Irrigation District: Court rules no access, no taxes

The Missoulian


Missoula, MT - The Missoula Irrigation District is guilty of "taxation without irrigation" and must stop collecting fees from 549 landowners who live within its boundaries but have no access to ditch water, the Montana Supreme Court ruled.

The landowners cannot even "access the irrigation waters to dump their tea in protest," Justice Bill Leaphart wrote in the 4-1 ruling, which affirmed as constitutional a 1997 law that allowed property owners to petition their way off the irrigation district's tax roll.

The lone dissent came from Justice Terry Trieweiler, who said the law was unfairly written so it applied only to people who live in the Missoula Irrigation District "and are fortunate enough to have the bill's sponsor as one of their fellow residents."

"Not only has the Missoula Irrigation District been singled out for unfavorable treatment, the property owners in the Missoula Irrigation District have been singled out for favorable treatment," Trieweiler wrote.

Property owners in other, similarly urbanized irrigation districts in Montana cannot remove themselves from taxation by showing they do not benefit from the irrigation.

The Missoula case dates to a 1996 survey by the City-County Health Department showing that 69 percent of the property owners in the Missoula Irrigation District have no access to ditch water - and no feasible way to gain that access.

In the 80 years since the district was created, farms have been subdivided into residential neighborhoods, leaving some homeowners many blocks - or even miles - from the irrigation ditches their taxes support.

Of 2,748 acres of land in the district, only about 900 acres were irrigated when the Health Department conducted its survey. Three-fourths of the water went to lawns and backyard gardens.

The Missoula Irrigation District's diversion point is at Jacobs Island near the University of Montana. Its main channels flow west and southwest across the city; a southern channel is almost completely within the city limits.

After the Health Department's survey was released, former state Sen. Mike Halligan introduced legislation allowing landowners who have no access to Missoula Irrigation District waters to petition for removal from the district.

Halligan lives in the district and was among the 549 people who asked to be taken off the tax rolls after the bill passed and was signed into law by then-Gov. Marc Racicot.

When he wrote the legislation, though, Halligan did not know he lived within the Missoula district's boundaries, he said Monday.

Yes, he said, the law was narrowly written, but that was because "the farm and ranch community was in great alarm" when he proposed a more wide-ranging bill. Still, Halligan said, his law is not special-interest legislation.

The high court agreed, with Leaphart writing that "whether the legislation applied to the entire state or only to Missoula, the declared objective remained the same: to offer persons who are not served by the irrigation district works relief from assessments.

"We hold this is indeed a legitimate governmental objective."

Now that the law is established, work will shift to hearing the property owners' petitions, said Martha McClain, the deputy Missoula County attorney who represented the county's interests in the case.

"We are very happy with the outcome," she said. "But the significant thing for people to understand is that even if you were one of the 500 who filed petitions, you are not yet out of the irrigation district."

Next will come a District Court hearing, then a schedule for handling each of the petitions. Everyone who asked to be taken out of the district will receive written notice of any hearings, McClain said.

In the time it took for the District Court and now the Supreme Court to hear the irrigation district's appeals, Halligan's legislation expired. So only those people who filed petitions for removal from the district by Dec. 31, 1998, are affected by the high court's ruling.

All others must continue paying taxes, even if they have no access to ditch water.

Attorney Ray Tipp, who is the irrigation district's secretary, did not return phone messages from the Missoulian on Monday. In the past, he has defended the taxation, saying it is the property owner's responsibility to gain access to ditch water.

As created Oct. 14, 1922, the Missoula Irrigation District was designed to manage a ditch system for the benefit of people who owned water rights along the ditch, Tipp has said. The intent has not changed since, although the land through which the ditches run has changed considerably.

Property subdivisions have made it hard to see why land that has no access to ditch water remains in the irrigation district, he said. But by Tipp's reading of state law, the irrigation district has every right to tax every parcel within its boundaries.


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