Chang, Kyle K.

English

University of Denver

Water Law Review Volume 8 Issue 2 Article 55 1-1-2005 Bitterroot River Protective Ass'n v. Siebel, 108 P.3d 518 (Mont. 2005) Kyle K. Chang Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Kyle K. Chang, Court Report, Bitterroot River Protective Ass'n v. Siebel, 108 P.3d 518 (Mont. 2005), 8 U. Denv. Water L. Rev. 697 (2005). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSapplicable. Conversely, Titan maintained that the conditions of the1996 NPDES permit were not applicable because Fidelity never in-stalled the groundwater wells. Titan also asserted that MDEQ'smethod for calculating the concentration of regulated substances wasincorrect.The court reviewed the Commission's decision to fine Titan. Spe-cifically, the court addressed whether the Commission's order (1) wassupported by substantial evidence, (2) was arbitrary or capricious, (3)was beyond the power of the administrative agency to make, or (4)violated one of Titan's statutory or constitutional rights.The court determined that substantial evidence supported theCommission's order and that the Commission did not act arbitrarilyand capriciously in issuing the order. During the two-day hearing, theCommission heard evidence from both parties, including dischargemonitoring reports submitted by Titan indicating that Titan exceededdischarge limits specified in its NPDES permit. Thus, the Commissionhad substantial evidence for concluding that Titan violated the condi-tions of its NPDES permit. Similarly, given the length of the hearingand the information submitted, the Commission did not act arbitrarilyor capriciously. The Commission could have imposed a $400,000 fineon Titan for the NPDES permit violations, but instead only fined Titan$5000.Mississippi statutes authorized the Commission to impose a penaltyof up to $25,000 for each violation of a statute or regulation. Thus, thecourt found the Commission to be well within the Commission's powerupon imposing a mere $5000 fine. Additionally, the court deferred tothe Commission's interpretation of the Commission's own regulationand methods for calculating the concentration limits imposed by theNPDES permit.Lastly, the court found the Commission did not violate Titan'sstatutory or constitutional rights. The court rejected Titan's allegationthat the MDEQ engaged in selective enforcement. To maintain aclaim of selective enforcement, the court reasoned that Titan, in addi-tion to showing other similarly situated facilities violated the law at is-sue, also needed to show that the Commission based its decision toselectively prosecute Titan on impressible grounds, such as race or re-ligion. The court determined Titan failed to demonstrate the Com-mission singled Titan out or that MDEQ based its prosecutorial deci-sions on impermissible grounds. Therefore, Titan could not demon-strate that MDEQ engaged in selective enforcement. Accordingly, thecourt affirmed MDEQ's order fining Titan $5000.Cheryl R MillerMONTANABitterroot River Protective Ass'n v. Siebel, 108 P.3d 518 (Mont. 2005)(holding significant amendments to a pending water appropriationIssue 2WATER LAW RE VIE Wapplication yielded a completely new application for purposes of theapplication process).In March 1999 Kenneth and Judith Siebel applied to the MontanaDepartment of Natural Resources and Conservation ("DNRC") to ap-propriate Bitterroot River Basin ("Basin") water to their ranch ten daysbefore the Montana legislature closed the Basin to new water appro-priations. The Siebels' applications stipulated the intended use of thewater as for the beneficial use of wildlife. Subsequent to filing theirapplications, the Siebels amended all four applications to reflect in-creases in the requested water amounts and changes in the means andpoints of diversion and the points of use. DNRC wrote to the Siebels,requesting further justification for the requested amendments. Uponreceiving the Siebels' response, DNRC published a Notice of Applica-tion and entertained objections from the public regarding the Siebels'applications. The Bitterroot River Protective Association, the MontanaDepartment of Fish, Wildlife, and Parks, the United States Fish andWildlife Service, and a Basin resident (collectively "BRPA") objected tothe applications. Specifically, BRPA argued the Siebels failed to articu-late a beneficial use of the requested water.A DNRC Hearing Examiner found the Siebels failed to establish abeneficial use for the water requested and, accordingly, denied theSiebels' applications. The Siebels appealed to DNRC. DNRC reversedthe Hearing Examiner and granted all four of the Siebels' applications,concluding the Siebels proved the amounts of water requested were"reasonably necessary" to achieve a beneficial use. BRPA appealed theDNRC decision to the District Court of the FirstJudicial District for theCounty of Lewis and Clark.The district court held DNRC erred by failing to recognize the Sie-bels' amended applications as new applications. In particular, the dis-trict court found the application amendments to be so substantial thatthe amended applications constituted new applications effectivelybarred by the Montana legislature's closure of the Basin to new waterappropriations. The Siebels appealed to the Montana Supreme Court.The supreme court agreed with the district court that the Siebels'amended applications constituted new applications and were not mere"refinements" of their original applications because the applicationchanges were so significant that the amended applications did not re-semble the original applications. Explicitly, the amended applicationsrequested water amounts more than quadrupled the original re-quested amounts, and each of the amended applications changed oneor more of: the means of diversion, the points of diversion, and thepoints of use. The court noted it had previously stated that changes tothe place of diversion and changes to the place of use in water appro-priation applications constituted significant changes indicative of aVolume 8COURT REPORTSnew appropriation. As such, the court refused to consider the applica-tion amendments as refinements to the Siebels' original applications.The court also rejected the Siebels' argument that water appropria-tion applications needed only to indicate the applicant's interest inacquiring water and did not need to specify water amounts, water uses,or means and places of diversion. The court recognized such an appli-cation was acceptable prior to passage of the 1973 Montana Water UseAct ("Act"). However, the Act fundamentally changed the appropria-tion process, thereby requiring specificity and completeness in appro-priation applications.The court thus affirmed the district court's decision to deny theSiebels' application for water appropriation.Kyle K ChangNEBRASKABaumbach v. Hauxwell, No. A-03-549, 2004 Neb. App. LEXIS 247(Neb. Ct. App. Sept. 21, 2004) (holding the trial court erred in grant-ing adverse possession claim where disputed boundary was the threadof an old river bed, the river was moved by an act of avulsion, and therewas no showing of continuous possession or claim of ownership).In a quiet title action, Bill Baumbach ("Baumbach"), Patrick andCecily Bolte ("the Boltes") claimed adverse possession against Bryan,Doug, and Ami Hauxwell ("the Hauxwells"), and John Doe in the Dis-trict Court for Red Willow County, Nebraska. The district court qui-eted title in favor of the Boltes, and the Hauxwells appealed. Afterreviewing the facts de novo, the Nebraska Court of Appeals reversed.The Boltes purchased riparian land on the south side of the Re-publican River from Baumbach in January 2000. Prior to 1935, theRepublican River served as a boundary line for several lots to the southof the land the Boltes purchased. The boundary of riparian lands ex-tended to the thread, or center, of the river channel. In 1935 a floodcaused the Republican River to shift its course to the north. This was asudden act of avulsion and, as a result, the boundary line did not shiftwith the river as it would during a slow process of accretion. For landto be riparian, it must have water flowing over it or along its border.Because the sudden avulsion in 1935 moved the flow of the river with-out moving boundary lines, the lands south of the old RepublicanRiver no longer bordered water and, therefore, lost their riparianrights. When the Boltes purchased their land in 2000, the deedgranted them riparian land starting from the thread of the currentRepublican River, then going south to where the thread of the Repub-lican River existed prior to 1935. However, a fence existed to the southof the old river thread on land the Hauxwells owned in 2000. TheBoltes claimed they owned the Hauxwell property south of the oldriver thread, to the fence, through adverse possession.Issue 2

Bitterroot River Protective Ass\u27n v. Siebel, 108 P.3d 518 (Mont. 2005)

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Bitterroot River Protective Ass\u27n v. Siebel, 108 P.3d 518 (Mont. 2005)

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