IN THE WATER COURT OF THE STATE OF MONTANA. TO: ALL PARTIES MAY RE: 41C-139 Montana WateT Court

Transcription

1 IN THE WATER COURT OF THE STATE OF MONTANA * * * * * * * * * * * * * * * * * * * * NOTICE OF FILING OF MASTER'S REPORT SEE TO: ALL PARTIES MAY RE: 41C-139 Montana WateT Court This is to provide you with Notice that the Water Master has filed a Master's Report (Findings of Fact and Conclusions of Law) with the Clerk of the Water Court for the water right(s) listed above. A copy of the Master's Report is enclosed with this Notice. Please review this Master's Report carefully. If there are any corrections or changes that need to be made, you have 10 days from service of this Notice to file a written objection. You must mail a copy of your written oblection to all the other parties who have been involved in this proceeding and file a certificate of such mailing with the Water Court. (This procedure is required by Rule Water Right Claims Examination Rules and by Rules 5 and 53 of the Montana Rules of Civil Procedure.) DATED this 29th day of May, LORI M. BURNHAM Clerk of Court Montana Water Court P. 0. Box 879 Bozeman, MT (406) (in Montana)

2 Montana Water Court PO Box 879 Bozeman, MT (In-state only) (406) IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION RUBY RIVER BASIN (41C) * * * * * * * * * * * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF ) THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE RUBY RIVER DRAINAGE AREA INCLUDING ALL TRIBUTARIES OF THE RUBY RIVER IN MADISON AND BEAVERHEAD COUNTIES, MONTANA CLAIMANT: Don Goodman, Buyan Ranch, Inc. CASE NO. 41C C-W C-W k: MAY AktarYip Cva OBJECTOR: Kazuko Clark, Horse Creek Hay & Cattle, Joe A. Tezak, John Morningstar, Ernest J. Carlson, United States of America (USDA Forest Service) Montana Department of Fish, Wildlife & Parks MASTER'S REPORT On May 21, 1996 a Hearing was held on the objector Montana Department of Fish, Wildlife and Parks' (DFWP) and the United States Forest Service's (USFS) respective Motions for Summary - Judgment in the above-entitled case. In their Motions, DFWP and USFS request that the Water Court enter an Order Granting Summary Judgment and terminating water right claims 41C-W and 41C-W After consideration of the arguments presented at Hearing, and pursuant to Rules 53 and 56, M.R.Civ.P., the Master recommends that the Court enter the following Order: ORDERED that the DFWP's and USFS's Motions for Summary Judgment are hereby GRANTED; FURTHER ORDERED that water right claims 41C-W and 41C-W are hereby TERMINATED and shall not appear in the Final Decree of the Ruby River Basin (41C).

3 r The reasons for these recommendations are set forth in the accompanying Memorandum. DATED this

4 Montana Water Court PO Box 879 Bozeman, MT (1n-state only) (406) IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION RUBY RIVER BASIN (41C) * * * * * * * * * * * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF ) THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE RUBY RIVER DRAINAGE AREA ) INCLUDING ALL TRIBUTARIES OF THE RUBY ) RIVER IN MADISON AND BEAVERHEAD ) COUNTIES, MONTANA ) CASE NO. 41C C-W C-W ) MAY E) CLAIMANT: Don Goodman, Buyan Ranch, Inc. Vier 11P,r? OBJECTOR: Kazuko Clark, Horse Creek Hay & Cattle, Joe A. Tezak, John Morningstar, Ernest J. Carlson, United States of America (USDA Forest Service) Montana Department of Fish, Wildlife & Parks ri MEMORANDUM I. Introduction On May 21, 1996 a Hearing was held on the objector Montana Department of Fish, Wildlife and Parks' (DFWP) and the United States Forest Service's (USFS) respective Motions for Summary Judgment in the above-entitled case. The Hearing also involved similar Motions in a related case entitled 41C-141. The Hearing was held by telephone conference call originating through the offices of the Montana Water Court in Bozeman, Water Master Michael J. L. Cusick presiding. Present were the claimant, Don Goodman; objector objector objector objector objector Joe Tezak; attorney Mark Hoffman representing John Morningstar; attorney Douglas Smith representing Kazuko Clark; attorney G. Steven Brown representing and movant DFWP; and attorney Jody Miller representing and movant USFS. Prior to the Hearing, objector John

5 Morningstar joined in the Motions for Summary Judgment filed by DFWP and USFS. In their respective Motions, DFWP and USFS argue that there are no genuine issues of material fact regarding non-use and abandonment of water right claims 41C-W and 41C-W The movants base this argument on claimant's failure to respond to certain Requests for Admissions propounded by them concerning non-use and abandonment of these claimed rights. DFWP and USFS assert that as a result of claimant's failure to respond, he has admitted abandonment of these claims; therefore, there are no genuine issues of material fact remaining and the movants are entitled to judgment as a matter of law. DFWP and USFS request that the Water Court enter an Order Granting Summary Judgment and terminating the water right claims at issue in this case. II. Discussion Rule 36, M.R.Civ.P. provides that a party may conduct discovery by serving upon another party a written request for admission of the truth of certain factual statements. The Rule further provides that "[t]he matter is admitted unless, within 30 days after service of the request, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection.." Rule 36(a), M.R.Civ.P. Rule 36(b), M.R.Civ.P. then provides that "[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission." As part of its Discovery Requests in this case, DFWP served the following Requests for Admission on the claimant: -2-

6 REQUEST FOR ADMISSION 1. : Admit that water right claim 41C-W has not been used for mining purposes since at least REQUEST FOR ADMISSION 2: Admit that water right claim 41C-W has been abandoned. REQUEST FOR ADMISSION 3: Admit that water right claim 41C-W has not been used for mining purposes since at least REQUEST FOR ADMISSION 4: Admit that water right claim 41C-W has been abandoned. In its discovery requests, USFS served similar Requests for Admissions concerning non-use and abandonment of these water right claims upon the claimant. DFWP and USFS allege that claimant failed to respond to these Requests for Admissions. USFS further alleges that claimant verbally refused to respond to all Discovery Requests. At Hearing, claimant acknowledged that he refuses to respond to all of the objectors' Discovery Requests, including the requests for admissions set forth above. The Court then gave the claimant an opportunity to request additional time to respond to the objectors' Discovery Requests. Claimant stated that he did not want additional time to respond to the requests because he did not intend to respond to them. The purpose of summary judgment is to encourage judicial economy by eliminating unnecessary trials. It is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The movant has the burden of showing a complete absence of any genuine issue as to all facts considered material in light of the substantive principles that -3-

7 entitle the movant to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Cereck v. Albertson's, Inc., 195 Mont. 409, 411, 637 P.2d 509 (1981). Summary Judgment is appropriate where no genuine issue of material fact exists due to a party's admission of material facts resulting from a failure to respond to Requests for Admissions. Rule 36, M.R.Civ.P.; Holmes & Turner v. Steer-In, 222 Mont. 282, 285, 721 P.2d 1276 (1986); Allstates Leasing Co. v. Tophat Lounge, 198 Mont. 1, 649 P.2d 1250 (1982). The ultimate issue in this case, as raised by the objections to these water right claims, is whether the claimed water rights have been abandoned. Because the claimant refused to respond to the Requests for Admissions concerning abandonment, by operation of Rule 36, these claims are deemed abandoned. Rule 36(a), M.R.Civ.P. The ultimate fact issue has been deemed admitted. There are no genuine issues of material fact remaining in this case, and the movants are entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. DFWP and USFS are entitled to the relief requested in their Motions. The Water Court should enter an Order granting the Motions for Summary Judgment and terminating water right claims 41C-W and 41C-W as set forth in the Master's Report preceding this Memorandum. DATED this z day of

8 CERTIFICATE OF SERVICE I, Lori M. Burnham, Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above MASTER'S REPORT and MEMORANDUM was duly served upon the persons listed below by depositing the same, postage prepaid, in the United States mail. Don Goodman PO Box 101 Buyan Ranch, Inc. 226 Bivens Creek Rd J. Blaine Anderson, Jr. 112 South Washington St. Dillon MT Joe A. Tezak 2905 Hwy 287 Ernest J. Carlson 2788 Hwy 287 Jody Miller, Attorney PO Box 7669 Missoula MT Kazuko Clark 2976 Hwy 287 Douglas L. Smith PO Box 66 John Morningstar PO Box 342 Virginia City MT Mark D. Hoffman PO Box 1366 Dillon MT G. Steven Brown 1313 Eleventh Avenue Helena MT Steve Wood Horse Creek Hay & Cattle 2997 Hwy 287 DATED this day of, Lo Clerk Burnham Court

9 4!. / Montana Water Court./ PO Box 879 Bozeman, NT (In-state only) (406) IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION RUBY RIVER BASIN (41C) * * * * * * * * * * * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF ) CASE NO. 41C-139 THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) 41C-W WITHIN THE RUBY RIVER DRAINAGE AREA ) 41C-W INCLUDING ALL TRIBUTARIES OF THE RUBY ) fl Pa RIVER IN MADISON AND BEAVERHEAD " COUNTIES, MONTANA JAN CLAIMANT: Don Goodman, Buyan Ranch, Inc. 1 OBJECTOR: Kazuko Clark, Ray Bacon Ranches, Indr,'" Cla John Morningstar, Ernest J. Carlson, Buyan Ranch, Inc., United States of America (USDA Forest Service) Montana Department of Fish, Wildlife & Parks ORDER ADOPTING MASTER'S REPORT Pursuant to Montana Code Annotated, (4), the above entitled case was assigned to Water Master Michael J. L. Cusick. On May 29, 1996 the Water Master issued a report containing Findings of Fact and Conclusions of Law. Copies of the report were served upon the parties. Over ten (10) days have elapsed Since service, and no objections to the Findings and Conclusions have been filed by any party. The Court has reviewed carefully the Water Master's Findings and Conclusions. Pursuant to Rule 53(e), Montana Rules of Civil Procedure, the Court adopts the Master's Report and ORDERS that changes recommended in the Master's Conclusions of Law be made to the abstract of claim(s) listed above as they appear in the Temporary Preliminary Decree of the Ruby River Basin (41C). DATED this day of, C. Bruce Loble Chief Water Judge

10 CERTIFICATE OF SERVICE I, Lori M. Burnham, Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above ORDER ADOPTING MASTER'S REPORT was duly served upon the persons listed below by depositing the same, postage prepaid, in the United States mail. Don Goodman PO Box 101 Buyan Ranch, Inc. 226 Bivens Creek Rd Joe A. Tezak 2905 Hwy 287 Ernest J. Carlson 2788 Hwy 287 Jody Miller, Attorney PO Box 7669 Missoula MT Kazuko Clark 2976 Hwy 287 Douglas L. Smith PO Box 66 John Morningstar PO Box 342 Virginia City MT Mark D. Hoffman PO Box 1366 Dillon MT G. Steven Brown 1313 Eleventh Avenue Helena MT Steve Wood Horse Creek Hay & Cattle 2997 Hwy 287 DATED this \% day of, k._ Lo M. Burnham Clerk f Court