LITTLE BIG WARM RANCH, LLC, and MARK FRENCH, Plaintiffs, Appellants, and Cross-Appellees, v. WILFRED L. DOLL, Defendant, Appellee, and Cross-Appellant, and BRIAN ROBINSON, Defendant

LITTLE BIG WARM RANCH, LLC, and MARK FRENCH, Plaintiffs, Appellants, and Cross-Appellees, v. WILFRED L. DOLL, Defendant, Appellee, and Cross-Appellant, and BRIAN ROBINSON, Defendant. Oral Argument is set for Wednesday, October 18, 2023, at 9:30 a.m. in the courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana. Live-streamed through the Court’s website at http://stream.vision.net/MT-JUD/ Little Big Warm Ranch and Wilfred Doll each have water rights to the Big Warm Creek with the same priority date. The Water Court previously determined, and the Montana Supreme Court affirmed, that LBWR has a share of 22.46% of the water, Doll has a 62.17% share, and another user has a 15.36% share that is subordinate to LBWR’s and Doll’s rights. When sufficient water is present in the Creek, LBWR may divert up to 4.49 CFS and Doll may divert up to 12.43 CFS. Both LBWR and Doll can divert water at the Ester Headgate, and Doll has additional points of diversion available downstream. In summer 2021, during low water flow, LBWR diverted 100% of the creek, totaling less than 4.49 CFS, at the headgate. After the Water Court ordered the headgate reopened to maintain the status quo, LBWR argued that if Doll chose not to divert water for his use at the headgate, then he was entitled only to whatever remained in the creek after LBWR diverts up to 4.49 CFS at the headgate. LBWR asserted that the percentages were merely illustrative of the Water Court’s apportionment of LBWR’s and Doll’s decreed rights that had once been under common ownership. The District Court disagreed with LBWR, concluding that Montana courts apply first in time, first in right—not first in diversion—to administer decreed water rights. It directed the Water Administrator that, during times when the creek is flowing less than 12.5 CFS at the headgate, 22.46% of the flow be diverted for LBWR’s use with 62.17% of the flow left instream for Doll’s use downstream. LBWR appeals the District Court rulings. Doll has cross-appealed on the issue of attorney fees.