Dorothy F. Maher; Harold G. Maher

Annotate this Case

Download PDF

FILED 01/05/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41H-6005-A-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Brown, Stephen R 2.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION GALLATIN RIVER BASIN (41H) PRELIMINARY DECREE ******************* CLAIMANTS: Dorothy F. Maher; Harold G. Maher CASE 41H-6005-A-2023 41H 35236-00 41H 36777-00 ORDER DENYING MOTION TO AMEND This case comes before the Water Court on a Verified Motion to Amend Water Right Claim, filed by Harold Gene Maher (“Maher”) on June 21, 2023. Maher requests “the reinstatement of 5 of my springs.” The motion references three water right claims that Maher owns: claims 41H 35236-00, 41H 36777-00, and 41H 68209-00. BACKGROUND Maher and his late wife Dorothy Faye Maher 1 are the record owners of the claims. Maher filed the Statements of Claim for claim 41H 35236-00, a domestic water right from a spring, and claim 41H 36777-00, a stock water claim, from Marble Creek, on September 17, 1981. He filed a Notice of Completion of Groundwater Development form for claim 41H 68209-00 on April 25, 1988. Because claim 41H 68209-00 is a post-1973 groundwater right, it is not within this Court’s jurisdiction and is not addressed in this Order. Attached to the motion is a death certificate confirming Dorothy Maher’s passing in 2013. If Mr. Maher wishes to remove Dorothy’s name from the claim, he should submit this document to the Bozeman Regional Office of the DNRC. 1 1 Claim 41H 35236-00 is a claim to use water from a spring that is an unnamed tributary of Marble Creek located in the NWSWNE of Section 2, T2S, R7E, Gallatin County. Maher attached a Notice of Completion of Groundwater Appropriation Without Well form (“Notice of Completion form”) to the Statement of Claim. The Notice of Completion form lists seven different springs, each labeled numerically. Claim 41H 35236-00 appears to represent the fifth spring; the Statement of Claim has “#5” written next to the source type and the Notice of Completion form states that the fifth spring yields “35-40 inches” to service the house. The Water Court included claims 41H 35236-00 and 41H 36777-00 in the Gallatin River Basin (Basin 41H) Preliminary Decree issued on October 11, 2018. The claims did not receive any Department of Natural Resources and Conservation (“DNRC”) issue remarks. Neither Maher nor anyone else objected or counterobjected to the claims so they were not part of a post-Preliminary Decree proceeding. The Court consolidated the claims into this case to address the motion. ISSUE Should the Court grant the Verified Motion to Amend Water Right Claim filed by Maher? DISCUSSION Maher seeks to “reinstate” water rights for the remaining springs identified on the Notice of Completion form. Reinstatement is a term used when the Court is asked to return claims to their pre-dismissal status. See In re Horvath, Case No. 76G-548, 2006 Mont. Water LEXIS 4, *7 (May 22, 2006). Here, the State’s centralized water rights system indicates that Maher only filed two claims for existing water rights: claims 41H 35236-00 and 41H 36777-00. To file a claim for a water right, the Water Use Act required an appropriator to file a statement of claim no later than June 30, 1983 (the deadline was later extended to 1996). Section 85-2-224(1), MCA; In re Yellowstone River, 253 Mont. 167, 832 P.2d 1210 (1992). There is no record that a statement of claim was filed for each remaining spring. Thus, the Water Court did not “dismiss” claims for the additional springs because the claims were never filed. Even if they were dismissed, 2 the State’s centralized system would nevertheless have a record for each spring. It appears that Maher did not file a statement of claim for the remaining springs on his property. Unfortunately, because Maher did not file statements of claim for the remaining springs, there is nothing that the Court can reinstate. The Court may only reinstate claims to their pre-dismissal status. The Court is not authorized to use the motion to amend process to reinstate a claim that never existed. See generally, In re Hurd, 2022 MT 120, 409 Mont. 79, 512 P.3d 256. Likewise, the Court cannot now generate new claims for each spring just because they are referenced on the Notice of Completion form attached to the Statement of Claim for claim 41H 35236-00. The Notice of Completion form is not the correct instrument to secure an interest in an existing water right. Section 85-2-221, MCA, requires a person claiming an existing water right to file a statement of claim. Failure to file a statement of claim results in presumptive abandonment of the water right. In re Yellowstone River, 253 Mont. 167, 832 P.2d 1210 (1992). Section 85-2-224(1), MCA, describes the requirements for a statement of claim, including that it list a priority date, point of diversion, flow rate, and place of use. Further, Section 85-2-224(2), MCA, provides that “[a] claimant filing a statement of claim under subsection (1) shall submit maps, plats, aerial photographs, decrees, pertinent portions of those documents, or other evidence in support of the claim.” Here, the Notice of Completion form is not a statement of claim and fails to contain the necessary elements for a valid statement of claim. It only can be used by the Court as evidence to support the elements claimed in the Statement of Claim for claim 41H 35236-00, not to reinstate claims that never were filed. Finally, if Maher seeks to amend claim 41H 35236-00 to add the remaining springs to the claim, the evidence does not suggest that the seven springs are a singular water right. Again, Section 85-2-224(1), MCA, sets out the requirements for a statement of claim and provides that all attachments to the statement of claim are to be used in support of the claim. Only a statement of claim for an existing water right constitutes prima facie proof of its content. Section 85-2-227(1), MCA. Here, Maher claimed only 3 the elements of the fifth spring on the Statement of Claim form for claim 41H 35236-00. Prima facie proof may be contradicted and overcome by other evidence that proves, by a preponderance of the evidence, that the elements of the claim do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973. Rule 19, W.R.Adj.R. The motion does not provide evidence that the springs collectively constitute a singular water right. Rather, the Notice of Completion form suggests that each spring is a separate water right appropriation, with different flow rates, purposes, and priority dates. There is no other evidence in the record to show that seven springs more accurately reflect the elements of claim 41H 35236-00 and Maher has failed to meet his burden. ORDER Therefore, it is ORDERED that Maher’s Verified Motion to Amend Water Right Claims is DENIED. The claims consolidated in this case will remain as they appeared in the Basin 41H Preliminary Decree. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Dorothy F. Maher Harold G. Maher 2368 Jackson Creek Rd Bozeman, MT 59715 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41H PD\41H Cases\41H-6005-A-2023\41H-6005 Ord Denying MTA 1-3-24 ld.docx 4 Electronically Signed By: Hon. Judge Stephen R Brown Fri, Jan 05 2024 02:01:20 PM

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.