Neal et al v. Greenfields Irrigation District et al

Filing 156

IT IS ORDERED Greenfieldss Motion for Partial Summary Judgment Regarding Canal Easement (Doc. 96) is GRANTED as to the existence of the easement and Plaintiffs Motion for Partial Summary Judgment Regarding the Easement (Doc. 100) is DENIED. To the ex tent that Greenfieldss or Plaintiffs motions for partial summary judgment ask this Court to determine whether Defendants have exercised ordinary care in operating and maintaining the Willow Creek Feeder Canal or exceeded the scope of any easement, the motions are DENIED. Signed by Judge Brian Morris on 6/3/2024. (SLL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
LLOYD and DANIELLE NEAL, JAMES
P. TROY, and DAVID M. SABATO and
MITZI B. SABATO as trustee of SABATO
DAVID M AND SABATO MITIZI B 2017
REVOCABLE TRUST,

CV-21-106-GF-BMM
ORDER

Plaintiff,
v.
GREENFIELDS IRRIGATION DISTRICT,
FORT SHAW IRRIGATION DISTRICT,
UNITED STATES, and DOES A-E,
Defendants.
INTRODUCTION
Plaintiffs Lloyd and Danielle Neal, David M. Sabato and Mitzi B. Sabato, and
James P. Troy (collectively “Plaintiffs”) filed this action to recover for damage
allegedly caused by Greenfields Irrigation District’s and Fort Shaw Irrigation
District’s (collectively “Defendants” and individually “Greenfields” or “Fort
Shaw”) operation of an irrigation project that flows through Plaintiffs’ properties.
(Doc. 5.) The United States was joined as a necessary party since Defendants had
entered contracts relating to the operation of the irrigation project. (Doc. 44, at 1-2;
Doc. 49–50.)

Greenfields and Plaintiffs move for partial summary judgment as to the
existence and spatial boundaries of the right way reserved to the United States over
the Plaintiffs’ properties pursuant to the 1890 Canal Act (“Canal Act”). (Doc. 96;
Doc. 100.) Plaintiffs move for summary judgment that if the right of way does exist,
the Defendants’ use has exceeded the right of way’s permissible scope. (Doc. 100.)
FACTUAL BACKGROUND
The Sun River Project sits in central Montana, within the counties of Teton,
Cascade, and Lewis and Clark. (Doc. 117-1 at 3.) The Sun River Project is a 91,000acre irrigation project that was authorized under the 1902 Reclamation Act. (Id. at
3–4, 8.) Defendants entered a contract with the United States Bureau of Reclamation
(“Bureau of Reclamation”) to operate and maintain the Sun River Project. (Doc. 104,
¶¶ 1, 3; Doc. 34, ¶ 7.)
Greenfields began using the Willow Creek Feeder Canal, which is part of the
Sun River Project, in 1941. (Doc. 111, ¶ 10.) The Willow Creek Feeder Canal begins
where it receives water from the Pishkun Supply Canal and ends at the Willow Creek
Reservoir. (Doc. 117, ¶ 2.) The Willow Creek Feeder Canal is approximately sixteen
miles long. (Doc. 111, ¶¶ 2–5.)
The upper segment of the Willow Creek Feeder Canal is composed of
engineered structures that direct the water to where it otherwise would not flow.
(Doc. 111, ¶ 4.) The upper segment extends approximately seven and a half miles
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with its origin at the Pishkun Canal. (Id., ¶¶ 2, 4.) The upper segment ends where it
empties water into the lower segment (the “natural segment”). (Id., ¶¶ 2, 4.) The
natural segment is a naturally occurring landscape that functions as a drainage. (Id.,
¶ 7.) Gravity and the natural segment’s contours convey the water eight and a half
miles downstream where it ends by converging with Willow Creek shortly before
the creek empties into the Willow Creek Reservoir. (Id., ¶¶ 6–7.)
The Willow Creek Feeder Canal’s natural segment falls entirely within the
boundaries of Plaintiffs’ properties, except for a small parcel of land owned by a
non-party and a portion of land owned by the State of Montana. (Id., ¶ 6; Doc. 112
at 4.) The land patents to Plaintiffs’ properties state that the properties are subject to
the Canal Act’s right of way, except for a 10-acre parcel owned by Plaintiff Neal
over which Plaintiff Neal’s predecessor granted an easement to the United States to
operate and maintain the Willow Creek Feeder Canal. (Doc. 104, ¶¶ 12–13.)
Conveying water through the Willow Creek Feeder Canal has caused its banks
to erode, sediment to deposit within its channel, and the banks to move laterally. The
Willow Creek Feeder Canal’s contours also have changed since the Willow Creek
Feeder Canal was first used. (Id., ¶¶ 14–15, 18–20, 21, 23).
LEGAL STANDARD
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
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matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that may affect the
outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
genuine material fact dispute requires sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. Id. at 248.
DISCUSSION
Greenfields and Plaintiffs dispute whether the Willow Creek Feeder Canal’s
natural segment is “constructed,” and, therefore, represents part of the right of way
reserved to the United States by the Canal Act. If the natural segment constitutes
part of the right of way, the parties assert different ways to determine the right of
way’s spatial boundaries. Plaintiffs argue that if the right of way exists, Greenfields
has exceeded the right of way’s boundaries or unnecessarily harmed Plaintiffs when
operating the Willow Creek Feeder Canal.
Congress passed legislation in 1888 to withhold land in the United States from
further sale and reserved it as property of the United States. Green v. Willhite, 160
F. 755, 756 (C.C., D. Idaho 1906). Congress repealed this legislation in 1890 and
passed a series of acts to facilitate the reclaiming of arid lands. Id.; United States v.
Van Horn, 197 F. 611, 615. (D. Colo. 1912). The Canal Act was among these acts.
Aug. 30, 1890, c. 837, § 1, 26 Stat. 391. (codified as 43 U.S.C. § 945)
The Canal Act requires all land patents issued after August 30, 1890, to
expressly provide the United States a right of way “for ditches or canals constructed
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by the authority of the United States.” 43 U.S.C. § 945. The reservation of this right
of way sought to prevent interference with the United States’s ability to reclaim arid
land. Van Horn, 197 F. at 615.
I.

Statutory interpretation of the Canal Act.
Statutory interpretation begins by “‘determin[ing] whether the language at

issue has a plain and unambiguous meaning.’” United States v. Youssef, 547 F.3d
1090, 1093 (9th Cir. 2008) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997)). A court refers “to the language itself, the specific context in which the
language is used, and the broader context of the statute as a whole” to interpret
statutory text. Youssef, 547 F.3d at 1093 (quoting Robinson, 519 U.S. at 341)
(internal quotations omitted). When a statute does not define a word, the “ordinary,
contemporary, and common meaning” of the word is employed. United States v.
Gallegos, 613 F.3d 1211, 1214 (9th Cir. 2010) (quoting United States v. Iverson,
162 F.3d 1015, 1022 (9th Cir. 1998)) (internal quotations omitted).
A.

The Canal Act’s plain language is not ambiguous.
The Canal Act’s use of the word “constructed” is not ambiguous when

considered in the broader context of the statute as a whole. Congress made clear in
the series of laws it enacted along with the Canal Act that it aimed to facilitate the
United States’s reclamation of arid lands. Congress’s use of the word “constructed”
provided the United States wide latitude in how it could create a system to convey
water to arid lands. “Construct” is broadly defined as “to make or form by combining
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or

arranging

parts

or

elements.”

Construct,

Merriam-Webster,

https://www.merriam-webster.com/dictionary/construct (last visited May 21, 2024).
Plaintiffs argue that the term “constructed” requires canals to contain manmade components. Based on this definition, Plaintiffs argue that the United States
lacks a right of way over the Willow Creek Feeder Canal’s natural segment until
human engineering modifies it. (Doc. 101 at 6–7.) This interpretation would be
contrary to the Canal Act’s purpose. This interpretation also remains unsupported
by the ordinary meaning of the word “constructed.” To narrowly construe the word
“constructed” to require the United States to modify all canals within an irrigation
system would impose a burden on the United States’s ability to reclaim arid lands.
The ordinary meaning of construct does not require all portions of the whole to be
human engineered. The word construct means “to put together different parts to form
something whole.” Construct, Cambridge Dictionary, https://dictionary.cambridge.
org/us/dictionary/english/constructed#google_vignette (last visited May 21, 2024).
The Sun River Project uses the Pishkun Supply Canal and the upper segment
of the Willow Creek Feeder Canal to convey water to the natural segment. This
natural segment moves water downstream with no assistance from human
engineering. Employing man-made components to convey water to a naturally
occurring drainage in order to create a larger conveyance system meets the

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commonsense definition of constructed. The United States “constructed” the Willow
Creek Feeder Canal for the purposes of the Canal Act.
B.

“Constructed” lacks an established meaning at common law.
If a term used by Congress has an established meaning under the common

law, a court must infer that Congress meant to incorporate the established meaning
unless the statute otherwise dictates. Youssef, 547 F.3d at 1093 (quoting Neder, 527
U.S. 1, 21–22 (1999)). It appears from a review of caselaw that there was not an
established definition of the word “constructed” when Congress enacted the Canal
Act. Plaintiffs argue the Court should follow the interpretation of “construction” in
Baker Ranches, Inc. v. Zinke, 625 F. Supp. 3d 1080 (D. Nev. Sep. 1, 2022). (Doc.
101 at 8–11). The district court’s interpretation of “construction” in Baker Ranches
proves unhelpful because the 1866 Mining Act’s (“Mining Act”) purpose and
reservation differ from the Canal Act.
The Mining Act established “the right of way for the construction of ditches
and canals” on certain public lands. Baker Ranches, 625 F. Supp. 3d at 1099. The
Mining Act refers to state law to determine the scope of the right of way. Id. at 1103
(citations omitted). The claimants in Baker Ranches asserted an easement under the
Mining Act to a natural channel flowing through public lands. Id. at 1104–05. In
analyzing whether a party had access to maintain a natural channel under the Mining
Act, the district court determined that the Mining Act’s text did not “contemplate a
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right of way over a natural channel.” Id. at 1105. Baker Ranches relied on the Mining
Act’s text and resolved any ambiguity in the text by restricting the statutory grant
over public lands. See id. at 1104 (citing Caldwell v. United States, 250 U.S. 14, 21
(1919)). The district court looked to the purpose of the Mining Act and concluded
that “[t]he 1866 Act was not concerned with protecting existing rights-of-way over
natural channels of water, where no investment of construction was made.” Baker
Ranches, 625 F. Supp. 3d at 1105. Rather, it was “directed towards securing rightsof-way for the construction and maintenance of man-made water conveyances.” Id.
(emphasis added).
Unlike the Mining Act, which reserves a right of way to a private party over
public lands, the Canal Act reserves a right of way over private lands to the United
States. The sovereign grantor canon requires that any ambiguity of what constitutes
a “constructed” canal under the Canal Act be resolved in favor of the United States.
Alaska R.R. Corp. v. Flying Crown Subdivision Addition No. 1 & No.2 Property
Owners Ass’n, 89 F.4th 792, 799 (9th Cir. 2023), docketed for cert (No. 23-1041).
To narrowly interpret the word “constructed” to mean only man-made
portions of an irrigation system would disfavor the United States and inhibit the
Canal Act’s purpose of facilitating the reclamation of arid lands. The Court
reasonably construes the word “constructed” broadly in light of the context of the

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Canal Act and the word’s common usage. The Court finds that all parts of the Willow
Creek Feeder Canal, including the natural segment, are part of a “constructed” canal.
II.

The Canal Act reserved a surface right of way to the United States
that must be exercised with “ordinary care.”
When the scope of the statute’s reservation is undefined, the court applies

“common law principles, the sovereign grantor canon, and contemporaneous
[federal acts]” to determine the reservation’s scope. Alaska R.R. Corp., 89 F.4th at
799. The sovereign grantor canon requires that ambiguous land grants “be resolved
in favor of the government, to interpret the reservation expansively.” Id. at 802.
Congressional grants are “given a broader scope for the purpose of executing the
legislative intent.” Van Horn, 197 F. at 616 (citations omitted); see also United
States v. 5.61 Acres of Land, More or Less, in El Dorado Cnty., State of Cal., 148 F.
Supp. 467, 468 (N.D. Cal. 1957) (statutory reservations “reverse general rule that a
reservation by the grantor is to be construed in a light most favorable to the grantee”).
A.

Congress acted intentionally when it gave the United States a broad
reservation and limited private parties’ reservation on public
lands.
“[W]here Congress includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v.
United States, 464 U.S. 16, 23 (1983). Plaintiffs argue the textual differences in the
Canal Act and 43 U.S.C. § 946 demonstrate that Congress intended the Canal Act’s
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reservation to be more restrictive than the reservation related to water conveyances
created by § 946. (Doc. 103 at 8–9.) This interpretation runs contrary to the text of
both acts.
The Canal Act reserves to the United States a right of way to construct a canal
or ditch. The Canal Act does not specify the right of way’s spatial boundaries.
Section 946 reserves a right of way to private parties over public lands that already
have been “occupied by the water of any reservoir and of any canals and laterals and
fifty feet on each side of the marginal limits thereof . . . .” Section 946 requires the
private party to prove that a secondary easement is necessary to operate and maintain
for secondary rights to exist. The lack of parameters in the Canal Act’s text and the
express limits in the text of § 946 demonstrate that Congress had the ability to specify
boundaries but chose not to do so when drafting the Canal Act.
B.

Limits of the right of way.
The Canal Act fails to specify the characteristics of the right of way that it

reserves to the United States: it does not specify the servient and dominant estate,
duration, spatial boundaries, or associated rights of the right of way. This ambiguity
must be construed in favor of the United States and given a broad scope to account
for the Canal Act’s purpose. The Canal Act sought to avoid interference in the ability
of the United States to reclaim arid lands. Van Horn, 197 F. at 615.

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The Canal Act does not reserve a boundless and limitless right of way to the
United States. See United States v. Ide, 277 F. 373, 381–82, aff’d, 263 U.S. 497
(1924) (person cannot act recklessly or carelessly and cannot unnecessarily damage
the land); 5.61 Acres, 148 F. Supp. at 469. Ide confirmed that a party’s exercise of a
secondary easement must be reasonable and necessary and any additional burden is
compensable. Ide, 277 F. at 381–82.
The Court finds that the right of way reserved to the United States by the Canal
Act exists so long as the United States and Defendants continue to use the canal to
irrigate land. The right of way includes the right to access the Willow Creek Feeder
Canal, in its entirety, to operate and maintain the Willow Creek Feeder Canal. The
right of way would lose its effectiveness absent the right to access the Willow Creek
Feeder Canal to maintain and operate it.
Greenfields argues that the right of way proves limitless and that the Willow
Creek Feeder Canal can take as much space as required to fulfill the purpose of the
Canal Act. (Doc. 99 at 16.) The right of way carries limits. The United States must
exercise “ordinary care” when operating and maintaining the right of way. Ide, 277
F. at 381–82. Greenfields’s actions must be reasonable and necessary for the
operation and maintenance of the Willow Creek Feeder Canal. 5.61 Acres of Land,
148 F. Supp. at 468. Greenfields cannot operate or maintain the Willow Creek

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Feeder Canal in a manner that imposes an additional burden on the Plaintiffs’
properties. Id.
Actions by Greenfields that prove unnecessary or unreasonable for the
operation and maintenance of the Willow Creek Feeder Canal fall outside the scope
of the right of way. Plaintiffs have a right to recover for damages caused by
Defendants’ conduct that could be considered reckless, careless, unreasonable, or
unnecessary to operate and maintain the Willow Creek Feeder Canal. See Ide, 277
F. at 381–82 (plaintiffs not prejudiced from recovering “any damages resulting from
the want of ordinary care”); 5.61 Acres of Land, 148 F. Supp. at 469 (plaintiff has
right to recover if the easement increases the burden on the plaintiff’s land).
III.

Whether Defendants have acted with ordinary care and exceeded the
scope of the right of way depends on factual disputes that must be
resolved by a fact finder.

Plaintiffs and Greenfields agree to the following facts:
1. The contours of the Willow Creek Feeder Canal have changed
since it was first put to use;
2. The banks of the Willow Creek Feeder Canal’s natural segment
have moved laterally;
3. Sediment deposits have occurred within the channel of the
Willow Creek Feeder Canal due to the conveyance of water
through it; and
4. Water moving through the Willow Creek Feeder Canal has
caused and continues to cause erosion.
(Doc. 111, ¶¶ 14–15, 18–20, 21 23.)
Greenfields contends, however, that its use of the Willow Creek Feeder Canal
has been reasonable and diligent, and therefore, that the sediment, erosion, and
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contour change are not excessive. (Id., ¶¶ 16–17, 18–20, 27; Doc. 110 at 25.)
Plaintiffs have provided an expert report stating the use of the Willow Creek Feeder
Canal has caused substantial erosion and that poor maintenance and a lack of piping
or other remediation measures have caused the excessive erosion. (Doc. 102-5 at 3,
9–12.)
Greenfields disputes the facts within Plaintiffs’ expert’s report. (Doc. 110 at
25.) Greenfields argues that Greenfields always has operated the Willow Creek
Feeder Canal below its designed flow rate. (Id.) Greenfields supported its contention
with testimony from the Bureau of Reclamation designee stating that the Bureau of
Reclamation believes Greenfields has acted reasonably when operating and
maintaining the Willow Creek Feeder Canal. (Id.)
A genuine issue of material fact exists as to whether Greenfields has
appropriately operated the Willow Creek Feeder Canal based upon the evidence
submitted. The presence of a genuine issue of material fact renders summary
judgment inappropriate as to this issue. The Court denies Plaintiffs’ motion for
summary judgment.
ORDER
Accordingly, IT IS ORDERED Greenfields’s Motion for Partial Summary
Judgment Regarding Canal Easement (Doc. 96) is GRANTED as to the existence
of the easement and Plaintiffs’ Motion for Partial Summary Judgment Regarding the
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Easement (Doc. 100) is DENIED. To the extent that Greenfields’s or Plaintiffs’
motions for partial summary judgment ask this Court to determine whether
Defendants have exercised ordinary care in operating and maintaining the Willow
Creek Feeder Canal or exceeded the scope of any easement, the motions are
DENIED.
DATED this 3rd day of June, 2024.

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