dissenting.
I concur in the majority’s starting premise that the Tribes possess a reserved water right which is unique and which has not yet been quantified. However, I must dissent from the majority’s conclusion that, under Montana statutes, this right of the Tribes requires a shutdown of the water permitting process in Montana.
Section 85-2-217, MCA, provides that adjudication of Indian reserved water rights and federal reserved water rights shall be suspended during negotiations for the conclusion of a water compact. That provision recognizes the critical importance of the compacting process in determining reserved water rights in Montana, and guarantees that adjudication will accommodate the compacting process. Unquestionably, the best solution to federal reserved water rights is through compact negotiations.
The grant of a water use permit is not an adjudication of water rights, however. Under § 85-2-313, MCA, the DNRC’s granting of a provisional water permit is not a final determination of water rights. Granting a water use permit under § 85-2-311, MCA, cannot deprive any Tribe of its prior rights, due to the provisional nature of the permits.
The majority opinion will result in a shutdown of not only water right adjudication, but also the preliminary decree process throughout the state, until the compacting process is completed. Counsel for the Tribes admitted as much at oral argument. Although the Tribes have argued that this decision applies only to the Flathead Indian *71Reservation, there is hardly a watershed in Montana which is not impacted by water rights of one or more of the seven Indian reservations located within the state’s boundaries. As the District Court noted, this result entirely defeats the purpose of the permit process, denying landowners after 1973 the right to any new water use or change of use until the adjudication process is completed.
The majority relies upon § 85-2-311(1), MCA, to reach its conclusion that DNRC does not have jurisdiction to issue new use permits prior to quantification of the Tribes’ reserved water rights by adjudication or compact negotiations. That statute provides, in relevant part:
[T]he department shall issue a permit if the applicant proves by a preponderance of evidence that the following criteria are met:
(a) there are unappropriated waters in the source of supply at the proposed point of diversion:
(b) the water rights of a prior appropriator will not be adversely affected;
(e) the proposed use will not interfere unreasonably with other planned uses or developments for which a permit has been issued or for which water has been reserved [.]
The majority concludes that subsection (l)(e) above requires proof that the proposed use will not interfere with Indian reserved water rights. Because Indian reserved water rights have not yet been quantified, the majority reasons, such proof is impossible.
DNRC has explained, however, that the language “other planned uses or developments for which a permit has been issued or for which water has been reserved” in subsection (l)(e) refers to § 85-2-316, MCA, “Reservation of waters.”
The state or any political subdivision or agency of the state or the United States or any agency of the United States may apply to the department to reserve waters for existing or future beneficial uses or to maintain a minimum flow, level, or quality of water throughout the year or at periods or for a length of time that the department designates.
Section 85-2-316(1), MCA. The statute goes onto provide an extensive description of the process and procedure for obtaining a reservation of water, including the basins in which water may be reserved, the procedure for processing applications and granting reservations, *72limitations on reservations, the priority of appropriation of a water reservation, and transfers of reservations.
The reference in § 85-2-311(l)(e), MCA, to “other planned uses or developments for which a permit has been issued or for which water has been reserved” relates logically and naturally to the extensive statutory scheme a few sections thereafter for reservation of waters. It relates considerably less logically or naturally to the reserved water rights of Indian tribes, in connection with which the language “for which a permit has been issued” simply makes no sense. I conclude that the subsection (l)(e) language upon which the Tribes rely for their argument of statutory noncompliance does not address Indian reserved water rights.
The majority opinion states that if § 85-2-311(l)(e), MCA, does not address Indian reserved water rights, then the statute ignores such rights in contravention of federal law and this Court’s opinion in Greely. There is nothing in the extremely limited factual record in this case to indicate that the proposed permit use by the applicants will interfere with Indian reserved water rights. If the statutory language lacks clarity as to the necessity for consideration of Indian reserved water rights in the permitting process, that concern should be addressed by statutory revision.
The Don Brown case out of the First Judicial District Court, discussed in Justice Nelson’s concurring opinion, does not control by res judicata or collateral estoppel because the statutes were amended after Don Brown was decided. A claim of existing right is no longer prima facie proof of its content for all purposes, but only for “purposes of adjudicating rights pursuant to this part.” Section 85-2-227, MCA. Section 85-2-311, MCA, additionally has been amended since Don Brown, to require that there must be unappropriated waters in the source of supply at the proposed point of diversion and during the period in which the applicant seeks to appropriate. In short, the ruling in Don Brown as to the effect of the prima facie statute on permit processing has been superseded by legislative amendment.
The jurisdictional question discussed in Justice Leaphart’s concurring opinion is not presently before this Court. The Tribes have reserved the federal questions for their action for declaratory and injunctive relief in the United States District Court for the State of Montana, Confederated Salish and Kootenai Tribes v. Simonich, No. CV-92-54-M-CCL.
The permit process was intended to provide for new water use prior to adjudication. Now we are left with no such process. This denies *73landowners after 1973 the right to any new water use or change of use until the adjudication process is completed. This result is not in harmony with the purposes of the Water Use Act to “coordinate the development and use of the water resources of the state so as to effect full utilization, conservation, and protection of its water resources” and to “promote the prosperity and welfare of the people of Montana through the sound management of the state’s water resources.” Sections 85-1-101(3) and -103, MCA. The result reached by the majority in this case certainly was not the intended purpose of the Water Use Act, and I do not believe it is a necessary result of the statutes here interpreted.
I therefore respectfully dissent.
JUSTICE ERDMANN: I concur in the dissent of Chief Justice Turnage.