Rule 12 Department Assistance

Rule 12(a). Direction. The water court may at any time direct the department to provide such information and assistance as may be required by the water court to adjudicate claims of existing rights, as provided in § 85-2-243, MCA.

Rule 12(b). Requests for assistance.

(1) All water court requests for department assistance issued after the expiration of the notice of intent to appear filing period and directed at the adjudication of a specific claim or claims contained in the decree shall be made in writing, delivered to the department, and served upon all parties in the water court proceeding that are identified on the water court service list involving the claim or claims which are the subject of the request for assistance. The request for assistance shall:

(i) state the basis for the request for assistance. If the request for assistance has been initiated at the request of the department, the water court's written request for assistance shall identify the information conveyed to the water court by the department and the department employee who conveyed the information to the water court;

(ii) specify the elements of each water right claim or claims to be reviewed by the department;

(iii) if known, identify the department employee who will conduct the review;

(iv) notify all persons on the water court service list of their right to submit written information to the department concerning the elements of the water right claim or claims being reviewed by the department and shall require all persons who submit information to mail a complete copy to all persons on the water court service list;

(v) specify a time period for completion of the department’s review and the submission of the department’s memorandum; and

(vi) direct the department to file the original memorandum with the water court and mail a complete copy of the memorandum to all persons on the water court service list.

(2) The department must document all contact with the claimant or any other person regarding the water right claim as provided in Rules 43 and 44 W.R.C.E.R. All persons on the water court service list are entitled to notice and reasonable opportunity to be present during any field investigation conducted in conjunction with the request for assistance.

(3) If necessary during the course of the review, the department may communicate in writing with the presiding water judge or water master to discuss the substance of the review being conducted by the department. All such communication and court response must be in writing with full service upon all persons on the water court service list.

Rule 12 (c). Field investigations. Upon written order of the water court, the department shall conduct field

investigations of claims. Unless otherwise directed by the water court, a field investigation shall be conducted with the claimant or a claimant’s representative in attendance. The other persons on the water court service list may attend for the purpose of observing the department’s field investigation.

(1) The water court’s written order for field investigation shall:

(i) state the basis for the order;

(ii) specify the elements of each water right claim or claims to be field investigated by the department;

(iii) if known, identify the department employee who will conduct the field investigation;

(iv) specify a time period for completion of the field investigation and the submission of the department’s field investigation report; and

(v) direct the department to file the original field investigation report with the water court and mail a complete copy of the report to all persons on the water court service list.

(2) When the water court orders a field investigation, the department shall contact the claimant or the claimant’s representative to establish the date and time of the field investigation and, when necessary, to arrange access. The date and time for the field investigation shall be confirmed through a letter from the department to the claimant with a copy sent to the water court, the person who has arranged access, and all other persons on the water court service list.

(3) The department shall send its confirmation letter at least 20 days before the intended date of the field investigation. The 20-day notice period may be shortened by order of the water court, or waived by written agreement of all persons on the water court service list.

(4) The field investigation data will be documented in accord with Rules 43 and 44 W.R.C.E.R. The department shall file the original field investigation report with the water court and mail a complete copy of the report, including a certificate of mailing, to all persons on the water court service list.

(5) If necessary, the department may communicate in writing with the presiding water judge or water master to discuss the substance of the field investigation. All such written communication must be served upon all persons on the water court service list.

(6) The water court may set a deadline for parties to comment on the department’s final memoranda for requests for assistance or on the department’s field investigation reports.

(7) This Rule does not limit the authority of the water court to issue appropriate orders under the provisions of Rule 34, M.R.Civ.P., or Rule 614, M.R.Evid.