I N THE SUPREME COURT O F THE STATE OF MONTANA
STATE OF MONTANA, e x r e l .
MIKE GREELY, A t t o r n e y G e n e r a l ,
Relator,
WATER COURT OF THE STATE OF
MONTANA, and t h e H o n o r a b l e W. W .
L e s s l e y , Chief Water Judge, e t a l . ,
Respondents.
F
PER CURIAM:
On December 1 8 , 1 9 8 5 , t h i s C o u r t e n t e r e d i t s O p i n i o n i n
t h i s cause. I t h a s s i n c e been d i s c o v e r e d t h a t t w o c l e r i c a l
errors a p p e a r t h e r e i n .
I T I S HEREBY ORDERED t h a t t h e O p i n i o n o f t h i s C o u r t i n
t h i s c a u s e d a t e d December 18, 1984, i s amended a.s f o l l o w s :
On p a g e 4 , l i n e 2, the c i t a t i o n to "§ 83-2-701, MCA" is
d e l e t e d a n d " 5 85-2-701, MCA" i s s u b s t i t u t e d t h e r e f o r .
On p a g e 17, second paragraph under s u b s e c t i o n (5) , t h e
c i t a t i o n "S 85-2-803 ( 3 ) , MCA" i s d e l e t e d a n d "S 85-2-702 ( 3 1 ,
MCA" i s s u b s t i t u t e d t h e r e f o r .
The Clerk i s d i r e c t e d t o m a i l a t r u e copy h e r e o f to
counsel of record f o r a l l pa.rties.
DATED t h i s /./ gday of J a n u a r y , 1985.
I N THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA, e x r e l . ,
MIKE GREELY, A t t o r n e y G e n e r a l ,
Petitioner,
VS.
WATER COURT OF THE STATE OF MONTANA,
a n d t h e H O N . W. W . LESSLEY, C h i e f W a t e r J u d g e , e t al.,
Respondents.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Petitioner:
Hon. Mike G r e e l y argued, Attorney General, Helena,
Montana
C h r i s Tweeten argued, A s s i s t a n t Attorney G e n e r a l ,
H e l e n a , , Montana
For Respondents :
S a r a h A r n o t t a r g u e d , Bozeman, Montana
Hon. W . W . L e s s l e y , C h i e f W a t e r J u d g e , Bozeman, M o n t a n a
Hon. B . W . T h o m a s , D i s t r i c t J u d g e , C h i n o o k , M o n t a n a
Hon. R o b e r t M . H o l t e r , D i s t r i c t J u d g e , L i b b y , M o n t a n a
H o n . Roy C . R o d e g h i e r o , D i s t r i c t J u d g e , R o u n d u p , M o n t a n a
F o r Amicus C u r i a e :
James H. Goetz argued, S a l i s h and Kootenai T r i b e s ,
Bozeman, Montana
B l a k e W a t s o n a r g u e d , U.S. D e p t . o f J u s t i c e s f o r F e d .
Agencies, Washington, D. C.
D a n i e l F . Decker, P a b l o , Montana
Jeanne S. Whitening, Boulder, Colorado
Robert S. Pelsyger, Boulder, Colorado
F r a n c e s Lame B u l l , B i l l i n g s , M o n t a n a
Edward L. M e r e d i t h , B i l l i n g s , Montana
J o s e p h R . Membrino, Washington, D . C .
J o s e p h J . McKay, B r o w n i n g , M o n t a n a
Reid Peyton, Washington, D. C.
P h i l i p E. Roy, B r o w n i n g , Montana
T h o m a s E. L u e b b e n , A l b u q u e r q u e , New M e x i c o
A l l e n E . R o w l a n d , Lame D e e r , M o n t a n a
Norman H o l l o w , P o p l a r , M o n t a n a
AMICUS CURIAE CONTINUED:
D o n a l d S t e w a r t , Crow A g e n c y , M o n t a n a
J o s e p h F e l s m a n , P a b l o , Montana
E a r l Old P e r s o n , Browning, Montana
F r a n k l i n R. P e r e z , Harlem, Montana
J o h n Windy B o y , B e l c o u r t , N o r t h D a k o t a
William H. Veeder, Washington, D. C.
submitted: October 2 6 , 1 9 8 4
~ ~ ~ i December: 1 8 , 1 9 8 4
d ~ d
Filed: . . , td$4
L V
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The Attorney General for the State of Montana, pursuant
to Rule 17, M.R.App.Civ.P., has petitioned this Court for an
exercise of its supervisory power over the Water Court of the
State of Elontana and the judges of that court, in their
conduct of the litigation commenced in this Court pursuant to
section 85-2-211, MCA, under cause no. 14833. The questions
as presented in that application were:
1. Notwithstanding the so-called "disclaimer clause"
in Article I of the Montana Constitution, does the Montana
Water Court have jurisdiction, as a matter of state law, to
adjudicate federal reserved water rights held by the United
States in trust for Indians and Indian tribes in the State of
Montana?
2. Is the water adjudication process provided in the
Montana Water Use Act, Title 85, Chapter 2, MCA, legally
adequate to adjudicate federal reserved water rights held by
the United States in trust for Indians and Indian tribes in
the State of Montana?
The Attorney General requested an ex parte opportunity
to present oral argument on our acceptance of original juris-
diction. Such oral argument was presented before this Court
by the Attorney General and by the attorney for the Confeder-
ated Salish and Kootenai Tribes, who requested leave to
intervene as amicus curiae. This Court then ordered a brief-
ing schedule granting to the respondent Water Court time in
which to fi1.e a brief. Each and every Indian tribe in the
State of Elontana, the United States Attorney General, the
United States Attorney for Montana, and the United States
Department of Justice were also invited to file briefs as
amici curiae. The Attorney General was directed to serve a
true copy of his petition, the brief in s~~pport
thereof, and
a copy of the Court's Order on the United States Attorney
General, the United States Attorney for Montana, the United
States Department of Justice, and all Indian tribes in Mon-
tana. On October 29, 1984, the matter was orally argued
before this Court sitting en banc.
We have concluded that this Court will accept jurisdic-
tion of the petition for writ of supervisory control of the
Water Court.
Is this Court barred from taking jurisdiction by §
85-2-217, MCA, which provides that all proceedings to gener-
ally adjudicate reserved Indian water rights and federal
reserved water rights are suspended while the tribes are
negotiating?
In 1973, the Montana legislature passed the Water Use
Act to administer, control and regulate all water rights
within the State of Montana and to establish a system of
centralized records of all such rights. Section 85-2-101(2),
MCA. The Act declared all waters within the state to be the
property of the state and subject to appropriation for bene-
ficial uses. Section 85-2-101 (I), MCA. The Act defined
state policy regarding Montana's water resources as follows:
"It is the policy of this state and a purpose of
this chapter to encourage the wise use of the
state's water resources by making them available
for appropriation consistent with this chapter and.
to provide for the wise utilization, development,
and conservation of the waters of the state for the
maximum benefit of its people with the least possi-
ble degradation of the natural aquatic ecosystems.
... " Section 85-2-101 (3), MCA.
In 1979, the Water Use Act wa.s amended to specify that
federal and Indian reserved water rights are included in the
proceedings for the general adjudication of existing water
rights, either as claims or by compact. The general intent
of the legislature regarding Indian reserved water rights is
set forth in § 83-2-701, MCA:
"Legislative Intent. Because the water and water
riqhts within each water division are interrelated.
it- is the intent of the legislature to conduct
unified proceedings for the general adjudication of
existing water rights under the Montana Water Use
Act. Therefore, it is the intent of the legisla-
ture that the attorney general's petition required
in 85-2-211 include all claimants of reserved
Indian water rights as necessary and indispensable
parties under authority granted the state by 43
U.S.C. 666. However, it is further intended that
the state of Montana proceed under the provisions
of this part in an effort to conclude compacts for
the equitable division and apportionment of waters
between the state and its people and the several
Indian tribes claiming reserved water rights within
the state."
At the same time tha.t Part 7 (Indian and Federal Water
Rights) was added to Title 85, Chapter 2, the Act was also
amended to direct the Attorney General to begin the statewide
proceedings as follows:
"Petition attorney general. Within 20 days
after May 11, 1979, the state of Montana upon
relation of the attorney general shall petition the
Montana supreme court to require all persons claim-
ing a right within a water division to file a claim
of the right as provided in 85-2-221." Section
85-2-211, MCA.
Pursuant to this section, the Attorney General petitioned
this Court in cause no. 14833. The petition sought an order
directed to all claimants of water rights, includ-ing Indian
reserved water rights ( S 85-2-701, MCk) and this Court issued
such an order (§ 85-2-212, MCA) in 1979. That Order required
every person, including but not limited to an individual,
partnership, association, public or private corporation, city
or other municipality, county, state agency of the state of
Montana and federal agency of the United States of America on
its own behalf or as trustee for any Indian or Indian tribe,
to file a statement of claim to an existing right arising
prior to July 1, 1973.
Negotiations between the Montana Reserved Water Rights
Corn-pact Commission and several tribes were also commenced in
1979. See s§ 2-15-212, 85-2-701 & -702. We are advised that
such negotiations are currently continuing between the Com-
pact Commission and all but one Montana Indian tribe. Be-
cause such negotiations are now in progress, the question has
been raised whether this Court ' s assumption of original
jurisdiction violates the wording or intent of S 85-2-217,
MCA, which provides:
"While negotiations for the conclusion of a compact
under part 7 are being pursued, all proceedings to
generally adjudicate reserved Indian water rights
and federal reserved water rights of those tribes
and federal agencies which are negotiating are
suspended. The obligation to file water rights
claims for those reserved rights is also suspended.
This suspension shall be effective until July 1,
1985, as long as negotiations are continuing or
ratification of a completed compact is being
sought. If approval by the state legislature and
tribes or federal agencies has not been accom-
plished by July 1, 1985, this suspension shall
terminate on that date. Upon termination of the
supervision of this part, the tribes and the feder-
al agencies shall be subject to the special filing
requirements of 85-2-702 (3) and all other require-
ments of the state water adjudication system pro-
vided for in Title 85, Chapter 2. Those tribes and
federal agencies that choose not to negotiate their
reserved water rights shall be subject to the full
operation of the state adjud.ication system and may
not benefit from the suspension provisions of this
section. I'
Is the present request for supervisory control prohibit-
ed as a proceeding to generally adjudicate reserved Indian
water rights? While not all members of this Court so agree,
we conclude that this proceeding does not fall within the
prohibitions of 5 85-2-217, MCA.
The underlying action is cause no. 14833, an action for
the adjudication of all existing water rights which was
commenced in 1979 with the issuance of this Court's order.
See ~85-2-214
(I), MCA. The petition before us now requests
that we exercise our powers of supervisory control over the
Water Court, which administers the Water Use Act. Our
supervisory control is directed toward that existing action
and does -
not constitute a proceeding, "to generally
adjudicate reserved Indian water rights." Section 85-2-217,
KCA clearly prohibits such a proceeding while compact
negotiations or ratification is continuing. This proceeding
wi.11 not generally adjud.icateany Indian reserved water right
or any federal reserved water right, either as a whole or in
part.
The petition for supervisory control asks this Court to
define the scope of the State's jurisdiction over Indian
reserved water rights and presents the pre1imina.r~question
of whether the Wa.ter Court - conduct unified proceedings
can
for the general adjudication of all existing water rights in
Montana in the absence of a compact negotiation suspension.
The issues before us are limited to a determination of the
effect of our constitutional disclaimer on subject matter
jurisdiction by the Water Court and whether the Water Use Act
is adequate to adjudicate 1ndia.n reserved water rights.
These questions should be determined before any further steps
are taken to generally adjudicate Indian reserved rights.
We hold that the suspension provision of S- 85-2-217, MCA
does not prohibit our taking jurisdiction in this cause.
What is the basis for this Court's assuming original
jurisdiction of this petition for supervisory control?
In two recent cases, we have discussed at some length
the reasons for our exercise of original jurisdiction.
Grossman v. State, Dept. of Natural Resources (Mont. 1984) ,
682 P.2d 1319, 41 St.Rep. 804 (declaratory judgment proceed-
ing) ; Montana Power Company v. Public Service Commission
(Mont. 1984), P.2d , 41 St.Rep. 1601 (request for
supervisory control).
While Grossman is a declaratory judgment proceeding and
the present proceeding is for supervisory control, the fac-
tors considered in taking of original jurisdiction are rele-
vant and worthy of discussion here:
1. Grossman was recognized as a test case designed to
obtain a final judgment on the constitutional. validity of
coal severance tax revenue bonds. In a compara.ble manner,
the present application is designed to obtain a final judg-
ment on the constitutional validity of the Water Use Act in
view of the disclaimer clause contained in Art. I, Mont.
Const. 1972. Both are legal questions presented for the
first time in the proceedings before this Court.
2. Grossman sought this Court's interpretation of pure
legal questions of statutory and constitutional construction.
In a similar manner, the present petition seeks answers to
pure legal questions of both constitutional and statutory
construction of the disclaimer clause contained in Art. I,
Mont. Const. and the Water Use Act in relation to Indian
water rights.
3. In Grossman we concluded that urgency and emergency
factors argued for acceptance of origin.al jurisdiction.
These factors included the inability of the state to issue
proposed coal severance tax bonds until the issues raised
were resolved by this Court. In a similar manner, until the
issues here presented are resolved, the Water Court is unable
to proceed with the general adjudication of water rights in
Montana, including the water rights held by any Indian tribe
or by the United Sta.tes in any of its capacities. The Water
Court is organized and prepared to proceed with the adjudica-
tion process. That process requires preliminary decrees,
hearings, proof, argument, and ultimately final decrees.
Since there are thousands of water right cl-aimants in
Montana, it would be singularly inappropriate to wait until
that entire process is completed and until an appeal of a
final decree is made to this Court, before this Court ad-
dresses the threshold issues that are presented in the peti-
tion for supervisory control. These issues have been
reserved by the federal courts for state court determination.
See Arizona v. San Carlos Apache Tribe (1983), U.S.
, 103 S.Ct. 3201, 77 L.Ed.2d 837, 852; Northern Cheyenne
Tribe v. Adsit (9th Cir. 1983), 721 F.2d 1187, 1188. If we
wait until the appeal of final decrees, a great deal of time
and expense could be wasted. These factors of time and cost
demonstrate an urgency for prompt determination by this
Court.
4. In Grossman, we reasoned that it was appropriate to
accept jurisdiction in order that legislative correction
could be made in the Bond Act should that be necessary.
Similarly if the Water Use Act is not adequate to protect and
adjudicate Indian reserved water rights, held by Indian
tribes pursuant to treaties or executive order, then it is
important to reach that determination at an early date in
order to allow the legislature an opportunity to correct the
Act.
In considering these factors, a brief review of the
history of water rights litigation in Montana is appropriate.
Montana's Water Use Act was enacted in 1973; however, state-
wide adjudicatory proceedings did not commence until after
the Act was amended in 1979. Prior to that time, the North-
ern Cheyenne Tribe had brought an action in the United States
District Court in Montana in January 1975 seeking an adjudi-
cation of its rights in certain Montana streams. Shortly
thereafter, the United States brought two suits in the same
court, seeking a determination of the water rights on its own
behalf and of a number of Indian tribes, including the North-
ern Cheyenne. The Northern Cheyenne's action was consolidat-
ed with one of the Government's actions. Other concerned
tribes intervened. Each of the federal actions was a. general
adjudication which sought to determine the rights inter sese
of all users of the streams at issue.
While this activity was taking place in the federal
forum, the State of Montana was proceeding under the Water
Use Act, as originally enacted. In July 1975, the Montana
Department of Natural Resources and Conservation filed peti-
tions in state court commencing comprehensive proceedings to
adjudicate water rights in the same streams at issue in the
federal cases.
The federal actions were stayed in Montana pending the
United States Supreme Court's decision in Colorado River
Conservation District v. United States (1976), 424 U.S. 800,
96 S.Ct. 1236, 47 L.Ed.2d 483. That case held that (1) the
McCarran Amendment (43 U.S.C. 5 666), which waived the sover-
eign immunity of the United States as to comprehensive state
water rights adjudications, provides state courts with juris-
diction to adjudicate Indian water rights he1.d in trust by
the United States, and (2) in light of the clear federal
policies underlying the McCarran Amendment, a water rights
suit brought by the United States in federal court was prop-
erly dismissed in favor of a concurrent comprehensive adjudi-
cation reaching the same issues in Colorado state court.
When the Colorado River decision came down, the State of
Montana filed a motion to dismiss the federal suits. Al-
though the motion was argued in 1976, it was not decided
until 1979.
In April 1979, the United States filed four more suits
federal court seeking adjudicate its rights the
rights of various Indian tribes in other P-lontana streams. In
November 1979, federal Judges Battin and Hatfield consolidat-
ed the cases pending before various divisions of the United
States District Court and dismissed each of the federal
actions. Northern Cheyenne Tribe v. Tongue River Water Users
(D.C. Mont. 1979), 484 F.Supp. 31.
In the meantime, the Montana Supreme Court extended the
deadline for filing claims of existing water rights under the
Water Use Act from January 1, 1982, to April 30, 1982. See,
In re Water Rights Order (1979), 36 St.Rep. 1228; Supreme
Court Order 14833 (Dec. 7, 1981). The legislature had treat-
ed the Montana Reserved Water Rights Compact Commission by
that time as well. Section 2-15-212, MCA (1979).
On appeal, the Ninth Circuit Court of Appeals reversed
the district courts' dismissal of the federal cases. North-
ern Cheyenne Tribe v. Adsit (9th Cir. 1982), 668 F.2d 1080.
The Court of Appeals held that (1) FJhen a state has chosen to
disclaim subject matter jurisdiction over Indian lands, as
Montana did in Art. I, Mont. Const. 1972, state court juris-
diction to adjudicate Indian water rights is lacking absent 3.
valid repeal of the disclaimer; and (2) the United States
Supreme Court's decision in Colorado River, 424 U.S. 800, was
not applicable to the Montana litigation because of Colorado
River's "limited factual circumstance," the infancy of both
federal and state proceedings in Montana, the possible inade-
quacy of the state proceedings, and the fact that the Indians
might not be adequately represented by the United States in
state court in light of conflicts of interest between the
Federal Government's responsibilities as trustee and its own
claims to water.
In turn, that decision was appealed to the United States
Supreme Court, which reversed the Ninth Circuit Court of
Appeals. Arizona v. San Carlos ~ppache~ r i b e (1983)~
U.S. , 103 S.Ct. 3201, 77 L.Ed.2d 837. The United States
Supreme Court stated:
"[Tlo the extent that a claimed bar to state juris-
diction in these cases is premised on the respec-
tive state Constitutions, that is a question of
state law over which the state courts have binding
authority. Because in each of these cases, the
state courts have taken jurisdiction over the
Indian water rights at issue here, we must assume,
until informed otherwise, that at least insofar as
state law is concerned such jurisdiction exists."
San Carlos, 77 L.Ed.2d at 852.
" [I]f the state proceedings have jurisdiction over
the Indian water rights at issue here, as appears
to be the case, then concurrent federal proceedings
are likely to be duplicative and wasteful, generat-
ing 'additional litigation through permitting
inconsistent dispositions of property' Colorado
River, 424 U.S. at 819. Moreover, since a judgment
by either court will ordinarily be res judicata in
the other, the existence of such concurrent pro-
ceedings creates the serious potential for spawning
an unseemly and destructive race to see which forum
can resolve the same issues first - a race contrary
to the entire spirit of the McCarran Amendment and
prejudicial, to say the least, to the possibility
of reasoned decision making by either forum. . . ."
77 L.Ed.2d at 856.
". . . In the cases before us, assuming that the
state adjudications are adequate to quantify the
rights at issue in the federal suits, and taking
into account the McCarran Amendment policies we
have just discussed, the expertise and administra-
tive machinery available to the state courts, the
infancy of the federal suits, the general judicial
bias against piecemeal litigation, and the conve-
nience to the parties, we must conclude that the
District Courts were correct in deferring to the
state proceedings. . . ."
77 L.Ed.2d at 858.
Addressing the propriety of deciding Indian reserved water
rights in a state court proceeding, the United States Supreme
Court stated:
"We also emphasize, as we did in Colorado River,
that our decision in no way changes the substantive
Law by which Indian rights7in state water adjudica-
tions must be judged. State courts, as much as
federal courts, have a solemn obligation to follow
federal law. Moreover, any state court decision
alleged to abridge Indian water rights protected by
federal law can expect to receive, if brought for
review before this Court, a particularized and
exacting scrutiny commensurate with the powerful
federal interest in safeguarding those rights from
state encroachment." 77 L.Ed.2d at 859.
On remand, the Ninth Circuit Court ultimately stayed all
proceedings in the federal actions in Montana pending the
outcome of state court proceedings. Northern Cheyenne Tribe
v. Adsit (9th Cir. 1983), 721 F.2d 1.187. The Court reserved
two questions for state court determination.: (1) the ques-
tion of jurisdiction under state law, and (2) the question of
the adequacy of the particular state proceeding to adjudicate
the reserved water rights. Adsit, 721 F.2d at 1188. These
were the same two questions which the Supreme Court Left open
for consideration on remand in San Carlos, 77 L.Ed.2d at 858,
n. 20.
The Attorney General states in his Memorandum Supporting
the Application for Supervisory Control that the "Supreme
Court's decision in San Carlos was the culmination of a
nine-year battle by Montana authorities to secure a state
court forum for litigation of the critical water law issues
which face the people of this state." If a state constitu-
tional impediment exists or the Water Use Act is not adequate
to adjudicate those rights which were reserved by treaty and
federal law, then it would be a waste of time and expense
for water claimants and the court system to allow state
proceedings to culminate in appealable final decrees over the
next several years before this Court considers the fundamen-
tal questions set forth in the State's petition. In the
interest of protecting the water rights of all claimants,
including Indian reserved water right claimants, it is essen-
tial that, upon expiration of the R.eserved Water Rights
Compact Commission's negotiation deadline, statewide proceed-
ings go forward without unreasonable delay. These factors
clearly indicate the type of an urgency or emergency which
requires that this Court take jurisdiction.
In Montana Power, 41 St.Kep. 1601, we considered similar
issues in reaching a conclusion that supervisory control
would be accepted. There we emphasized that a factor to be
considered i.s the statewide importance of the decision with
its profound and far-reaching effects. In a similar manner,
we conclude that the prompt determination of these fundamen-
tal questions with regard to P40ntana1s water adjudication
proceedings have profound and far-reaching effects on all of
the water rights in the state of Montana. As in
Montana Power, we conclude that the resolution of the issues
in this cause will have a profound effect on the people of
the State of Montana, that delay will result in irreparable
harm, and that assumption of original jurisdiction now will
promote judicial economy.
Based on all of these factors, we conclude that our
taking jurisdiction is appropriate and in the best interests
of all water right claimants within the State of Montana.
111.
Several of the Indian tribes have argued that the Attor-
ney General and the Water Court are not adverse parties and
that as a result a live controversy does not exist. We
recognize the need for a realignment of parties so that
opposing views on the substantive issues may be properly
presented. We also recognize that under San Carlos, 77
L.Ed.2d at 856, n. 17, we could have granted the tribes leave
to intervene as parties in this proceeding; however, because
of the exigency of time in this original proceeding, we have
concluded that it is not advisable to follow that route.
While we are naming the tribes as respondents, we also grant
them an opportunity to request dismissal.
We now designate the parties as follows:
STATE OF MONTANA, ex rel.
MIKE GREELEY, Attorney General,
WATER COURT OF THE STATE OF
MONTANA and THE JUDGES OF THAT
COURT,
Petitioners,
THE UNITED STATES OF AMERICA,
Individually and as Trustee for
each of the hereinafter named Indian
Tribes, and THE BLACKFEET NATION, THE CROW
TRIBE, THE CONFEDERATED SALISH AND
KOOTENAI TRIBES OF THE FLATHEAD RESERVATION,
THE GROS VENTRE AND ASSINIBOINE TRIBES OF
THE FORT BELKNAP AND FORT PECK RESERVATIONS,
THE NORTHERN CHEYENNE OF THE NORTHERN CHEYENNE
INDIAN RESERVATION, and THE CHIPPEWA-CREE
INDIANS OF THE ROCKY BOY'S RESERVATION, and
the TURTLE MOUNTAIN CHIPPEWA TRIBE, a North
Dakota Tribe with allotments to land in the
State of Montana,
Respondents.
IV.
Following are the issues which we desire that the pa.r-
ties brief and argue in this proceeding:
1. Is the Water Court of Montana prohibited from exer-
cising jurisdiction over Indian reserved water rights based
on Article I of the 1972 Montana Constitution or otherwise?
2. Is the Montana Water Use Act, Title 85, Chapter 2,
EICA, adequate to adjudicate Indian reserved water rights?
3. Is the Water IJse Act, Title 85, Chapter 2, MCA,
adequate to adjudicate federal reserved water rights held, on
its own behalf, by the United States or any of its agencies?
In view of the absence of any lower court record con-
taining proof and contentions of the parties and in view of
the limited time allowed for briefing, we set forth some of
the contentions which have been made with regard to the Water
Use Act. In doing so, we are not in any way expressing an
opinion on the merits of these contentions. In addition, we
are not in any way limiting the contentions which may be made
by any party.
(1) Beneficial Use
State law defines beneficial. use, specifies that a
statement of the purpose of the use shall be included in each
claim, a.~drequires each final decree to state the purpose
for which the water included in the right is used. Sections
85-2-102 (2), 85-2-224 (1) (e) and 85-2-234 (4) (d), MCA. Section
85-2-404, MCA provides that an appropriation right may be
abandoned based in part upon non-use.
Federal cases indicate that a present consumptive use is
not required to maintain an Indian reserved water right.
Under the Winters Doctrine (Winters v. United States (1908),
207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340), the United States
Supreme Court has repeatedly concluded that water may be
reserved by implication, where "water is necessary to fulfill
the very purposes for which a federal reservation was treat-
ed." United State v. New Mexico (1978), 438 U.S. 696, 702,
98 S.Ct. 3012, 3014, 57 L.Ed.?d 1052. United States v. Adair
(9th Cir. 1984), 723 F.2d 1394, 1416, states that the full
measure of such a reserved right need not be exercised imme-
diately. Arizona v. California (1963), 373 U.S. 546, 600, 83
S.Ct. 1468, 1498, 10 L.Ed.2d 542, in substance held that the
water right reserved in connection with that Indian reserva-
tion was sufficient. water to "irrigate all the practicably
irrigable acreage on the reservation."
The contention has been made that the Water Use Act does
not sufficiently describe these differences in water rights
reserved for a federal or tribal purpose and Montana appro-
priation rights for a beneficial use.
(2) Diversion
The Water Use Act requires that the place and means of
diversion be specified in the final decree. Section
85-2-234 (4)( g ) , MCA.
Diversion of water is not required in order to have a
valid Indian reserved water right. The Ninth Circuit Court
has held that the right to water reserved by treaty to fur-
ther a tribe's hunting and fishing purposes is basically
non-consumptive and does not entitle the tribe to divert
water from the natural course of the stream for other purpos-
es. " [Tlhe entitlement consists of the right to prevent
other appropriators from depleting the stream's waters below
a protected level in any area where the non-consumptive
rights apply." Adair, 723 F.2d at 1411. See also Washington
v . Fishing Vessel Ass'n (1979), 443 U.S. 658, 686, 99 S.Ct.
3055, 3074-75, 61 L.Ed. 2d 823 ("moderate living" standard
applied to treaty fishing rights).
The contention is made that the Water IJse Act does not
adequately address these differences in appropriative and
reserved rights.
(3) Quantification
Final decrees under the Water Use Act shall state the
amount of water, rate and. volume included in each existing
right. Section 85-2-234 (4)(b), MCA. Under state law, the
quantity of water is dependent upon the beneficial use for
which it is claimed. Section 85-2-224 (1) (c), MCA.
In contrast under the Winters Doctrine and federal case
law, the measure of the amount of water reserved to the
Indian people is dependent upon the purposes for which the
reservation was created.
The contention is made that the Act does not sufficient-
ly address these differences in the method of quantification.
(4) Priority Date
The Water Use Act requires a statement of the date of
priority of the claimed water ri9h.t. Section 85-2-234 (4)(c),
MCA. The priority date is based upon "the approximate dates
of first putting water to beneficial use for the various
amounts and times" of claimed use. Section 85-2-224 (1)(c) &
(f), MCA.
As previously noted, under the Winters Doctrine, an
Indian reserved. water right generally has a priority date as
of the date on which the reservation was created. That date
may not in any way relate to the date the water was first put
to beneficial use. In addition, Adair in substance holds
that an aboriginal right is not created by treaty, but the
continued. existence of such a right may be confirmed by
treaty. Aboriginal water rights are stated to carry a prior-
ity date of time immemorial. Adair, 723 F.2d at 1414.
The contention is made that the Act does not sufficient-
ly address these differences in the method of determining
priority d.ates.
(5) Exclusive Method
The Water Use Act provides a system which is designated
as the exclusive method for the appropriation of water after
July 1, 1973. Section 85-2-301, MCA.
A question ha.s been raised as to the manner in which
Indian cla.ims for reserved water rights, which have not been
resolved by compact, should be treated in view of the provi-
sion that Indian claims "shall be given treatment similar to
that given to all other filings." Section 85-2-803(3), MCA.
VI.
In responding to these issues, none of the parties to
this proceeding waive any factually-based challenge to juris-
diction or to the adequacy of a determination of rights by
the water courts. Parties may choose to appeal the actual
quantification and adjudication of water rights by the Water
Court. This Court's determination in the present proceeding
will not constitute a ruling on any factual issue in such an
appeal.
In addition, this Court recognizes the contention of
several of the tribes that the United States, as trustee
acting in their behalf, cannot fulfil its fiduciary obliga-
tion to protect Indian reserved water rights in Montana
because of the Government's conflict of interest in asserting
other federal water rights, which conflict with and may
contradict the rights claimed by the Indian tribes. In
recognition of that contention, this Court has specifically
named the various Indian tribes as parties. This should
dispose of the question of inadequate representation by
giving the opportunity to the individual Indian tribes to
present their own points of view to this Court. In addition,
we will consider any contention presented to this Court with
regard to adequate representation of the tribes by the United
States, acting as trustee on their behalf.
This Court also recognizes that some or all- of the
tribes may contend that they should not be named as parties
to this lawsuit based on their sovereign immunity. Should
any tribe prefer dismissal on those grounds rather than
appearing before this Court, a motion for dismissal should be
made to this Court.
VII.
This is the schedule to be followed in this proceeding:
1. Within thirty days of the date of this opinion, all
petitioners shall prepare, file and serve briefs on each of
the named respondents.
2. Within sixty days of the date of this opinion all
respondents desiring to do so shall prepare, file and serve
their answering briefs on each of the named petitioners.
3. Within seventy-five days of the date of this
opinion, the petitioners will prepare, file and serve their
reply briefs.
4. This Court will set the matter for oral argument by
a separate order.
VIII.
In taking jurisdiction of this petition, this Court does
not desire to adversely affect negotiations between the
Indian tribes and the Water Rights Compact Commission.
Nothing in this Opinion shall be construed to affect or
supersede the suspension of proceedings contained in §
85-2-217, MCA, relating to reserved Indian water rights and
federal reserved water rights during the negotiation period
provided therein or during any legislative extension of such
period.
We concur:
Chief Justice
h
--
Justices
Mr. Justice John C. Sheehy, specially concurring:
I concur in the acceptance of jurisdiction herein for
all of the reasons expressed by Justice Weber.
In addition, I would hold now that under Colorado River
Conservation District, supra, the Water Court of our state
has jurisd-iction irrespective of the provisions of our state
constitution. I am also now of the opinion that our present
Water Use Act is inadequate to adjudicate reserved Indian
water rights, whether by treaty or aboriginal origination,
for the reasons stated in the maiority opinion. I also feel-
that the appropriation doctrine may be inadequate to
adjudicate other federal reserved rights.
I am expressing my opinions early to flag the
legislature that if it desires to have an effective
a.djudica.tory process to determine finally water rights in
Montana., it must take action in t.hj_slegislative session of
1985 to make curative amendments to the Water Use Act.
Failure to act in this session would, in my opinion, mean a
loss of jurisdiction to the State Water Court for such period
of time as the legislature took it upon itself to act. No
more important project faces the legislature or this state.
Mr. Chief Justice Frank I. Haswell, dissenting:
I dissent from this Court's acceptance of original.
jurisdiction via extraordinary writ at this time. 1 consider
this action premature until such time as Compact negotiations
are concluded.
While the Court's intervention at this time may not
violate the letter of the law, it violates the spirit of
Montana's public policy to make "an effort to conclude com-
pacts for the equitable division and apportionment of waters
between the state and its people and the several Indian
tribes claiming reserved water rights within the state"
( 5 85-2-701, MCA) and the federal government claiming
non-Indian reserved water rights within this state
(s 85-2-703, BICA). The litigation spawned by the majority
opinion is inimical to successful compact negotiations de-
spite protestations to the contrary by the majority. The
inherent coercive effect of contemporaneous litigation on the
negotiating posture of the parties in Compact negotiations
cannot be ignored.
"b~& 4,
Chief Justrce
Mr. Justice L. C. Gulbrandson:
I concur in the foregoing dissent of Mr. Chief Justice
Ilaswell . /
Mr. Justice Frank B. Morrison, Jr., dissenting.
I respectfully dissent for the reason that, in my opin-
ion, this Court does not have jurisdiction.
Section 85-2-217, MCA, suspends "all proceedings to
generally adjudicate reserved Indian water rights and federal
reserved water rights of those tribes and federal agencies
which are negotiating. . ." This statute, if applicable,
suspends proceedings until July 1, 1985. The majority as-
sumes jurisdiction here by holding that the provisions of
this statute do not apply to this "supervisory control"
proceeding. I disagree.
The majority opinion of this Court joins the United
States as a party defendant. This is done pursuant to the
McCarran Amendment, 43 U.S.C. § 666. That Amendment
provides :
"(a) Consent is given to join the United States as
a defendant in any suit (1) for the adjudication of
rights to the use of water . . ."
The only way in personam jurisdiction could have been
acquired over the United States is pursuant to the above
provision of the McCarran Amendment. By asserting jurisdic-
tion over the United States, the majority has conceded that
this is a proceeding to adjudicate the rights to the use of
water. In so doing, this Court has specifically violated the
provisions of § 85-2-217, MCA.
Furthermore, this is a supervisory control action, not a
declaratory judgment action. In asserting supervisory con-
trol over the water court, we become part of that proceeding,
a proceeding to adjudicate water rights.
In 1981, 5 85-2-217, MCA., was amended to substitute the
word "proceedings" for the word "actions." This further
shows an intent on the part of the legislature to broaden the
suspension provisions of the statute. "The word 'proceeding'
a.pplies to any step to be taken in a cause which is author-
ized by law in order to enforce the rights of the parties or
effectuate the proper conduct of it while pending in court."
State ex rel. Bruce v. District Court of the Second Judicial
District (1905), 33 Mont. 359, 3 6 2 , 83 P. 6 4 1 , 642. The
amendment to the statute clearly embraces this petition for
supervisory control.
In addition to the foregoing, I concur with the comments
made by the Chief Justice in his dissent.