Injunctions and other Remedies in Water Right Proceedings

1. Injunctions and other Remedies in Water Right Proceedings Professor Cynthia Ford The University of Montana School of Law October 02, 2009

2. Jurisdiction Over Water Rights in Montana • The Montana Water Court has exclusive jurisdiction over the final determination of "existing water rights" (i.e. water right claims with Pre-July 1, 1973, priority dates). See § 85- 2-215, MCA. • The District Courts have jurisdiction over water distribution controversies and "may grant injunctive or other relief necessary and appropriate to preserve property rights or the status quo pending issuance of the final decree." The District Court also has jurisdiction over ditch easement conflicts. See § 70-17-112, MCA.

3. Deadman’s Basin (2002) • “The jurisdiction to interpret and determine existing water rights rests exclusively with the water courts…District courts are granted the authority to supervise the distribution of water that has already been adjudicated and to enforce such water decrees.”

4. MT Water Rights Enforcement Statutes MCA § 85-2-114. Judicial enforcement. MCA § 85-2-309. Hearings on objections -- jurisdiction.

5. Procedure for Enforcement under 85-2-114 • Department may petition for court order to cease-and-desist or for TRO, or preliminary or permanent injunction • TRO requirements substantially relaxed • County Attorney, AG also authorized to seek relief even without request by department

6. MCA § 85-2-114. Judicial enforcement (1) If the department ascertains, by a means reasonably considered sufficient by it, that a person is wasting water, using water unlawfully, preventing water from moving to another person having a prior right to use the water, or violating a provision of this chapter, it may petition the district court supervising the distribution of water among appropriators from the source to: (c) issue a temporary, preliminary, or permanent injunction to prevent a violation of this chapter. Notwithstanding the provisions of Title 27, chapter 19, part 3, a temporary restraining order must be granted if it clearly appears from the specific facts shown by affidavit or by the verified complaint that a provision of this chapter is being violated.

7. No Private right for Penalties, Fees Under 85-2-114 • Faust v. Utility Solutions, 2007 • No private right of action for civil penalties under Water Use Act • No private right for attorneys’ fees • Undecided if private right to injunctive relief under Water Use Act

8. Injunctions v. Declaratory Judgments • Injunctions • Direct Order of Court • Disobedience is contempt: jail, fine, both • Irreparable Injury Rule • Declaratory Judgment • Declares respective rights • No contempt • Convert to Injunction

9. Irreparable Injury Rule • Applies to equitable remedies, injunctions • No equitable relief where adequate remedy exists at law • Same as: irreparable injury necessary • Water loss is irreparable injury • Hence, relaxation of rule in this context

10. Injunctions • MCA § 27-19-101. Definition of injunction -- by whom granted. An injunction is an order requiring a person to refrain from a particular act. The order may be granted by the court in which the action is brought or by a judge thereof and, when made by a judge, be enforced as the order of the court.

11. Injunctions in General Injunctions may be affirmative: “Defendant must …” Injunctions may be negative: “Defendant must not…” Equitable, so no right to jury trial Court should issue Findings of Fact Conclusions of Law Order/Judgment

12. Types of Injunctions:TROs • MCA § 27-19-314. Temporary restraining order. Where an application for an injunction is made upon notice or an order to show cause, either before or after answer, the court or judge may enjoin the adverse party, until the hearing and decision of the application, by an order which is called a temporary restraining order.

13. Types of Injunctions:TROs • Temporary Restraining Order (TRO) • Emergency • Limited temporally • Usually very hard to get, lack of information • BUT SEE MCA 85-2-114: “Notwithstanding the provisions of Title 27, chapter 19, part 3, a temporary restraining order must be granted if it clearly appears from the specific facts shown by affidavit or by the verified complaint that a provision of this chapter is being violated.”

14. Eliason v. Evans (1978) It is well settled that a temporary restraining order is an interlocutory order issued often on an ex parte basis. The restraining order is intended to preserve the status quo until a show cause hearing can be held. A temporary restraining order is effective only for the reasonable time necessary to give notice and schedule a hearing to determine the appropriateness of an injunction pendente lite.

15. It is well established that substantive property rights cannot be adjudicated in a summary way. …In the same vein, water rights should not be resolved in a preliminary proceeding for injunctive relief.The problems inherent in trying the merits of a case at an injunctive hearing are obvious. Typically, an injunction, or a motion for an injunction is filed very early in the proceedings, usually before discovery has been completed and often before the pleadings of the parties are complete. At such juncture, the District Courts normally do not have sufficient evidence to conclusively resolve the merits of the case.

16. TRO without notice • 27-19-316. Contents and filing of restraining order granted without notice. • Each temporary restraining order granted without notice must: • be endorsed with the date and hour of its issuance • be filed immediately in the clerk's office and entered in the record; • define the injury and state why the injury is irreparable and why the order was granted without notice; and • … expire by its terms within the time after entry, not to exceed 10 days, as the court or judge fixes.

17. Preliminary Injunctions • Also before trial • Longer than TRO • Bridge gap between TRO and trial • More information to court via hearing, evidence from both sides • Evidence from TRO and preliminary injunction hearings need not be repeated at trial

18. MCA 27-19-201 When preliminary injunction… An injunction order may be granted in the following cases: (1) when it appears that the applicant is entitled to the relief demanded and the relief or any part of the relief consists in restraining the commission or continuance of the act complained of;

19. (2) when it appears that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant; (3) when it appears during the litigation that the adverse party is doing or threatens or is about to do or is procuring or suffering to be done some act in violation of the applicant's rights, respecting the subject of the action, and tending to render the judgment ineffectual;

20. (4) when it appears that the adverse party, during the pendency of the action, threatens or is about to remove or to dispose of the adverse party's property with intent to defraud the applicant, an injunction order may be granted to restrain the removal or disposition;

21. Preliminary Injunction/TRO Procedure • Open case with complaint • Motion for TRO or Preliminary Injunction • Affidavit(s) in Support of Motion (Facts) • Brief in Support of Motion (Law) • Notice of Hearing • Proposed Findings, Conclusion, Order • Bond

22. Permanent Injunctions • Issued after trial • May be limited or infinite in time • “Permanent” means the court has issued its final ruling • Easier to get than TRO or preliminary injunction • “Irreparable Injury” rule Satisfied by statute, water irreplaceable

23. Confederated Salish and Kootenai Tribes v. Clinch, 297 Mont. 448 (12/30/99) Espy v. Quinlan, 2000 MT 193 (07/18/00) Ryan v. Harrison & Harrison Farms L.L.L.P., 2001 MT 128N (07/24/01) In re Deadman's Basin Water Users Ass'n, 2002 MT 15 (01/29/02) Williams v. Schwager, 2002 MT 107 (05/23/02 In re Adjudication of the Existing Rights to the Use of All the Water, 2002 MT 216 (09/24/02) Confederated Salish and Kootenai Tribes v. Stults, 2002 MT 280 (12/06/02) Sitz Angus v. Dallaserra, 2002 MT 295N (12/12/02) Graveley Simmental Ranch Co. v. Quigley, 2003 MT 34 (02/26/03) Shammel v. Canyon Resources Corp., 2003 MT 372 (12/24/03) Hidden Hollow Ranch v. Fields, 2004 MT 153 (06/15/04) Mountain Water Company v. MT Dept. of Public Service Regulation, 2005 MT 84 (04/05/05) Montana Trout Unlimited v. Montana Dept. of Natural Resources and Conservation, 2006 MT 72 (04/11/06) Mustang Holdings, LLC v. Zaveta, 2006 MT 234 (09/19/06) Confederated Salish and Kootenai Tribes v. Clinch, 2007 MT 63 (03/12/2007) Wills Cattle Co. v. Shaw, 2007 MT 191 (08/07/07) Faust v. Utility Solutions, LLC, 2007 MT 326 (12/11/07) Eastgate Village Water and Sewer Ass'n v. Davis, 2008 MT 141 (04/22/08) Bostwick Properties, Inc. v. Montana Dept. of Natural Resources and Conservation, 2009 MT 181 (05/21/09) MT Water Rights Cases Decided by the Montana Supreme Court (1999-2009)

24. Montana Water Rights Cases: Temporary Restraining Orders • TRO sought: 3 • Espy v. Quinlan, 2000 MT 193 • In re Deadman's Basin Water Users Ass'n, 2002 MT 15 • Confederated Salish and Kootenai Tribes v. Clinch, 2007 MT 63 • TRO granted by District Court: 2/3 • Espy • Clinch • TRO denied by District Court: 1/3 • Deadman's

25. Montana Water Rights Cases: Temporary Restraining Orders • TRO decision affirmed by MTSC: 1/3 • Espy • TRO decision reversed by MTSC: 2/3 • Deadman’s • Clinch • TRO granted when lower court denied: 1/3 • Deadman’s • TRO denied when lower court granted: 1/3 • Clinch

26. Temporary Restraining Orders - Conclusions District Court is likely to grant temporary restraining orders: • when a pooling agreement for construction of the irrigation system created an easement for repair and maintenance and the cost-sharing agreement did not limit the duration of the easement. (Espy) • when the DNRC can not determine whether the applicants' proposed change would adversely affect the use of the Tribes' rights in the absence of a quantification of the Tribes' reserved rights. (Clinch-2007)

27. Temporary Restraining Orders - Conclusions SUPREME COURT is likely to affirm: when a pooling agreement for construction of the irrigation system created an easement for repair and maintenance and the cost-sharing agreement did not limit the duration of the easement. (Espy) MTSC is unlikely to affirm: when the District Court exceeds its authority and “fills in” a water decree with further delineation and a water purchase contract precluded district court from requiring irrigator to forfeit the remainder of his entitlement during water shortfall. (Deadman’s) because State appropriative water rights are based on actual use and are governed by state law; Indian reserved water rights are established by reference to the purposes of the reservation, rather than to actual, present use of the water, and the basis for an Indian reserved water right is the treaty, federal statute, or executive order setting aside the reservation. (Clinch-2007)

28. Montana Water Rights Cases: Preliminary Injunctions • Preliminary injunction sought: 5 • Espy v. Quinlan, 2000 MT 193 • In re Deadman's Basin Water Users Ass'n, 2002 MT 15 • Graveley Simmental Ranch Co. v. Quigley, 2003 MT 34 • Mustang Holdings, LLC v. Zaveta, 2006 MT 234 • Confederated Salish and Kootenai Tribes v. Clinch, 2007 MT 63 • Preliminary injunction granted by District Court: 4/5 • Espy • Graveley • Mustang • Clinch (2007) • Preliminary injunction denied by District Court: 1/5 • Deadman’s

29. Montana Water Rights Cases: Preliminary Injunctions • Preliminary injunction decision affirmed by MTSC: 2/5 • Espy • Graveley • Preliminary injunction decision reversed by MTSC: 3/5 • Deadman’s • Mustang • Clinch (2007) • Preliminary injunction granted when lower court denied: 1/5 • Deadman’s • Preliminary injunction denied when lower court granted: 2/5 • Mustang • Clinch (2007)

30. Preliminary Injunctions - Conclusions District Court is likely to grant preliminary injunctions: • when a pooling agreement for construction of the irrigation system created an easement for repair and maintenance and the cost-sharing agreement did not limit the duration of the easement. (Espy) • when a party destroys a ditch at issue without leave of the court in violation of MCA § 70-17-112. (Mustang) • when the DNRC can not determine whether the applicants' proposed change would adversely affect the use of the Tribes' rights in the absence of a quantification of the Tribes' reserved rights. (Clinch-2007)

31. Preliminary Injunctions - Conclusions MTSC is likely to affirm: when a pooling agreement for construction of the irrigation system created an easement for repair and maintenance and the cost-sharing agreement did not limit the duration of the easement. (Espy) MTSC is unlikely to affirm: there is no reasonable probability that past acts complained of will recur; where the entire injury is in the past, an injunction cannot issue. Injunction power is not used as punishment for past acts and is ordered against them only if there is evidence they will probably recur. (Mustang) because State appropriative water rights are based on actual use and are governed by state law; Indian reserved water rights are established by reference to the purposes of the reservation, rather than to actual, present use of the water, and the basis for an Indian reserved water right is the treaty, federal statute, or executive order setting aside the reservation. (Clinch-2007)

32. Preliminary Injunctions - Conclusions District Court is unlikely to grant preliminary injunctions: when it exceeds its authority and makes a priority determination regarding domestic and irrigation water consumption based on its own inclinations. (Deadman’s) MTSC is unlikely to affirm: when the District Court exceeds its authority and “fills in” a water decree with further delineation and a water purchase contract precluded district court from requiring irrigator to forfeit the remainder of his entitlement during water shortfall. (Deadman’s)

33. Montana Water Rights Cases: Permanent Injunctions • Permanent injunction sought: 6 • Williams v. Schwager, 2002 MT 107 • Sitz Angus v. Dallaserra, 2002 MT 295N • Confederated Salish and Kootenai Tribes v. Clinch, 2007 MT 63 • Wills Cattle Co. v. Shaw, 2007 MT 191 • Faust v. Utility Solutions, LLC, 2007 MT 326 • Eastgate Village Water and Sewer Ass'n v. Davis, 2008 MT 141 • Permanent injunction granted by District Court: 5/6 • Williams • Sitz • Clinch • Wills • Eastgate • Permanent injunction denied by District Court: 1/6 • Faust

34. Montana Water Rights Cases: Permanent Injunctions • Permanent injunction decision affirmed by MTSC: 5/6 • Williams • Sitz • Wills • Faust • Eastgate • Permanent injunction decision reversed by MTSC: 1/6 • Clinch • Permanent injunction granted when lower court denied: 0/6 • Permanent injunction denied when lower court granted: 1/6 • Clinch

35. Permanent Injunctions - Conclusions District Court is likely to grant permanent injunctions when: • a water system constituted neither a private nor public nuisance and that the agreement was valid and enforceable. (Williams) • when the ownership of storage water and access to it for the purpose of adjusting the amount of water released is in dispute by parties and one party blocks the other party’s access to the water flow control, but the parties present no question of fact regarding ownership of such water rights based upon previous use and conveyances. (Sitz) • when the DNRC can not determine whether the applicants' proposed change would adversely affect the use of the Tribes' rights in the absence of a quantification of the Tribes' reserved rights. (Clinch-2007) • if deeds are ambiguous and do not contain maps or any other specific identification of the number or location of the ditches used with the water rights conveyed by the deeds, the best interpretation of the deed language is that the parties to the deeds only intended to convey an interest in those ditches that actually historically conveyed water to the respective ranches. (Wills) • a water and sewer association has the power to forbid privately operated irrigation wells located within Eastgate that are not connected to the Association's water system, and that the Board's rule prohibiting such wells was reasonable in light of the Association's duty to promote the health, safety, and welfare of Eastgate residents by preserving Eastgate's water supply. (Eastgate)

36. Permanent Injunctions - Conclusions MTSC is likely to affirm: because a shared water well agreement is not illegal per se, as according to the FCHD, when the parties may still obtain approval for the use of such a well even where the Subdivision Certificate calls for individual wells and a party could not repudiate agreement to share water well, where neighbors accepted the benefit of the agreement in the form of water fees, and initiated an action in county justice court to increase the water fee under the agreement. (Williams) with a finding that defendant's control of distribution system of reservoir had deprived and was depriving plaintiff the full use of its one-third interest in water from a spring. (Sitz) deeds conveying water rights and ditches were ambiguous, and evidence was sufficient to support finding that grant of water rights and appurtenant ditches did not include the destroyed ditches.(Wills) the board of directors for private nonprofit water and sewer association for residential subdivision had authority, under association's bylaws and articles of incorporation, to forbid privately-operated irrigation wells in subdivision, even if those wells were not connected to public water system operated by association, and rule adopted by association's board, forbidding privately-operated irrigation wells, was reasonable. (Eastgate)

37. Permanent Injunctions - Conclusions MTSC is unlikely to affirm: because State appropriative water rights are based on actual use and are governed by state law; Indian reserved water rights are established by reference to the purposes of the reservation, rather than to actual, present use of the water, and the basis for an Indian reserved water right is the treaty, federal statute, or executive order setting aside the reservation. (Clinch-2007)

38. Permanent Injunctions - Conclusions District Court is unlikely to grant permanent injunctions: Private plaintiffs lack standing to enforce the Montana Water Use Act via civil penalties and fees (failed to decide whether there is a private action for injunction under the Act). (Faust) MTSC is likely to affirm: The claim for injunction is moot because the DNRC issued final permits which ended the defendant’s violation of the Act which was the cause of the desire for an injunction. (Faust)

39. Attorneys’ Fees in Water Litigation MCA § 85-2-125. Recovery of costs and attorney fees by prevailing party • (1) If a final decision of the department on an application for a permit is appealed to district court, the district court shall award the prevailing party reasonable costs and attorney fees. • (2) The party obtaining injunctive relief in an action to enforce a water right must be awarded reasonable costs and attorney fees. For the purposes of this section, "enforce a water right" means an action by a party with a water right to enjoin the use of water by a person that does not have a water right.

40. Attorneys’ Fees Available Under 70-17-112. • (1) A person with a canal or ditch easement has a secondary easement to enter, inspect, repair, and maintain a canal or ditch.(2) No person may encroach upon or otherwise impair any easement for a canal or ditch… • (5) If a legal action is brought to enforce the provisions of this section, the prevailing party is entitled to costs and reasonable attorney's fees.

41. Attorneys’ Fees awarded to prevailing party Awarded in Ditch Litigation: • a party must successfully prevail on all claims raised pursuant to MCA §70-17-112 in order to be a prevailing party entitled to attorney’s fees under MCA § 70-17-112(5) • Property owner, which prevailed in action alleging interference with its easement rights in reservoir, attendant ditch, distribution system, and interference of its secondary easements to access the interests, was entitled to attorney fees and costs. (Sitz) • Because plaintiff successfully prevailed on all claims raised pursuant to MCA § 70-17-112, he is entitled to his attorney's fees and costs pursuant to MCA § 70-17-112(5), regardless of the fact that he was not the prevailing party on defendant's counterclaim. (Espy) • Graveley's encroachment claim is the only claim he brought pursuant to this statute. He prevailed on that claim. The District Court therefore correctly granted him attorney's fees. (Graveley)

42. Attorneys’ Fees awarded to prevailing party Other: • No Injunction for Ground Water Pumping Violation When Water Use Permit Granted -- Request for Attorney Fees Moot (Faust)

43. Confederated Salish and Kootenai Tribes v. Clinch, 297 Mont. 448 (12/30/99) • Plaintiff’s Claim: Water use permits could not be issued on the reservation until the Tribes' reserved water rights had been quantified based per MCA § 85-2-311(1)(e), the legislature passed and the governor signed, S.B. 97 which amended this relevant provision for the specific purpose of allowing the Department to issue water use permits prior to the quantification of the Tribes' reserved water rights. The enactment of S.B. 97 violates Article IX § 3(1) of the Montana Constitution which protects existing water rights, and prior decisions of this Court discussing the pervasive nature of the Tribes' water rights on the reservation.

44. Confederated Salish and Kootenai Tribes v. Clinch, 297 Mont. 448 (12/30/99) • Prevailing Party: PLAINTIFF • Remedy of the Court: DNRC was enjoined from issuing water use permits on Indian reservation until water rights of tribes had been quantified. • Supreme Court Holding: Affirmed injunction: The DNRC could not determine whether water is legally available on the Flathead Indian Reservation until the Tribe's rights are quantified by compact negotiation pursuant to MCA § 85-2-702, or by a general inter sese water rights adjudication. Accordingly, we order that the Department not issue further water use permits on the Flathead Reservation until the Tribes' rights have been quantified.

45. Espy v. Quinlan, 2000 MT 193 (07/18/00) • Claim: Plaintiff alleged the Defendants interfered with his ditch easement; Defendants alleged plaintiff interfered with their road easement. • Prevailing Party: BOTH! • Remedy of the Court: EACH party obtained a permanent injunction restraining the other from interfering with the easements. The original plaintiff was awarded fees and costs. • Supreme Court Holding: Affirmed on all counts. The original plaintiff won on his ditch claim, and so was entitled to fees under 70-17-112. The defendant’s claim was for a road easement, which does not carry fees.

46. Ryan v. Harrison & Harrison Farms L.L.L.P., 2001 MT 128N (07/24/01)(noncitable) • Plaintiff’s Claim: asked for declaratory judgment that he had a right to fish in Lois Lake. Later amended complaint to request injunction. • Trial Court: found plaintiff had no right to trespass across private property to obtain access to lake; issued injunction to defendant landowner prohibiting plaintiff from further trespass. • Supreme Court: Affirmed.

47. In re Deadman's Basin Water Users Ass'n, 2002 MT 15 (01/29/02) Inception of case: District Court judge unilaterally issued order prohibiting irrigation from Deadman’s Basin. Plaintiff Micks did not believe the order applied to him, and continued irrigating. The Court held him in contempt. Plaintiff’s Claim: Micks then moved for temporary restraining order the preliminary injunction prohibiting the water commissioners from interfering with Micks’ use of the water. Trial Court: denied the motion Supreme Court: reversed, found that the District Court had exceeded its authority when it made a priority determination regarding domestic and irrigation water consumption based on its own inclinations, rather than the plain language of the water purchase contract HELD: Micks’ motion for tro and preliminary injunction should have been granted

48. Williams v. Schwager, 2002 MT 107 (05/23/02) • Plaintiff’s Claim: The Plaintiffs sued their neighbors to obtain injunctive relief against interference with a water well that parties shared. • Prevailing Party: PLAINTIFF was awarded a permanent injunction prohibiting defendants from interfering with plaintiff’s water supply and affirmatively requiring defendants to participate in filing a joint application for continued use of the well • Supreme Court Holding: AFFIRMED. Agreement on shared water well was enforceable via injunction.

49. Confederated Salish and Kootenai Tribes v. Stults, 2002 MT 280 (12/06/02) • Plaintiff’s Claim: Invoking the Supreme Court’s original jurisdiction, the CS&K Tribes filed petition for writ of supervisory control, seeking to enjoin DNRC from issuing a new water permit and to hold DNRC and its officials in contempt of court, relying on earlier Montana Supreme Court rulings. (Ciotti. Clinch, and the Order of May 31, 2001) • The Tribes further contended that as a sovereign nation they should not be required to defend their water rights in piecemeal proceedings before a hostile forum.

50. Confederated Salish and Kootenai Tribes v. Stults, 2002 MT 280 (12/06/02) • Prevailing Party: PLAINTIFFS • Supreme Court Holding: The DNRC was ordered not to issue further water use permits on the Flathead Reservation until the Tribes' federally reserved water rights have been defined and quantified. • The Court declined to decide whether the DNRC was in contempt of court because of factual issues “better resolved by a District Court”