No. 86-397
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MATTER OF THE ACTIVITIES OF THE
DEPARTMENT OF NATURAL RESOURCES AND CONSER-
VATION, THEIR BOARD OF DIRECTORS, LARRY
FASBENDER, DIRECTOR OF DNRC, AND GARY FRITZ,
ADMINISTRATOR, DEPARTMENT OF NATURAL RESOURCES
DIVISION, TO PLACE UNDER MAPA, THE EXAMINATION
PROCEDURES CONDUCTED PURSUANT TO SECTION
85-2-243, MCA.
APPEAL FROM: The Upper Missouri River Basin Water Division of
The State of Montana
COUNSEL OF RECORD:
For Appellant:
Donald D. MacIntyre argued, Dept. of Natural Resources,
Helena, Montana
G. Steven Brown argued, Helena, Montana
For Respondent:
Hon. W.W. Lessley argued, Chief Water Judge, Bozeman,
Montana
Hon. R.W. Thomas, Water Judge, Chinook, Montana
Ron. Robert M. Holter, Water Judge, Libby, Montana
Hon. Roy Rodeghiero, Water Judge, Roundup, Montana
Edward. Steinmetz argued, Water Master, Bozeman,
Montana
For Amicus Curiae:
K. Paul Stahl argued, Montana Power Co., Helena,
Montana
R. Blair Strong, Washington Water Power Co., Spokane,
Washington
Submitted: February 1 0 , 1987
Decided: March 31, 1987
--
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
We interpret and define in this case to the extent
raised by the issues the respective statutory authorities
granted by present law to the water courts, the chief water
judge and the water court judges of Montana, on the one hand,
and the Department of Natural Resources and Conservation
(DNRC) and the Board of Natural Resources and Conservation
(RNRC) on the other hand.
This cause is before us on appeal by the BNF-C and the
DNRC from two orders of the chief water judge restraining or
prohibiting the RNRC and the DNRC from adopting
administrative rules in the examination and determination of
water rights. We do not have before us the record from a
particular water right dispute as the underlying basis for
the appeal. The orders were issued by the chief water judge
upon his learning of the proposed or imminent adoption of
administrative rules by the RNRC.
The essence of the dispute here is whether the Montana
Admini.strative Procedures Act (MAPA) applies to activities
undertaken by the Department of Natural Resources when acting
under the direction of the water court pursuant to §
85-2-243, MCA.
On July 23, 1986, W. W. Lesslev, chief water judge of
the Montana Water Courts, with the concurrence and agreement
of the remaining water judges, Honorable Bernard W. Thomas,
Honorable Robert M. Holter, and Honorable Roy C. Rodeghiero
issued an order directed to the parties named in the caption
hereof, essentially the DNRC and the BNRC, that "all
activities of the DNRC under 5 85-2-243, MCA, shall not be
placed as an agency under MAPA"; and that in the alternative,
DNRC could comply with the order by proceeding to the
adoption of rules as may be agreed upon between the DNRC and
the water courts, without placing such rules under m P A .
The order of July 23, 1986 was accompanied by a
memorandum from the chief water judge setting forth the facts
and the legal basis for the court's decision to issue the
order.
On August 8, 1986, the chief water judge, again with the
concurrence and agreement of the remaining water judges,
issued a further order directed to the same parties, reciting
that apparently the DNRC was mailing out copies of proposed
examination instructions relating to water right claims
rules; that the DNRC should not take any further action to
seek public review and comment on proposed examination
instructions without the authorization of the Montana Water
Court; and that any future failure to comply with the July
23, 1986 order or the August 8, 1986 order would be contempt
of court.
It is from the aforesaid orders that the DNRC and the
BNRC have appealed to this Court.
We have received amicus briefs in this cause from
Washington Power Company, and Montana Power Company, each
supporting the position of the DNRC and the BNRC.
ISSUES
Although the two orders issued by the chief water judge
relate to activities of the DNRC under . 85-2-243, MCA, the
5
BNRC and the DNRC cast the issue more comprehensively. The
appellants state the issue to be whether the BNRC or the DNRC
must comply with the rule making provisions of the Montana
Administrative Procedure Act prior to implementing their
statutory responsibilities under Title 85, Chapter 2, Part 2,
MCA.
Montana Water Courts pose the issues to be decided as
follows:
1. Whether the DNRC has any independent statutory
authority to examine water right claims under the present
adjudication process.
2. Whether Montana Water Court's July 23, 1986 orders
prohibiting the BNRC, and DNRC from adopting the claimed
examination instructions a.s a-dministrative rules und.er MAPA
were proper.
SUMMARY OF THE ARGUMENTS OF DNRC-RNRC
The holding in Arizona v. San Carlos Apache Tribe
(1983), 463 U.S. 545, 103 S.Ct. 3201, 77 L.Ed.2d 837, ended
the competitive vying between federal authorities
representing the Indian tribes and the states representing
state water interests to get their cases filed first, in the
federal courthouses by the former and in the state
courthouses by the latter. In San Carlos Apache Tribe, the
United States Supreme Court would give deference to the more
comprehensive state processes and thus avoid the potential
for duplicative and wasteful litigation resulting in
inconsistent dispositions should federal and state water
rights proceedings both continue on parallel tracks. For
this reason the legislative thrust to expedite and facilitate
the adjudication of water rights of Montana no longer gets
its impetus from the need to win the race to the courthouse,
nor is there an immediate danger of imposed water allocation
among the Missouri Basin states.
DNRC (for the rest of this opinion we will use "DNRC"
for the combined arguments of DNRC and BNRC, unless otherwise
specified) contends, in a nutshell, the legislature mandated
an expeditious judication program not to encourage a
hastily-achieved. adjudication controlled exclusively by the
judiciary hut rather one that would be the least expensive,
least time consuming, and with the minimum involvement of
attorneys. The adjudication must go forward in a manner
compatible with the doctrine of separation of powers and with
due process rights fully protected.
The orders issued by Chief Water Judge Lessley are
improper in that there was no pending issue of adjudication
before the judge at the time the orders were issued, nor was
any hearing or opportunity for hearing granted to DNRC prior
to the issuance of the orders.
The legal issues raised in this appeal are
( 1 ) separation of powers issue raised by § 85-2-243 (1985),
MCA, and ( 2 ) the necessity of MAPA compliance by an
executive agency in the statutory construction of 85-2-243,
MCA.
Since DNRC is an executive agency with rule making power
lodged in BNRC, the function of DNRC under 85-2-243, MCA, is
to provide technical assistance and information to the water
judges. Therefore each element of each claim must be
analyzed by DNRC technical personnel, and report must be made
to the water court considering the technical accuracy and
consistency of each claim. MAPA guarantees to each citizen
the fundamental constitutional right to participate in their
government. The administrative code committee of the
legislature has determined that DNRC and ANRC should operate
under MAPA. MAPA fulfills the public's right to know.
The DNRC technical role is an executive agency action
for the purposes of MAPA, and the water court may not set the
parameters of an executive agency's investigation. The Water
Court's ability to "direct" the DNRC is limited to general
directions concerning the water court's judicial requirements
and procedures. The water court cannot set the policies and
procedures for examining claims, and also sit in judgment of
the validity of those policies and procedures because it
would then cease to be an impartial decision-maker. The DNRC
proposed water right claims rules are the result of
stipulation between the parties in Montana Department of
Fish, Wildlife, and Parks, et al. v. Water Court of the State
of Montana, Nos. 85-345, 85-468, and 85-493, pending in this
Court. Through the course of litigation, the water courts
have changed the standards and procedures used by them in
adjudicating water claims, and there is a necessity for
public review under MAPA of DNRC examination procedures
before they are applied to the elements of individual water
rights claims. The imposition of executive or administrative
duties on the court, if S 85-2-243, MCA, is interpreted that
way, violates the principle of separation of powers.
A due process problem exists because various Indian
tribes have raised the due process issue based on the
involvement of the DRNC in the adjudication process.
SUMPWRY OF ARGUMENTS OF THE WATER COURTS
The orders from the chief water judge of July 23 and
August 3, 1986, were justified and necessary because the DNRC
had made a decision to proceed under MAPA despite the clear
opposition by the water courts. The orders followed several
meetings between the DNRC director and its legal staff, on
the one hand, and members of the water court staff on the
other, as well as letters sent to the DNRC director
expressing opposition and stating reasons. The orders did
not issue until DNRC announced its decision to go ahead under
MAPA.
DNRC cannot cite clear legislative authority given to it
to adopt claims examination rules under MAPA because there is
no such authority. For six years, since the adoption of the
Water Courts Act, the DNRC has investigated claims without
seeking tc adopt MFPA rules. If MAPA rules were necessary,
all of the work done so far by the water courts would be open
to objection, a disastrous development.
The history of the water adjudication acts shows that
the legislature intended a limited function for the DNRC in
the adjudication, rather than an expansive one. In 1979, the
Water Adjudication Act was adopted after the legislature
showed dissatisfaction in the progress that was being made
under a former act when the DNPC was investigating all claims
but had not reached a single conclusion.
The legislature opted to place the adjudication of water
rights in a judicial system and for that purpose established
a statutory water claims procedure and a system for water
courts to adjudicate water claims.
Specifically, the legislature gave to the water courts
the authority to obtain supplementary information through
directions to the DNRC. There is no current statutory
language which carries over the DNRC's independent
investigation authority which it enjoyed prior to 1979.
The provisions of the statutes authorizing the water
courts to obtain the information and assistance of the DNRC
are constitutional. They do not offend the principle of
separation of powers. It is well recognized that legislative
or administrative authority which is merely incidental to the
exercise of the judicial function does not offend separation
of powers.
The due process violations claimed by the DNRC are
unfounded. While the water courts direct the DNRC as to the
necessity and scope of the examination process, the water
courts in no way influence what the DNRC will find or how it
analyzes the facts. Since no particular factual situation
demonstrating a due process denial is being alleged here, the
DNRC is clearly challenging S 85-2-243, MCA, on its face.
The combination of judging and the direction for
investigation vested in a judicial tribunal when used as a
function of the judicial process has been upheld in the
courts.
HISTORY OF THE WATER ADJUDICATION PROCESS
The constitutional convention in 1972 adopted what
became Art. IX, § 3 of the 1972 Mont. Const., in part as
fallows:
All existing rights to the use of any waters for
any useful or beneficial purpose are hereby
recognized or confirmed.
(4) The legislature shall provide for the
administration, control, and regulation of water
rights, and shall establish a system of centralized
records, in addition t.o the present system of local
records.
In response to this constitutional mandate, the
legislature in 1973 substantially overhauled our statutes
relating to water rights. The legislature imposed upon the
DNRC, under former S 89-870, R.C.M. (19471, the duty to
determine existing rights. The statute said:
(1) The department shall establish a centralized
record system of all existing rights, and the
department, shall, as soon as practicable, begin
proceedings under this act to determine existing
rights. To accomplish this, the department shall
gather data essential to the proper understanding
and determination of those existing rights.
(2) The departqnent may select and specify areas or
sources where a need for determination of existing
rights is most urgent, and first begin proceedings
under this act to determine the existing rights in
those areas or sources.
Section 6, Ch. 452, Laws of Montana (1953).
The power of the DNRC to gather data under the 1973
enactment included the use of court decrees, declarations of
existing rights, groundwater records, notice of
appropriations, findings of water resource surveys earlier
conducted, and "the findings of inspections, surveys,
reconnaissance, and investigations of the area or source
involved as the department makes." Section 89-871, R.C.M.
(1947).
The District Courts were to be utilized by the DNRC for
the determination of existing rights, commenced by the DNRC
filing in the District Court, a request for such a
determination. The request on petition was to be filed
within a reasonable time after the DNRC had gathered all
necessary data as aforesaid ( 5 89-874, R.C.M. (1947)) and
that section also provided that if the District Court
determined that additional data was necessary prior to a
preliminary decree in order to determine the extent of an
existing right, the District Court could direct the
department or the person claiming the right. to obtain the
necessary data. ( § 89-874 (3), R - C - M -(1947)
Thereafter, when presumably the District Court had
before it all of the necessary data, the District Court would
issue a preliminary decree with respect to the area or
source, which would eventually ripen into a final decree.
The determination under the 1973 laws proceeded slowly.
Albert Stone, Professor of Water Law at the University of
Montana, observed:
... by 1979, 6 years after its beginning, the
ad-judication of the Powder River Basin was in its
initial stages. One of the difficulties with the
1973 adjudication provisions was that
representatives for the Department of Natural
Resources were required to go into the field, walk
the old ditches and laterals, and physically
discover all of the unrecorded, unasserted, and
unknown water rights. So the legislature became
restless over the evident prospect of a century or
more which b~ould be needed to adjudicate the water
rights for the entire state. It sought procedures
needed for the improvement and acceleration of the
process.
Stone, Montana Water - - - 19801s, Univ. of Montana
Law for the
(1981).
In 1979, the legislature revamped its process for
adjudication of water rights. It repealed former sections
89-870,-879, R.C.M. (1947), including the statutes granting
the powers above described to the DNRC.
In 1979, the legislature established a system of water
courts, providing for water divisions, water judges, water
masters, disqualification of judges and masters, and
jurisd.iction. Title 3, Ch. 7, parts 1, 2, 3, and 4, MCA.
Jurisdiction for the determination of existing water rights
was placed exclusively in the water courts, sitting in the
respective water divisions. Section 3-7-501, MCA.
The adjudication of water rights under the 1979
enactment was begun by the filing of a petition in this Court
by the Attorney General for the State of Montana requesting
the Montana Supreme Court to require all persons claiming a
water right to file a claim of that right in accordance with
the new procedures. In June, 1979, this Court issued a water
rights order whereby every person or entity claiming a water
right, was ordered to file a statement of that claim with the
DNRC. The statement of claim was to include all of the data
required to identify the owners of, the extent of, the legal
description of, the purpose of, and the times of use of
existing water rights. Section 87-2-224, MCA. A claim of an
existing right filed in accordance with the new act was to
"constitute prima facie proof of its content" until the
issuance of a final decree. Section 85-2-227, MCA.
The function of the department in rendering assistance
to the water judges was set forth in S 85-2-243, MCA. That
section follows:
The department subject to the direction of the
water judge, shall, without cost to the judicial
districts wholly or partly within his water
division:
(1) provide such information and assistance as may
be required by the water judge to adjudicate claims
of existing rights;
(2) establish information and assistance programs
to aid claimants in the filing of claims for
existing rights required by 85-2-221;
(3) conduct field investigations of claims that
the water judge in consultation with the department
determines warrant investigation; and
(4) provide the water jud.ge with all information
in its possession bearing upon existing rights,
including all declarations filed with and all
information gathered by the department with respect
to existing rights in the Powder River Basin.
Any further duties of the department with respect to the
adjudication of existing claims may be found in S 85-2-112,
NCA. They include the duty to enforce and administer the
adjudication chapter "subject to the powers and duties of the
Supreme Court under 3-7-204, MCA;" to prescribe procedures,
forms and requirements for claims of existing rights and
prescribing information therein; to keep a centralized record
system in Helena of such claims of existing rights; to
cooperate with and to assist federal, state and. local
agencies in adjudication matters; and upon request, to assist
in advising persons relating to the filing of claims of
existing rights.
We have not touched upon the history of claimants of
reserved rights, including United States, the reserved or
claimed rights of state agencies, or the claimed or reserved
Indian rights. Some portion of the history of those entities
in the matter of adjudication of existing water rights will
appear later in this Opinion.
STATUTORY AUTHORITY IN THE WATER COURTS AND IN DNRC
Two things stand out clearly from the legislative
enactments that occurred in 1979: (1) the water judge in
each division has jurisdiction over all matters concerning
the determination of existing water rights within his
division ( S 3-7-501 (3), MCA); (2) the role of the DNRC in
the adjudication process, always subject to the direction of
the water judge, is to provide such information and
assistance as may be required by the water judge, to
establish information and assistance programs to aid
claimants in the filing of claims, and to conduct field
investigations in claims that the water judge, in
consultation with the department warrant investigation.
Section 85-2-243, MCA.
The further duty of the DNRC in S 85-2-243, MCA, to
provide the water judge with all information in its
possession relating to existing water rights in the Powder
River Basin derived from the fact that the department had
prior to 1979 commenced water right determinations in that
basin and the holders of water rights in that basis had been
exempt from filing further claims under the new adjudication
process. Section 85-2-222, MCA.
We note that in $ 89-874, R.C.M. (1947), now repealed,
it was formerly provided prior to 1979 that if the District
Court in adjudicating a water right determined that
additional data was necessary prior to a preliminary decree,
the District Court could direct the department or the person
claiming the right to obtain the necessary data. That
provision of the former law was carried forward and is
included in present § 85-2-243, MCA. However, there is no
current statutory language which continues the DNRC's
independent investigation authority in adjudication matters
which had been stated in former 5 s 89-870 and 89-871, R.C.M.
(1947), now also repealed.
However, DNRC contends in this appeal that it is an
"agency" which must adopt "rules" which prescribe the
procedures and practice requirements to be used by it in
implementing Title 85, Ch. 2, Part 2, MCA. It is apparently
backed up in this contention by a letter from the committee
chairman of the legislature's Administrative Code Committee
which states that DNRC's proposed rules are substantive rules
within the meaning of 55 2-4-102 (101, 2-4-102 (11), MCA. (The
Administrative Code Committee has not participated in these
proceedings, though empowered to do so ( 5 2-4-402(d), MCA)).
We must, therefore, determine, in the absence of express
rulemaking authority as we noted above, whether DNRC may find
such authority within MAPA itself. The pertinent statutes
are these:
2-4-102. Definitions. For purposes of this
chapter, the following definitions apply:
(2)(a) "Agency" means any agency, as defined in
2-3-102, of the state government ...
(10) "Rule" means each agency, regulation,
standard of statement of general applicability, it
implements, prescribes law or policy or d.escribes
the organization, procedure or practice
requirements of an agency . ..
(11) "Substantive" rules are either:
(a) legislative rules, which if adopted in
accordance with this chapter and under express1.y
delegated authority to promulgate rules to
implement a statute have the force of law and when
not so adopted are invalid; or
(b) adjective or interpretative rules, which may
be adopted in accordance with this chapter and
under express or implied authority to codify an
interpretation of a statute. Such interpretation
lacks the force of law.
The "agency" definition referred to in 5 2-3-102 (2) (a),
MCA, is the following:
2-3-102. Definitions. As used in this part, the
following definitions apply:
(1) "Agency" means any board, bureau, commission,
department, authority or officer of the state or
local government authorized & - - -
law to make rules,
determine contested cases, or enter into contracts
... (Emphasis supplied.)
For the DNRC to have rulemaking authority, its first
hurdle, over which it cannot jump, is expressly delegated
authority from the legislature to make such rules. As an
"agency" it must be authorized by law to make rules. If its
"substantive rules" are intended to be legislative, it must
have expressly delegated authority to promulgate rules. If
its substantive rules are intended to be adjective or
interpretative, it must have either expressed or implied
authority to codify an interpretation of a statute. Absent
any legislative authority, the DNP.C has no authority with
respect to rulemaking:
2-4-301, MCA. Authority to adopt not conferred.
Except as provided in Part I1 [not applicable]
nothing in this chapter confers authority upon or
-
augments the authority of any state agency to
adopt, administer, or enforce any rule.
If there is any doubt that the DNRC has no such power to
adopt the rules proposed in this case, that d.oubt must be
erased in consideration of 5 3-7-103, MCA:
3-7-103. Promulgation of rules - prescription
and
of forms.
- As soon as practicable, the Montana
Supreme Court may promulgate special rules of
practice and procedure and shall prescribe forms
for use in connection with this chapter and chapter
85, chapter 2, parts 2 and 7, in consultation with
the water judge and the Department of Natural
Resources and Conservation.
Thus clearly is spelled out by the legislature where the
power of rulemaking lies with respect to the adjudication of
water rights. That power resides in this Court. DNRC has no
more than a consultatory function.
Under our statutes only the BNRC has rulemaking
authority and the DNRC itself has no such authority. Section
85-2-113, MCA. We are aware that S 85-2-121 provides that
the Montana Administrative Procedure Act governs
administrative proceedings conducted under Parts 1 through 4
of Title 85, MCA. Since 1979, however, the adjudication of
existing claims for water rights has been a judicial
proceeding, and not an administrative proceedings. Section
85-2-121, therefore does not apply in this instance. We are
fortified in this by the provisions of $ 85-2-112, MCA,
prescribing the department duties, which states:
85-2-112. Department Duties. The department
shall:
(1) enforce and administer this chapter and rules
adopted by the board under 85-2-113, subject - -
to the
powers - duties - - Supreme Court under
and of the
3-7-204 ...
The legislative intent is clearly to be deduced from the
statutes foregoing. The power of rulemaking with respect to
the judicial proceedings pending before the water court is
reserved to the Supreme Court with the department acting in a
consultative capacity. Neither the board nor the Department
of Natural Resources has any rulemaking authority with
respect to procedures in the adjudication of water claims
before the water courts.
Having said the foregoing, we hasten to add that nothing
in this determination shall be taken to demean or
underestimate the crucial role to be played by DNRC in the
adjudication of water rights claims. The technical
expertise, assistance and information of the DNRC, which all
sides recognize, is indispensable for the success of the
adjudication process. A lack of departmental cooperation in
the furnishing of such technical expertise, assistance or
information could bring the judicial adjudication of water
rights to a grinding halt. It was to insure ongoing,
uninterrupted progress towards ultimate quantification of
water rights that the legislature provided in 5 85-2-243,
MCA, that the department should be subject to the directions
of the water judges in matters affecting adjudication.
When, in the very near future, this Court bends to the
task of formulating and adopting rules, it will do so after
consultation with the water courts and with the Department of
Natural Resources and Conservation. In those rules, this
Court will adhere to the legislative directions found in S
85-2-243. There will be room within those rules for the
integrity of DNRC in supplying the information and expertise
requested by the water courts. When such rules are
promulgated by us, there will be an opportunity for public
comment before such rules become finally effective.
85-2-243 AND DUE PROCESS
We have no underlying factual situation in this case, in
which an aggrieved water rights claimant has come to this
Court contending that he/she has been deprived of due process
because of the role played by the DNRC under 5 85-2-243, MCA.
DNRC, however, points to an "underlying concern" t-hat if
it is not given the power to adopt rules under MAPA, the
performance of its duties under 85-2-243, may lead
eventually to a determination in this Court or some federal
court that the procedures utilized deprived a person or
entity of due process.
DNRC ties its "underlying concern" to an unresolved
issue of due process in State ex rel. Greely v. Confederated
Salish & Kootenai Tribes (Mont. 1985), 712 P.2d 754. DNRC
further points to United States v. Superior Court for
Ma-ricopa County (hereafter Maricopa), Sari Carlos Apache Tribe
v. Superior Court for Maricopa (1985), 144 Ariz. 265, 697
P.2d 658, as a benchmark level which our adjudication process
must attain to survive a due process frontal attack.
In State ex rel. Greely v. Confederated Salish &
Kootenai Tribes, the Assiniboine and Sioux Tribes on the Fort
Peck Reservation, the Crow Indian Tribe Indians of the Crow
Reservation and the Northern Cheyenne Tribe of the Northern
Cheyenne Reservation and the Confederated Salish and Kootenai
Tribes on the Flathead Reservation all raised due process
issues involving the DNRC's various roles in the adjudication
process. We determined that such due process claims were not
ripe for review, saying:
Several tribes have claimed that the involvement of
the Department of Natural Resources with the water
court prior to issuance of preliminary decrees may
violate the requirements of due process. Section
85-2-243, MCA, authorizes the department to assist
the water court, including collecting information
and conducting field investigations of questionable
claims. While we recognize that the act places no
limits on the matter in which the water court
utilizes the information furnished by the
department, we will not presume any improper
application of the act on the part of the water
court. Actual violations of procedural due process
and other issues regarding the act as applied are
reviewable on appeal after a factual record is
established.
712 P.2d at 765.
DNRC is a holder of water rights, representing the
State. As such it has water rights which are subject to the
claims registration requirements of the Montana Water Use
Act. Thus, DNRC is a claimant in the adjudication process.
As a claimant, it may make objections to preliminary decrees
in the defense of its water rights. Moreover, the DNRC may
object to any preliminary decree, independent of its status
as a water rights claimant. Section 85-2-233, MCA. The
requirement that the DNRC assume these roles, and at the same
time be obliged to supply technical information and expertise
to the water courts gives rise to the potential due process
objections by the Tribes. DNRC points to the decision in
Maricopa in this regard.
In Maricopa County, the Arizona Department of Water
Resources was assigned functions of determining the scope of
the adjudication, the development of claim forms, and the
service of process on potential claimants. It also provided
a list of potential water masters to the State court and
provided technical assistance to the court or master. But in
Arizona, a separate agency was assigned the role of claimant
to water rights on behalf of the state, and the Attorney
General of that state represents the state with respect to
claims asserted on the state's behalf. The DNRC fears that
it may be considered to be "institutionally biased," because
it is both a claimant to water rights, an objector to
preliminary decrees, and yet the furnisher of technical
expertise and information to the water court. In Maricopa,
the adjudication scheme of Arizona was upheld because the
adjudicatory functions of its department was separated from
the ownership functions of the state which were placed in
another department. 697 P.2d 672-674.
There is, of course, a potential of due process problems
in Montana ' s adjudication plan, but absent a factual record,
we may not presume that due process violations have occurred.
The Indian tribes, so far, by legislative grant, § 85-2-217,
MCA, have not been involved in the adjudication proceedings.
The due process potential problem is greatly ameliorated by
the notice of preliminary decree provisions in S 85-2-232,
and the provisions for hearing in 85-2-233. Appeals are
preserved in S 85-2-235, MCA.
Our water courts are aware, we trust, that the United
States Supreme Court reserved the right to review state court
adjudications of federal reserve water rights in San Carlos
Apache (1983), 463 U.S. 545, 103 S.Ct. 3201, 77 L.Ed.2d 837,
and said it would give "particularized and exacting
scrutiny" commensurate with the powerful federal interests in
safeguarding those [Indian] rights from state encroachment.
The alternative presented to us by the DNRC in raising its
underlying concern about due process is to eliminate
completely from S 85-2-243 any requirement that the water
judge control the adjudication by directing the DNRC to
provide information and assistance and to investigate claims.
Such action would make the water adjudication procedure
almost unworkable. In the meantime, as we stated in
Confederated Salish and Kootenai, the issue is not yet ripe
for review.
SECTION 85-2-243 SEPARATION OF POF7ERS
Under this heading, DNRC contends that the water court's
orders of July 23, 1986 and August 8, 1986 demonstrate its
plan to exert total control over the day by day operations of
DNRC. Such, DNRC, contends is judicial control over an
executive agency and as such an improper incursion by the
judiciary on executive powers.
As with DbTRC's due process claims, we do not have a
factual record that would establish an improper exercise by
the water courts of executive powers in the guise of judicial
action. We do have, however, the stipulation entered into
between the DNRC, the water courts and other parties in cause
nos. 85-345, 85-468, and 85-493 pending in this Court. In
that stipulation, in paragraph 26, page 10, it is stated:
Pursuant to section 85-2-243, MCA, the water court,
after consul-tation with DNRC, shall issue orders
establishing time frames for the completion of
verification by DNRC and the submission of
verification information to the court. The water
court order shall also establish the specific
elements of each type of water right claimed to be
verified by DNRC. The verification by DNRC shall
be limited to factual analysis and the
identification of issues. The water court shall
refrain from participating in the verification of
claims by DNRC, except the water court, upon proper
application and for good cause shown, may enjoin
DNRC from acting beyond its jurisdi.ction in the
verification process.
The language of the foregoing stipulation, acceded to by
the chief judge of the water court, belies any intention of
the water court to override or control the day to day
operations of the DNRC. The only effect of the orders of
July 23 and August 8, 1986, issued by the water court was to
require the DNRC to desist from making rules under MAPA, a
procedure which we have already shown to be beyond the power
of the DNRC in this case.
Again in the absence of a factual record, we find no
intrusion by the water courts in this case upon the executive
duties of the DNRC.
CONCLUSION
The orders issued by the water court directed the DNRC,
dated July 23, 1986 and August 8, 1986, are hereby affirmed.
This Court sees the need for the adoption of rules
relating to the verification of water claims in the
adjudication process as necessary, and therefore will
exercise its discretionary power under S 3-7-103, MCA, to
promulgate special rules of practice and procedure therefor.
This Court therefore orders that the chief water judge of the
water courts, and the director of the DNRC appoint staff
members who shall meet within fifteen days of the date of
this Opinion for the purpose of drafting proposed rules for
adoption by this Court. Such proposed rules shall be filed
in this Court in this cause on or before thirty days from the
date of this Opinion. If the parties are unable to agree on
any part of such rules, each party shall submit his or its
separate version of those rules within thirty days of this
Opinion. Thereafter, this Court will set a date for
consultation with the chief water judge and the Department of
Natural Resources and Conservation pursuant to S 3-7-103,
MCA, to the eventual adoption of proper rules. Zurisdiction
in this Court is reserved until the further order of this
Court.
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We Concur: ,
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