Response filed in Burgan case to County Attorney’s appeal of no immunity

A Response was recently filed to the Appeal in U.S. Court of Appeals for the Ninth Circuit filed by Carbon County Attorney Alex Nixon and former Carbon County Sheriff Thomas Rieger, to dismiss the case filed by William “Bill” Burgan in U.S. District Court. Burgan claimed they denied access to a headgate across the property of James Brien (Brien) that he held rights to through a 100 year old easement. Nixon and Rieger claimed immunity from the lawsuit due to their official capacities at the time.

According to court documents, in August 2013, Nixon and Rieger caused criminal trespassing charges to be filed against Burgan and his 17 year old son. The incident occurred after Burgan used an easement on a neighbor’s property to access a headgate regulating irrigation water flow to their ranch. Burgan states, “Their false charges and threat of future arrest deprived the Burgans of irrigation water for 18 months.” Burgan argues, “civil disputes cannot give rise to probable cause” and that therefore they had no criminal intent and the officer knew it.” Burgan claims he gave proof of his right of access to the Carbon County Sheriff’s Office about a month earlier.

The District Court denied any immunity to either party and refused to dismiss Burgan’s case. It did grant a full dismissal of the case brought by Lynette Burgan who was not charged with trespassing. Nixon and Rieger appealed the dismissal of their immunity issues to the higher court.

Burgan’s court documents allege “this case reeks of extortion” and lists the reasons. “Brien spent a year trying to force the Burgans from their easement. He lied about Bill Burgan endangering the young son of the Sironen family, an allegation the family disputed in writing.” When Brien locked the gate to the headgate access road and Burgan cut the lock, it is alleged in the Response, a deputy sheriff told Brien the matter was “civil” in response to Brien’s demand for criminal charges. It further alleges, “Brien successfully persuaded Appellants to cause criminal charges to be filed against the Burgans that Appellants knew were false. The deputy sheriff who served the criminal complaint the following day threatened Burgan with arrest if he used the easement again.”

In their Appeal, Nixon and Rieger claim either full or partial immunity regarding Burgan’s claim that they had violated his rights and maliciously sought to prosecute him. Burgan claims the easement has existed since 1894. It is a road easement to access a ditch headgate for the Hunter-Northey Ditch south and is adjacent to the Burgans’ property.

According to court documents, the Burgans acquired the easement upon purchasing the property in 1990 and have utilized it since then. Water diverted from that ditch flows north through the Burgan’s property and proceeds through the properties of other irrigators who use water from the ditch.

Burgan claims in court documents that neither Nixon nor Rieger are entitled to qualified immunity because the “right to be free of criminal charges in the absence of probably cause was clearly established and would have been known to a reasonable officer in the circumstances.” He says two questions exist in reviewing qualified immunity: “Whether the government official violated the plaintiff’s constitutional rights and if so, whether that right was clearly established…” It is further argued State law does not allow qualified immunity for state officials sued on state law causes of action.

Regarding allegations of Burgan being violent, Burgan’s response states he “was never violent nor is there any evidence presented.” The only threat was to “cut the lock” which was a civil matter. Even if Rieger was advised of a criminal trespass by Nixon he must act “as a reasonable officer in the circumstances.”

Burgan, according to court documents, claims the parties knew he had a valid access easement and that they stopped his use because of personal relationships: Nixon and Rieger socialized with Brien; Nixon and Brien were hunting partners on land leased by Nixon andNixon and Rieger attended Brien’s barbeques. Burgan is represented by Bozeman attorney Matthew Monforton. Nixon is represented by Raymond Kuntz of Red Lodge and Rieger is now represented by Billings attorneys Jock West and Tyler West although formerly represented by Anthony Kendall of Red Lodge in the appeal. Said Montforton, “Cops kicking an irrigator off of his irrigation easement is even worse than cops kicking a United Airlines passenger off of his flight."

According to court documents, a letter was obtained from the Montana Attorney General’s office which Burgan claimed clearly “recognized the civil natures of the dispute” and was received by Nixon a week before Burgan was charged. The Response states, “Nixon’s advice to Sheriff Rieger a week after receiving the Attorney General’s letter was astonishing.” Burgan’s Response states however, “Nixon was too clever by half. Absolute immunity does not apply to a prosecutor’s advice to law enforcement concerning probable cause…By not charging the Burgans himself, Nixon lost any absolute immunity claim he might have had.”

The Response also states that in 2013, Burgan “submitted to Undersheriff Dan McJunkin copies of the right to access the Hunter-Northey ditch which is located on the John Teini property out of Roberts.” McJunkin then wrote in his report, “Bill has access through a Patented right which was established in 1894.”

Court documents further state that the prior owner made it clear that the Burgans had an access easement and would “need continued unhindered access to their Dry Creek head-gate” and that Burgan always used his automobile to drive down the driveway.” In response to the Appellants’ claim of Burgan’s son’s driving endangering the neighboring Sironen’s son, Burgan in his reply claimed he obtained a letter from the Sironens denying such threat. On Aug. 15, 2013, Burgan and his son used the headgate access road to adjust their headgate. According to court documents, “Brien called the sheriff’s office and demanded charges be filed against them for trespassing. Sheriff Rieger consulted with Nixon later that day, who advised Sheriff Rieger that the Burgans had committed a criminal trespass…The deputy served Bill Burgan with the complaint at his residence then threatened to arrest Burgan if he again used the headgate access road.” According to court documents, two months earlier, a similar call from Brien had resulted in a deputy sheriff refusing to charge Burgan for a June lock cutting.

The Aug. charges against Burgan were dismissed on Jan. 7. The Burgans filed a declaratory action in state court on May 5, 2014 confirming their easement.

 

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