Bureau of Land Management) Potosi Generating Station Montana Department of Fish, Wildlife and Parks ORDER COMPELLING DISCOVERY On October 9, 1992, the Montana Department of Fish Wildlife and Parks (DFWP), objector in the above-entitled case, filed its Motion to Compel Answers to Interrogatories and supporting brief. Exhibit A to the Motion indicates that DFWP served interrogatories upon the claimants on May 17, 1990. Exhibits B, D, and E to DFWP's motion indicate that DFWP contacted claimants' attorney on several occasions requesting that the claimants respond to the interrogatories. As of this date, the claimants have not responded to the interrogatories. In its Motion DFWP requests the Court for its Order compelling the claimants to file answers to its interrogatories and for an award of reasonable costs and attorneys fees incurred in obtaining such Order. Rule 37, M.R.Civ.P. allows application by a party for an Order Compelling Discovery when the opposing party fails to respond to reasonable discovery requests. Subdivision (a)(4) of the Rule provides that "the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust." Rule 37(a)(4) does not require a hearing but merely an opportunity for a hearing on expenses. It is the burden of the party opposing the award to request a hearing on whether such an award is warranted under the circumstances. State ex rel. Burlington Northern R.R. Co. v. District Court, 239 Mont. 207, 222, 779 P.2d 885 (1989). The objector certified that the motion was served on all parties in the case. Over 10 days, plus an additional 3 days for service by mail, have elapsed since the October 9, 1992 filing of the motion. Rule 6, M.R.Civ.P. No response to the motion has been filed. Thus, the record does not indicate any justified opposition to the motion. Furthermore, because no response has been filed, there is nothing in the record at this time demonstrating any circumstances that may make an award of expenses unjust. See e.g., Granite County v. Komberec, 245 Mont. 252, 800 P.2d 166 (1990). Failure to file an answer brief by the adverse within ten days shall be deemed an admission that the motion is well taken. Rule 2, Montana Uniform District Court Rules. Therefore, pursuant -2- to Rule 37, M.R.Civ.P. and Montana Uniform District Court Rule 2, DFWP's Motion to Compel Answers to Interrogatories is deemed well taken, and it is hereby ORDERED that the claimants shall file answers to DFWP's interrogatories by December 15, 1992, FURTHER ORDERED that the claimants and the claimants' attorney shall pay DFWP's reasonable expenses incurred in obtaining this Order, including attorney's fees, and FURTHER ORDERED that DFWP shall submit its Affidavit of reasonable expenses incurred in obtaining this Order and serve a copy upon the claimants by December 15, 1992. Claimants shall have until January 6, 1992 to file a response opposing the amount claimed as expenses incurred by DFWP in obtaining this Order. DATED this , day of November 1992. William G. Forbes P. 0. Box 656 Pony, MT 59747 R. Thomas Garrison, Attorney 120 W. Wallace St. Virginia City, MT 59755 United States of America Bureau of Land Management P.O. Box 36800 Billings, MT 59107 Eric S. Gould, Attorney U. S. Dept. of Justice Environment & Natural Resources Division P. O. Box 663 Washington, DC 20044 Potosi Generating Station 5160 Wiley Post Way Salt Lake City, UT 84116 Matt Williams, Attorney 506 E. Babcock Bozeman, MT 59715 G. Steven Brown, Attorney 1313 Eleventh Ave. Helena, MT 59601 FILE OCT - 9 1992 Montana Water Court IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION JEFFERSON RIVER BASIN (41G) IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE JEFFERSON RIVER DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE JEFFERSON RIVER IN BROADWATER, GALLATIN, MADISON, JEFFERSON AND SILVER BOW COUNTIES, MONTANA. ) ) ) ) ) ) ) ) 41G-47 CASE NO. CLAIM NO. 41G-W-042432 41G-W-042433 41G-W-042434 MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND SUPPORTING BRIEF I. MOTION TO COMPEL DISCOVERY On May 17, 1990, the Montana Department of Fish, Wildlife and Parks ("DFWP") served interrogatories on the claimants, Laura and William Forbes (see Exhibit A attached to this Motion and Brief). Mr. Forbes appeared at the March 2, 1992 status conference and advised that the claimants would be represented by Mr. R.T. Garrison in this case. On March 3, 1992, counsel for DFWP wrote Mr. Garrison requesting that the claimants answer DFWP's interrogatories (see Exhibit B attached to this Motion and Brief). Mr. Garrison filed a Notice of Appearance on Behalf of Claimants on March 27, 1992. By letter dated May 20, 1992, Mr. Garrison advised counsel for DFWP that the water right claims in question are valid but declined to describe how the mining water right claims have been used for mining purposes (see Exhibit C attached to this Motion and Brief). Counsel for DFWP advised Mr. Garrison that his 1 May 20, 1992 letter did not provide adequate information concerning the historic use of the water right claims for mining purposes (see Exhibit D attached to this Motion and Brief). On September 25, 1992, counsel for DFWP advised Mr. Garrison that information concerning the historic use of the water right claims would be necessary in order to resolve DFWP's objections (see Exhibit E attached to this Motion and Brief). As of this date, Mr. Garrison has not submitted any information concerning the historic use of the above-referenced water right claims for mining purposes. DFWP hereby moves the Court for entry of an order: 1. Requiring the claimants to file answers to interrogatories. 2. Awarding DFWP reasonable costs and attorney fees as authorized by Rule 37 of the M.R.Civ.P. 3. Awarding DFWP such other relief as the Court deems necessary. II. BRIEF IN SUPPORT OF MOTION TO COMPEL DISCOVERY Rule 33(a), M.R.Civ.P., requires that each interrogatory "shall be answered separately and fully in writing under oath unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer." The claimants have refused to answer DFWP's interrogatories. The claimants have even refused to provide a letter describing how the water right claims in 2 question have been historically used for mining purposes. DFWP's interrogatories are designed to elicit specific information concerning the historic use of water right claims 41GW-042432, 042433 and 042434 for mining purposes. DFWP cannot trespass to acquire this information. Discovery is the vehicle by which DFWP can acquire the material information necessary to adequately participate in the adjudication process and determine how to proceed in this case. DFWP's interrogatories will lead to the discovery of material facts. DFWP cannot proceed to a hearing in this case until its interrogatories are fully and completely answered by the claimants. Based on the preceding, DFWP requests entry of an order requiring the claimants to: 1. File answers to DFWP's interrogatories. 2. Pay DFWP's reasonable costs and attorney fees as authorized by Rule 37 of the M.R.Civ.P. 3. Comply with such other orders as the Court deems necessary. Respectfully submitted this erkhf day of October, 1992. 6 G. Steven Brown 1313 Eleventh Avenue Helena, MT 59601 Attorney for Department of Fish, Wildlife and Parks 3 CERTIFICATE OF SERVICE I, G. Steven Brown, attorney for the Department of Fish, Wildlife and Parks, certify that I did, on the 444, day of October, 1992, serve a copy of the foregoing and attached Motion to Compel Answers to Interrogatories and Supporting Brief upon opposing counsel as follows: R. Thomas Garrison Attorney at Law 120 Wallace Street Virginia City, MT 59755 Eric S. Gould, Attorney U.S. Dept. of Justice Environment & Natural Resources Division P.O. Box 663 Washington, D.C. 20044 Matt Williams, Attorney 506 E. Babcock Bozeman, MT 59715 C. AlEAJEtJ ge41MJ G. Steven Brown 4 1 2 3 4 5 7 a 9 10 11 12 13 IN THE WATER COURTS OF THE STATE OF MONTANA UPPER MISSOURI DIVISION JEFFERSON RIVER BASIN (41G) * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF ) THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND, ) WITHIN THE JEFFERSON RIVER DRAINAGE ) AREA, INCLUDING ALL TRIBUTARIES OF THE ) JEFFERSON RIVER IN BROADWATER, GALLATIN, ) MADISON, JEFFERSON AND SILVER BOW COUNTIES, MONTANA. ) ) FIRST INTERROGATORIES FROM DEPARTMENT OF FISH, WILDLIFE AND PARKS COMES NOW the Department of Fish, Wildlife and Parks, by and through its attorneys, G. Steven Brown and Robert Lane, and submits the following First Interrogatories to: 14 15 18 17 18 19 20 4.% 21 22 23 Laura and Williams Forbes Box 656 Pony, MT 59747 These Interrogatories are submitted under Rule 33 of the Montana Rules of Civil Procedure. INSTRUCTIONS 1. Each interrogatory must be answered separately and fully in writing under oath within thirty (30) days after receipt of these Interrogatories unless a longer period for filing your answers is granted by the Water Court. The answers to these Interrogatories must be signed by the person making You may submit answers to these Interrogatories the answers. If more space lu needed, you must set in the spaces provided. forth a verbatim recopy of the Interrogatories, followed by 24 25 fe4. 1 2 3 4 6 0 9 10 11 12 13 14 15 10 17 18 19 20 21 22 23 24 .25 your answer. A copy of your answers must be filed with the Water court and the attorneys for the Department of Fish, Wildlife and Parks. 2. These Interrogatories sha]] be deemed continuing in nature pursuant to Rule 26(e) of the Montana Rules of Civil Procedure. You are required to serve supplemental answers upon the attorneys of record for the DeparLmenL of Fish, Wildlife and Parks if you later obtain information upon the basis of which (A) you know that an answer was incorrect when made; or (B) you know that an answer, though correct when made, is no longer true, and the circumstances are such that a failure to amend your answer is in substance a knowing concealment. 3. When you believe that a complete answer to a particular Interrogatory or part thereof is not possible, then answer such Interrogatory to the extent possible and furnish a statement explaining the reason for your inability to answer further. When an Interrogatory calls for the "reasons" or or nbasis" of any action or belief, or when your answer to any Interrogatory gives a reason or ground or states an opinion, identify completely all sources of the same, including the identity of the person or persons responsible for the reason, ground, or opinion or any document or other source of information contributing thereto. 4, 'grounds" 5. To the extent any information called for by these Interrogatories is unknown to you, so state, and set forth such remaining information as is known. If any estimate can reasonably be made in place of unknown information, also set forth your best estimate, clearly designated as such, in place of unknown information, and describe the basis upon which the estimate is made. If, pursuant to Rule 33(c) of the Montana Rules of 6. Civil Procedure, you opt to produce business records in lieu of formulating answers to any of these Interrogatories, specify those business records in sufficient detail to permit the Department of Fish, Wildlife and Parks to locate and to identify, as readily as you can, the records from which the answers may be ascertained. -2- INTERROGATORY NO. 1: For each mining water right claim 1 2 3 4 5 you have filed in the Jefferson River Basin (Basin 41G), please describe in detail each mining operation in which each water right claim is or has been used. Please be speCific as to the 1 following: (A) The name of each mining operation in which any or all 8 of your Jefferson River Basin mining water right claims is or 8 has been used. 9 10 (B) The location of each separate mining operation listed 11 12 13 14 in your answer to Interrogatory 1(A) by reference to the approximate distance and direction from the nearest city or town. 15 16 17 18 19 20 21 22 23 24 (C) For each mining operation listed in your answer to Interrogatory 1(A), please list which Jefferson River Basin mining water right is or has been used at each mining operation for each calendar year you have owned or operated the mining operation. In listing the water rights used at each mining operation, please use the Water Court adjudication number assigned to your water right claim for the Jefferson River Basin. .25 -3- I 2 3 (D) For each mining operation listed in your answer to Interrogatory 1(A), please provide the following information: (1) The calendar years in which ore, minerals or material 4 was mined, processed, produced, sold, extracted, removed or 5 milled. 6 7 8 9 10 (2) The mineral, ore or material being mined, processed, 11 produced, explored, sold, extracted, removed or milled each 12 calendar year. 13 14 15 16 17 (3) The amount or volume of ore, minerals or material 18 mined, processed, produced, sold, extracted, removed or milled 19 each calendar year. 20 21 22 23 24 26 -4 1 (4) The name, address and telephone number of the person, 2 corporation or entity to whom you sold the minerals, ore or 3 material mined, processed, produced, extracted, removed or 4 milled each calendar year. 5 6 (5) How each Jefferson River Basin mining water right is 8 9 10 11 or was used to mine, process, explore for, produce, sell, extract, remove or mill ore, minerals or material each calendar year. 12 13 14 15 18 17 18 19 20 (6) The number of employees, if any, who were hired to assist in the mining, processing, production, exploration for, sale, extraction, removal or mining of ore, minerals or material each calendar year. 21 22 23 24 26 -5- 1 (7) If you will do so without a motion to produce, please 2 attach copies of any written records, including mill receipts 3 or other written documents, concerning the amount or volume of 4 ore, minerals or material mined, processed, produced, sold, 5 extracted, removed or milled each calendar year. 7 8 10 11 12 INTERROGATORY NO. 2: For the years prior to your 13 ownership or operation of the mining operations listed in your 14 answer to Interrogatory 1(A), please describe in detail the 15 operating history of each mining operation. 16 17 18 19 20 21 22 23 24 26 -6- INTERROGATORY NO. 3: Please list the name, address and the approximate dates of ownership of each person, firm, corporation or other entity who previously owned or operated each mining operation listed in your answer to Interrogatory 1(A). INTERROGATORY NO. 4: For each mining operation listed In your answer to Interrogatory 1(A), please indicate whether the mining operation was licensed, permitted or approved by the: Yes No. Yes No. Yes No. (A) Montana Department of State Lands (B) The U.S. Forest Service (C) The U.S. Bureau of Land Management (D) If your answer is "yes" to any portion of this Interrogatory, please provide the following information: (1) The years each mining permitted or approved by each agency. -7.- operation was licensed, (2) If available, 2 reclamation 3 the license number, permit number, assigned by each agency. contract number or othor identifying number 4 5 7 10 11 12 (3) If any mining operation was conducted under a small 13 miner's exclusion from the Department of State Lands, please 14 indicate the years such an exclusion was received. 15 18 17 18 19 20 21 22 INTERROGATORY NO. 5: Do any other persons, 23 corporations, firms or entities have an ownership, leasehold or 24 -8- 25 1 royalty interest in any of the mining operations listed in your 2 answer to Interrogatory 1(A)? 3 If your answer is "yes", please list the name, address and 4 telephone number of each person, corporation, firm or entity 5 who has an ownership, leasehold or royalty interest in each 6 mining operation. .1 Yes No. 7 8 9 10 11 12 13 14 INTERROGATORY NO. 6: What buildings, vehicles, 15 equipment or machinery needed to mine, process, explore for, 16 produce, sell, extract, remove or mill minerals, ore or 17 material is presently located on site at each of the mining 16 operations listed in your answer to Interrogatory 1(A)7 Please 19 provide a specific description of each Rem ot building, 20 vehicle, eqUipment or machinery prouonLly locaLed at each 21 mining operation. 22 23 24 25 INTERROGATORY NO. 7: For each month of the calendar -9- year in which you claim to use each water right in question for mining purposes, please specify how each water right is actually used to mine, process, explore for, produce, extract, remove or mill minerals, ore or material from each mining operation listed in your answer to Interrogatory No. 1(A). DATED this day of G. Steven Brown 1313 Eleventh Avenue Helena, MT 59601 Attorney for DeparLmunL of Fish, Wildlife and Parka CERTIFICATE OP SERVICE for the the attorneys Steven Brown, I, G. one of Department of Fish, Wildlife and Parks in the above-entitled day the .114i6 on certify did, that action,. hereby of , 1990, serve a copy by mail of the foregoing Nyk and attac d First Interrogatories from Department of Fish, fd Parks upon the claimant or claimants listed on Wildlife page 1. E424v4hk) . G. Steven Brown DATED this , 1990. day of Person Answering Interrogatories Subscribed of and sworn , 1990. to before me this day NOTARY PUBLIC for the State of Remiding at my commission expires ma.. ¢n ¢n ¢ ¢n ¢ ¢n ¢n. ¢n.11, (NOTARIAL SEAL) -10- (3. STEVEN BROWN ATTORNEY AT LAW 1313 ELEVEN 114 AVENUE HELENA. MONTANA 5960) 1406) 442-8711 March 3, 1992 Mr. R.T. Garrison Attorney at Law 120 Wallace Street Virginia City, MT 59755 Re: 41G-47 Montana Water Court Dear Mr. Garrison: Mr. William Forbes of Pony, Montana has advised that you will be representing him in the above-entitled matter. I represent the Department of Fish, Wildlife and Parks ("DFWP"). DFWP has filed an objection to Mr. Forbes' three mining water right claims. Two other objectors have also filed objections to Mr. Forbes' claims. Attached are interrogatories submitted to Mr. Forbes in May of 1990. As of this date, Mr. Forbes has not responded to the interrogatories. The Water Court has given the parties sixty days to attempt to resolve the objections to Mr. Forbes' mining water right claims. DFWP will need answers to the attached interrogatories in order to determine whether it is possible to undertake settlement discussions. Thank you for your cooperation. If you have any questions, please contact me. G. Steven Brown GSB rs attach cc: William Forbes b7<hotsir 91ttio, Wevewato/i ca Oaomey May 20, 1992 Ore erezz& Rged g We* (lit Y eirogkdiep ,totte , 06 e5; 7e5;5- ¢ ceizi Re: Water Rights Objections Jefferson River Drainage 41-G-47 41G-W-042432, 41G-W-042433, 41G-W-042434 G. Steven Brown Attorney for DEW 1313 Eleventh Ave. Helena, Montana 59601 Dear Mr. Brown: It is my understanding that time has been extended until June for a settlement of the issues involved in the foregoing objections. The water rights held by lit. and Mrs. Forbes were for the beneficial historical use for mining activity. The numerous mining claims have been kept in good standing by William G. Forbes, even and although they have not been in commercial production for many years. So long as the claims are maintained pursuant to the requirement of federal and state law, there can be no abandonment. The water to such appropriations may still always be used for mining purposes, which might be developed at some future date. The Forbes have no objection that a stipulation might be entered by all objectors to allow multiple use of their water appropriations by BLM, FWLP and Potosi Generating, reserving however expressly, use unto themselves if ever is need for contingent commercial mining operations. Respeçbilly ours, R. THOMAS G f ISON Attorney for Forbes RTG:jg cc: W. Forbes REcEvvEID MAY 2 1 1992 " 41 G. STEVEN BROWN ATTORNEY AT LAW 1313 ELEVENTH AVENUE 'HELENA. MONTANA 59601 4 06) 442-6711 May 22, 1992 R. Thomas Garrison Attorney at Law 120 W. Wallace Virginia City, MT 59755 Re: 41G-47 Dear Mr. Garrison: Thank you for your letter of May 20, 1992. I have been notified that the settlement deadline in this case has been extended until June 2, 1992. Your letter does not provide sufficient information regarding the historic use of the three water right claims in question. The issue in these adjudication proceedings is not the validity of Mr. Forbes' mining claims. The assessment work that must be done to maintain the validity of those claims may or may not involve the use of water. I will need a specific description of the historic use of the water rights in question for mining purposes. Such information as the last year in which commercial production occurred and how the water rights have been used since the cessation of commercial mining activity is important to our evaluation of the issues in this case. Please provide answers to DFWP's interrogatories so that I can determine whether settlement discussions will be possible. If you have any questions, please contact me. Sincerely, G. Steven Brown GSB rs zy l G. STEVEN BROWN ATTORNEY AT LAW 1313 ELEVENTH AVENUE HELENA, MONTANA 59601 1 4 061 442 8711 September 25, 1992 R. Thomas Garrison Attorney at Law 120 West Wallace Virginia City, MT 59755 Re: 41G-47 Dear Mr. Garrison: As I indicated during the status conference on August 6, 1992, I prefer to resolve the objections of the Department of Fish, Wildlife and Parks ("DFWP") on an informal basis. However, you have still not provided sufficient information regarding the historic use of these water right claims for mining purposes. Specifically, I need a letter from you or Mr. Forbes describing how the water rights have been historically used for production of minerals, including a detailed description of the mining operation (e.g., dimensions of the sluice box). I also need to know the last year in which commercial production of minerals occurred. Please provide copies of any documents or publications confirming the commercial production. Please advise whether I can expect a letter providing this information. If I do not hear from you on or before October 5, 1992, I will file a Motion to Compel Discovery. If you have any questions, please contact me. Sincerely, 41401K) G. Steven Brown GSB rs cc: Matt Williams Eric Gould E i( Idf 467:
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