Schutter v. Board of Land Comm.

Opinion

j ORIGINAL 03/26/2024

Case Number: DA 23-0314

IN THE SUPREME COURT OF THE STATE OF MONTANA

DA 23-0314 FILED tvIAR 2 6 2024 Bowen Greenwood DEBRA V. SCHUTTER and SIDNEY J. Clerk of Supreme Court State of Montana SCHUTTER,

Claimants and Appellants, v. ORDER STATE OF MONTANA BOARD OF LAND COMMI SSIONERS,

Objector and Appellee.

Appellants Debra and Sidney Schutter move this Court to stay the appeal for the purposes of remand to the Water Court for consideration of newly discovered evidence. Appellee Board of Land Commissioners objects. Schutters claim that counsel recently discovered, while working on an unrelated case before the Water Court, a change in then-Department of State Lands policy in the early to mid-1990s related to the issue on appeal in this case, whether the State would claim an ownership interest in water diverted on private land but used on State lands. They seek remand to the Water Court to consider whether the Department's change in policy violated Montana law requiring notice and rulemaking or approval by the Land Board. The Department responds that there is no legal support for the relief sought, that the Department's policy is not newly discovered evidence, and that the issue before this Court depends on the law and facts considered by the Water Court. Schutters subsequently submitted a notice that the Board has scheduled a briefing at its April 2024 meeting from the Department of Natural Resources and Conservation on its policy regarding rights to water used on State land. This appeal is fully briefed and under consideration by the Court. Having reviewed the parties' submissions, we conclude that a stay for purposes of remand to the Water Court is inappropriate. IT IS THEREFORE ORDERED that the motion to stay this appeal and remand to the Water Court is DENIED. The Clerk is directed to provide notice of this Order to all counsel of record. DATED this 210 day of March, 2024.

Chief Justice

Justices