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Aerial view of Flatwillow Creek

This Google Earth satellite image shows Flatwillow Creek winding through the center of the photo. Irrigation water drawn from the stream is at the center of an ongoing court battle.

A Petroleum County water right dating back to 1882 is again tied up in legal wrangling between one of Montana’s largest landowners and a Billings man.

Wilks Ranch Montana LTD, owned by billionaire brothers Dan and Farris Wilks, has appealed a water rights case to the Montana Supreme Court. The brothers are joined in the lawsuit by downstream water user Dan Iverson.

Farris Wilks

Farris Wilks and his brother Dan have filed suit over a senior water right along Flatwillow Creek.

Together they claim that a Water Court judge erred in his June 2018 findings that Gene Klamert’s senior water right on Flatwillow Creek had not been abandoned, calling the judge’s ruling incorrect, erroneous and without evidence. The Wilkses and Iverson own land upstream of Klamert.

The appellants claim that, despite the ruling by a Water Master and Water Court judge to the contrary, Klamert has little to no proof that over the course of 17 years he made use of the water right. The Wilkses and Iverson point to the fact that although Klamert claims to have used the water right, that usage never shows up in the water commissioner’s records.

They further argue that since Klamert claims to have used water that wasn’t recorded, his usage was illegal and in that case constitutes abandonment of the water right.

Should the Supreme Court rule in their favor, attorneys for the Wilkses and Iverson are asking that the Water Court judge’s ruling be reversed and that the case be sent back to the Water Court for a ruling that the water right was indeed abandoned.

Klamert’s attorney, Jo Casey, has filed documents with the state’s high court arguing just the opposite: that the Water Court judge’s ruling should stand because Iverson and the Wilkses “failed to prove by a preponderance of the evidence” that Klamert’s water right had been abandoned. His rights were first challenged in 2011, so the legal fight is now entering its eighth year.

At stake are Klamert’s five decreed water rights on Flatwillow Creek, which total 34 cubic feet per second of water to irrigate just over 730 acres south of Winnett. That may not sound like a lot of water, but one hydrologist testified that between 1988 and 2004 the creek probably averaged only 5 cfs a year.

Klamert purchased the water rights when he bought the Bullseye Ranch in 1998 from the Nebraska Feeding Co. The earliest of those five water rights was filed on April 25, 1882. That was seven years before Montana became a state and only a month after Frederick Billings and investors platted the city of Billings.

Someone had the foresight at the time to file a water claim in an area that was quickly becoming cattle country. The DHS Ranch — founded by Helena banker Andrew Davis, Samuel Hauser and Granville Stuart — was founded in 1879 just south of the Judith Mountains in what is now Fergus County.

Nearby, Thomas Cruse — another Helena millionaire who made his fortune in gold mining — bought the Montana Sheep Co. in 1885 along Flatwillow Creek. That would become the heart of the N-Bar Ranch, one of the Wilks brothers’ first land purchases in Montana. Under Cruse the ranch expanded, eventually totaling about 19,000 acres.

When the Wilkses bought the ranch in 2011 the N-Bar had grown to 62,000 acres. By 2012 the brothers had added adjacent and nearby properties in three counties — including the 64,000-acre Pronghorn Ranch — to raise that figure to more than 177,000 acres.

Final briefs were filed in the case on Feb. 13, so the lawsuit has been sent to the Supreme Court for consideration. After review the case will be assigned to either a five-judge panel or the whole court which will decide whether or not to hear oral arguments. A ruling could be expected anywhere from 90 to 120 days.

Under Montana water law a water right with an early priority date is beneficial since water is allocated on a “first in time is first in right” basis. The earlier the priority right the better the water right. Water rights in Montana also have value, increasing a property’s worth.

In 1973 Montana embarked on a massive water adjudication process for nearly all water rights. Claims for all existing rights were required to be filed with the Department of Natural Resources and Conservation by 1982.

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