No. 88-093
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN THE MATTER OF THE ADJUDICATION OF THE
EXISTING RIGHTS TO THE USE OF ALL THE WATER
BOTH SURFACE AND UNDERGROUND, WITHIN THE
DEARBORN DRAINAGE AREA, INCLUDING ALL
TRIBUTARIES OF THE DEARBORN RIVER IN CASCADE
AND LEWIS AND CLARK COUNTIES, MONTANA.
APPEAL FROM: The Water Courts of the State of Montana
The Honorable Roy Rodeyhiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert N. Lane argued, Helena, Ilontana
For Respondent:
Moore, Rice, O'Connell & Refling; Perry J Moore argued,
Bozeman, Montana
David C. Moon and Dorothy L. Brownlow, Rozeman, MT
James D. Rector, Glasgow, Montana
W. G. Gilbert, Jr: p Dillon, llontana
James J. Bottomly, Bozeman, Montana
William R. Morse, Absarokee, Montana
John M. Dietrich, Billings, Montana
John C. Doubek, Helena, Montana
Lisa Leckie, Helena, Montana
Chris Mangen, Jr., Billings, Montana
For Amicus Curiae:
Montana Wildlife Federation and Trout Unlimited
Stan Bradshaw, Helena, Montana
Thomas M. France, Missoula, Montana
Submitted: September 9, 1988
Decided: October 19, 1988
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
We hold here that the Water Court was correct in
determining on August 27, 1987, that the Department of Fish,
Wildlife and Parks (DFWP) does not have a valid pre-1973
appropriation water right claim to the in-lake or in-stream
waters of Bean Lake, situated in the Dearborn River Drainage
area.
Bean Lake is a natural pothole lake, lying across the
four common corners of Sections 13 and 14, Township 18 North,
Range 7 West, and Sections 18 and 19, Township 18 North,
Range 6 West, M.P.M. There is no defined water inlet to Bean
Lake. Its sources are ground water seepage and run-off from
precipitation. The lake has a surface area of about 200
acres, a maximum depth of 31 feet and a total average volume
of 2,862 acre-feet. Though the lake has a man-made overflow
emptying to the north fork of the Dearborn River, no water
flows out of the lake under normal circumstances.
The Dearborn River Drainage area, which includes Bean
Lake, is subject to the ongoing statewide adjudication of
water rights commanded under Title 85, Ch. 2, Part 2 (SF
85-2-201-243), MCA (1987) . Acting under $5 85-2-221, 223,
224, MCA, DFWP duly filed a claim for a use water right based
on recreation to "all the water stored in [Bean] Lake." The
Dearborn River Basin is designated by the Water Court as
Basin 41U, and the claim of DFWP was assigned the claim
number 41U-W-96936. DFFJP claims a "use" right under the
Montana prior appropriation doctrine. Its claim is not based
in any manner on the public trust doctrine. The claimed use
was "recreation," but the claim was amended at trial before
the Water Court to include use for "fish and wildlife"
purposes.
DFWP first planted fish in Bean Lake on May 27, 1933.
Rainbow trout were planted in 1934, silver salmon in 1935,
and then not again until 1951 when fish were planted every
year thereafter.
Prior to 1951, privately owned lands completely
surrounded Bean Lake, with no public access. On May 15,
1951, Wallace Bean, the owner of lands abutting Bean Lake,
entered into a tripartite agreement with the then Montana
State Fish and Game Department, and the Augusta Chamber of
Commerce, whereby Bean permitted access over his lands to the
water's edge for the public to use in boating and fishing on
Bean Lake. In return, the Montana Fish and Game Department
instigated a management plan and agreed to stock the lake
with suitable fish. The Augusta Chamber of Commerce agreed
to set up conveniences for visitors and in effect to police
the area. The agreement provided that either party could
terminate the agreement after two years, in which case the
lake would revert "back to its original management as a
privately owned lake."
In 1964, Wallace R. Bean and Fern L. Bean, his wife, by
warranty deed, conveyed to the State Fish and Game Commission
! predecessor of DFWP) 16.33 acres abutting Bean Lake.
a
Under the deed, the grantors had the right to drain and lower
the level of Bean Lake to a point on a permanent marker
installed at the lake's edge. The Beans covenanted, to run
with the land, that the lake would at all times be maintained
at a level equal to or higher than the permanent marker.
In 1963, at about the same time as the warranty deed
transaction, the Beans filed a water right claim on Bean Lake
for irrigation purposes. At least one other appropriator has
an earlier appropriation water claim to Bean Lake for stock
water.
It is assumed by the Court that there has been extensive
public use of Bean Lake for recreational and fishing purposes
through the years herein mentioned, and yearly efforts by
DFWP and its predecessors to manage the fisheries resource,
compute Bean Lake surface levels, make studies regarding
animal wastes in Bean Lake, enforce rules regarding use of
motorboats, and other indicia of DFWP involvement regarding
the lake.
In the adjudication of the Dearborn River drainage area
by the Water Court, a temporary preliminary decree was
entered which omitted the claim of DFWP to an appropriative
use right in the waters of Bean Lake. The remark of the
Water Court in denying the DFWP claim was that the "Water
Court finds no legal basis for this purpose to be considered
as a beneficial use or appropriation of water."
DFWP filed an objection to the Water Court's denial of
its claim in adopting the temporary preliminary decree, and
eventually the objection came on for a pre-hearing
conference. The legal issues in the case were of a
precedent-setting nature which required statewide notice by
publication. The notice invited and provided for
participation by interested persons in the legal issues
presented and allowed the equivalent of objections to the
potential quantity of DFWP's claimed right. Those who
desired to participate were required to file a Notice of
Intent to Appear. Over 50 different individuals or groups
exercised an option to participate. DFWP1s claim came on for
trial before the Water Court. On August 27, 1987, the Water
Court entered its findings of fact, conclusions, judgment and
decree to the effect that the claim of DFWP was not a valid
appropriation water right. "because of the lack of diversion,
intent, and notice." The claim of DFWP was therefore
terminated. Appeal by DFWP to this Court followed.
The first problem is whether the decision of the Water
Court is appealable to this Court at this stage of the
proceedings. No Rule 54 ( b ) certificate was sought or
procured from the Water Court.
In the recent consolidated causes no. 87-528 (relating
to the Sage Creek Drainage area) and 88-092 (relating to the
Boulder River Drainage area) decided October 11, 1988, we
dismissed appeals where a Rule 54(b) certificate had not been
obtained, in effect holding that the causes were not final
for the purposes of appeal. We have decided not to take that
course with respect to this case. We are informed that DFWP
has filed 15 to 17 claims in various drainages which claim a
water right based on the doctrine of appropriation, based on
facts similar to those here. DFWP is given authority
exclusively to represent the public for purposes of
establishing any prior and existing public recreational use
right in the ongoing water right determinations. Section
85-2-223, MCA. Under this statute, DFWP considers itself
duty-bound to file appropriative use claims in this and other
drainages. The issue, of course, will recur, and any
decision by us now as to the precise validity of such
appropriation claims would help speed the water adjudication
process. As we said in McDonald v. State (Mont. 1986), 722
P.2d 598, 43 St.Rep. 576:
The issue raised is not limited personally to
McDonald and her co-petitioners, but extends
throughout the whole process of the adjudication of
irrigation of water rights by the Water Courts.
The issue affects all of those rights.
Adjudication by this Court now as to the issue
raised would serve to guide the Water Court in this
particularly important matter; would provide
judicial economy in avoiding protracted litigation
both in the Water Courts and in this Court; and
would serve the public policy of the state by
expediting the determination of existing water
rights. It is therefore appropriate that we accept
jurisdiction of this issue by way of declaratory
relief, involved as it is with our duty to
supervise the Water Courts. We have, moreover, a
justiciable issue which does not require further
determinations of factual issues either by a master
or by a district court. (Citing authority.) .. .
722 P.2d at 601, 43 St.Rep. at 579.
The parties to this lawsuit are anxious for an early
determination of the issues presented, and each urges us to
take jurisdiction of the appeal. We could accept
jurisdiction under our power to declare rights, status and
other legal relations, whether or not further relief is or
could be claimed ( 27-8-201, MCA) and to afford relief on
certainty and insecurity with respect to those rights ( S
27-8-102, MCA). Lest there be any dispute about it, however,
we accept jurisdiction of this cause under our power of
general supervisory control over the Water Courts. Art. VII,
S 2(2), 1972 Mont. Const.
The second issue to be disposed of is the contention of
DFWP that the Montana Stockgrowers Association has no
standing as a party in this cause. DFWP contends that the
Association represents no person who had a potential to be
adversely affected by the DFWP claim in Bean Lake. The DFWP
objected before the Water Court claiming that because there
were only two other potential appropriation users in the Bean
Lake adjudication, and since the Association did not
represent either of them individually in a cause, no
justiciable controversy or standing in the Association
existed.
The Montana Stockgrowers Association answers that the
importance of the issue was recognized by the Water Court
which. required statewide notice to be given and invitation
for others to appear. Because of the large numbers of
persons appearing, the law firm of Moore, Rice, OIConnell and
Refling was appointed lead counsel for all those appearing to
oppose the claim, including their client Montana Stockgrowers
Association. The Association further claimed standing on
behalf of its membership who could be affected. It appears
that both of the appropriators in Bean Lake are also members
of the Association. We agree that Stockgrowers must be able
to show an interest in the subject matter of litigation which
has been injuriously affected by the judgment or order to
have standing on appeal. Holmstrom Land Company v. Newland
Creek Water District (1979), 185 Mont. 409, 425, 605 P.2d
1060, 1069.
In the very recent case of New York State Club Ass'n.,
Inc. v. City of New York, et al. (Decided June 20, 1988, no.
86-1836) , - U.S. - 1 - S.Ct. I -
L.Ed.2d -r
the United States unanimously upheld the right of an
association to proceed in an action on behalf of its members.
The Supreme Court held an association has standing to sue on
behalf of its members when "(a) its members would otherwise
have standing to sue in their own right, (b) the interests it
seeks to protect are germane to the organization's purpose;
and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit." Those conditions for standing are all met here.
We hold that the tests in - - State Club Assln., Inc.,
New York
supra, also determine the standing of an association to
appear as a party on behalf of its members in the state
courts of Montana. In this cause, the Montana Stockgrowers
Association has standing as a party.
We turn now to the principal issue in this case, which
is whether DFWP, for itself or for the people, has an
enforceable appropriation water right claim for recreation,
fish and wildlife purposes in Bean Lake that pre-existed
1973. The DFWP claim is based exclusively on the doctrine of
appropriation, and we can concentrate our discussion on the
attributes of that doctrine in making a decision.
What would be the effect if we agreed with DFWP that an
appropriation right existed? DFWP argues for a priority date
of 1951, the time that its predecessor entered into a
tripartite agreement with the Beans and the Augusta Chamber
of Commerce. Its claim is for the use of all the water
"stored in Bean Lake." Thus DFWP's claim would be junior to
the first appropriator's right, for which the Water Court
awarded a priority date of 1864. It would be senior to the
Bean appropriation of 1964. From our record, it appears that
no other appropriator made claim to the use of Bean Lake
waters in the adjudication process.
DFWP urges that its claim of water right can be
sustained on two grounds: (1) recreational fish and
wildlife purposes are beneficial uses which will support an
appropriation right; and (2) for this type of an
appropriation, no diversion of the waters is required.
The arguments of DFWP in support of its claim may be
summarized: in-stream, in-lake, or in-source recreational
fish and wildlife uses without a diversion are beneficial
uses which support appropriation by the Department on behalf
of the public. There is no question that the use in this
case was established well prior to July 1, 1973. Art. IX,
Sec. 3, 1972 Montana Constitution recognizes recreation as a
beneficial use. The establishment by the legislature of
"Murphy rights" in 1969 and 1973 shows that uses for
recreational purposes are beneficial.
Further summarizing, we note that DFWP contends the
Water Court itself is divided on the necessity of diversion.
In this case the Water Court Judge found that a diversion was
necessary for a pre-1973 use right. In the OIFallon Creek
Basin, (case 42L-5 in the Water Court) and in the Red Water
River Basin (case 40P-2 in the Water Court) the Water Court
held that the Department of Interior, Bureau of Land
Management, would have recognized appropriation claims for
wildlife in instances where the Bureau acted under a
congressional mandate to protect wildlife. In the Kootenai
River Drainage (case 76D-48 in the Water Court) the
construction and maintenance of fish ladders, fish passage
facilities and the barrier dam and fish trap were recognized
as constituting an appropriation by diversion on Young Creek
and the Tobacco River. Further, the Department urges that
the purpose of diversion is to give notice of the
appropriated use by the appropriator and in this case the
extensive efforts and expenditures by the Department in
developing and managing the fishery clearly gave such notice
though no diversion occurred. In other words, the actual
application of the water to a beneficial use meets the
requirements of intent or notice.
The respondents answer these contentions by insisting
that an "existing right" must be a right to the use of water
protected under the law as it existed prior to July 1, 1973.
They claim that DFWP has not met the basic elements of a
valid appropriation under the law prior to 1973, and that the
claim of appropriation at this late date is simply an
afterthought. The requirement of an intent to appropriate
serves several elements, priority, quantity and the purpose
of use. The most important function of diversion is notice
that a water right is being appropriated. Respondents
further contend that in the stocking and managing of Bean
Lake, the Department had no intent at the time to make an
appropriation on which to base a water right. The diversion
requirement provides evidence of an intent that gives notice
to other water users of the specifics of the appropriation,
citing Holmstrom Land Company v. Newland Creek Water District
(1979), 185 Mont. 409, 605 P.2d 160.
These are the principal contentions of the parties.
Both sides have also cited to us decisions of other states,
but these are somewhat conflicting and depend in some
instances on factors not present here, such as legislative
action. We should note that DFWP relies particularly on
Paradise Rainbows et al. v. Fish and Game Commission (19661,
148 Mont. 412, 421 P.2d 717. In that case Warren DePuy had
constructed a dam on Armstrong Spring Creek, and had taken
all of the flow of that water for the construction of fish
ponds. He was directed by the Commission (predecessor of
DFWP) to construct a fishladder over the dam pursuant to a
statute. DePuy refused and the Commission brought an action
for mandatory injunction to compel the building of the fish
ladder. The Court denied the mandatory injunction but in
dictum it stated:
The Commission does not deny that DePuy has a valid
appropriative right to the waters of Armstrong
Spring Creek. In fact the Commission made no
attempt to prove that the amount of water actually
put to beneficial use by DePuy was less than the
amount claimed and diverted. The Commission does
maintain that the public has a prior right to the
waters of the creek which would require DePuy to
release some water through a fishladder. The
public right urged by the Commission would be based
on the fact that the public had used the creek as a
fishing stream and natural fish hatchery before
DePuy built his dam. Under the rule of Bullerdick
v. Hermsmeyer, 32 Mont. 541, 554, 81 P. 334, DePuy
could not use the water to the detriment of prjor
rights.
Such a public right has never been declared in the
case law of this state. California, an
appropriation doctrine jurisdiction, whose
constitutional provisions relating to water rights
are virtually the same as Art. 111, Sec. 15 of the
Montana Constitution [I8891 has recognized such a
right and has upheld statutes requiring fishways
(citing authority). Under the proper circumstances
we feel that such a public interest should be
recognized. This issue will inevitably grow more
pressing as increasing demands are made on our
water resources. An abundance of good trout
streams is unquestionably an asset of considerable
value to the people of Montana.
While the Commission's argument is plausible, we
cannot yield to it given the facts at hand. . ..
148 Mont. at 419, 420, 421 P.2d at 721.
We accept as given that the activities of the DFWP in
stocking Bean Lake, maintaining the fishery resource, making
studies of the Bean Lake surface levels and fish population,
enforcing rules relating to motor boats, coupled with the
general public use of Bean Lake for the purpose of
recreation, wildlife, and fishing constituted a beneficial
use of the waters within the meaning of the appropriation
doctrine. In this case the Plater Court itself determined
that use was in fact beneficial. This Court has never closed
the list of what comprises a beneficial use. See Stone,
"Legal Battle Background on R.ecreationa1 Use of Montana's
Waters," 32 Mont. Law Review 1, 14 (1971).
Recreation is recognized as a beneficial use in Art. IX,
Sec. 3, 1972 Montana Constitution.
The historical growth of Montana appropriation water law
is well documented in our cases. See Stone, "Montana Water
Law for the 1980's" (1981). It began with the needs of
miners who engaged in placer mining and mill operations and
nearly simultaneously with the needs of irrigators for farm
lands. In these cases, the water was "captured" in the sense
that the water was diverted from its main stream or channel
and put to use by the appropriator. A completed
appropriation meant an actual diversion of the water which
served any of several purposes. Diversion proved an intent
to appropriate the water, Bailey et a1 v. Tintinger (1912),
45 Mont. 154, 122 P. 575, as did the capacity of the works
Bailey, supra. In Toohey v. Campbell (1900), 24 Mont. 13, it
was held that intent was determined by the extent of the farm
tract actually reduced to possession and cultivated.
It cannot be disputed however that there were beneficial
uses for which appropriation rights could be obtained which
would not require diversion of the waters. Though some
impoundment was involved, such use included hydroelectric
power use of dams, and the impoundment of waters in
reservoirs, although the latter included a capture of sorts.
The first appropriators in Montana acquired an
appropriation right simply by putting the water to a
beneficial use. Kienschmidt v. Binzel (1894), 14 Mont. 31.
The first statutes relating to appropriation were enacted in
this state in 1885. Even without complying with the
statutes, however, a party, simply by putting the water to
beneficial use, could acquire a valid appropriation right,
Murray v. Tingley (1897), 20 Mont. 260 provided the stream
was unadjudicated.
There is not any doubt that in all the time from the
first settlers until 1972, the waters of Montana were being
put to extensive recreational use by the public. The DFWP
and its predecessors have a long history of sustaining
fisheries in-lake and in-steam. Yet no court case, and no
statute except for a Murphy right statute, recognized any
kind of an appropriation right in the waters thus used. In
truth, no Montana legal authority, deriving either from
common law or statute, acknowledged that recreational, fish
or wildlife uses, even though beneficial, gave rise to any
water rights by appropriation under Montana law.
It was in this legal climate that the legislature
adopted the first Murphy right statute in 1969. Chapter 345,
Laws of 1969 amended S 89-801, R.C.M. (1947), by adding
subsection (2) thereto, so that the section read in part as
follows:
89-801. What waters may be appropriated. (1) The
right to the use of the unappropriated water of any
river, stream, ravine, coulee, spring, lake, or
other natural sources of supply may be acquired by
appropriation, and an appropriator may impound
flood, seepage, and waste waters in a reservoir and
thereby appropriate the same.
(2) But the unappropriated waters of the streams
and portions of streams hereafter named shall be
subject to appropriation by the fish and game
commission of the state of Montana in such amounts
only as may be necessary to maintain stream flows
necessary for the preservation of fish and wildlife
habitat. Such uses shall have a priority of right
over other uses until the district court in which
lies the major portion of such stream or streams
shall determine that such waters are needed for a
use determined by said court to be more beneficial
to the public. The unappropriated water of other
streams and rivers not named herein may be set
aside in the future for appropriation by the fish
and game commission upon the consideration and
recommendation of the water resources board, fish
and game commission, state soil conservation
committee, the state board of health and approval
of the legislature ...
Section 89-801, R.C.M. (1947) as amended was in force
and effect until 1973 when it was repealed. While it was in
effect, the Fish and Game Commission was permitted to
appropriate unappropriated waters in 12 blue-ribbon fishing
streams named therein. Bean Lake was not named. The amended
statute further expressly provided that no other
appropriations would be allowed except upon the
recommendations of certain boards of the state, and
particularly the "approval of the legislature." Our
understanding is that the Fish and Game Commission, and its
successors have made Murphy right appropriations as permitted
under § 89-801 R.C.M. (1947).
The foregoing was the state of the law pertaining to
water use rights when the state constitutional convention was
held in 1972. Before that, in no sense, did DFWP or its
predecessors claim any appropriative rights for recreational
fish or wildlife purposes except as permitted under the
Murphy right statute. Indeed, the evidence in this case
shows that the publications issued by DFWP and its
predecessors, and public statements made by persons holding
responsible positions in the Department, all assumed that an
appropriation right could not be acquired for those purposes.
In so reporting, we do not intimate that the Department is
bound by those expressions of opinion of its publications, or
of its officers and employees. We report them as confirming
the general opinion of the legal community that existed at
the time. It is with that background of opinion that the
dictum expressed in Paradise Rainbows, supra, can be
understood.
The 1972 Montana Constitution provided that "all
existing rights of the use of any waters for any useful or
beneficial purpose are hereby recognized and confirmed."
Art. IX, Sec. 3 (1), 1972 Mont. Const. In McDonald v. State
(Mont. 1986), 722 P.2d 590, 601, 34 St.Rep. 576, we said:
There are two components to the Montana
constitutional guarantee: There must be an
existing right to the use of water, and the use
must be for beneficial purpose .
. .
While it might be argued that at the time of the
adoption of the 1972 Montana Constitution, the in-stream and
in-lake waters of the state were being put to beneficial use
for recreation, fish and wildlife purposes, and that
therefore an appropriation right existed, it is clear that at
the adoption of the Constitution, the constitutional framers
thought otherwise.
As a part of Art. IX of the new Constitution, the
convention adopted subsections (3) and (4) of Section 3.
Those subsections provide:
(3) All surface, underground, flood, and
atmospheric waters within the boundaries of the
state are the property of the state for the use of
its people and are subject to appropriation for
beneficial uses as provided by law.
(4) The legislature shall provide for the
administration, control, and regulation of water
rights and shall establish a system of centralized
records, in addition to the present system of local
records.
When those subsections came before the convention for
adoption, Delegate McNeil, supporting their adoption, spoke
to the convention in this wise:
Subsection 3 is a new provision to establish
ownership of all water in the state subject to use
by the people. This does not, in any way, affect
the past, present, or future right to appropriate
water for beneficial uses and is intended to
recognize Montana Supreme Court decisions and
guarantee the State of Montana's standing to claim
all of its waters for use by the people of Montana.
in manners involving other states and the United
States government. Subsection 4 is a new provision
to permit recreation and stockwatering to acquire a
water right without the necessity of a diversion.
This applies only to future rights and, of course,
only to waters listed of which there are no present
water rights. This subsection further provides
that future agricultural and industrial water
development will not be foreclosed by recreation,
as it is left up to the Legislature to determine
the method of establishing a future water right
without a diversion; . . .
Verbatim Transcript, Montana Constitutional Convention, Vol.
V, at 1301.
Subsection 4, referred to in the above quotation, was
proposed by the Committee on Natural Resources and
Agriculture. As proposed, subsection 4 would have provided
that a diversion was not required for future acquisition of a
water right, and would have given the legislature power to
designate priorities between future acquired water rights.
(Montana Constitutional Convention, Vol. 11, at 552-553.)
Subsection 4 did not make it through the convention to be
included in the 1972 Montana Constitution. After several
hours of debate, the subsection was deleted in its entirety
on motion of Delegate McDonough. (Montana Constitutional
Convention, Verbatim Transcript, Volume V, at 1301-1343.) By
the ad-option of Article IX, Section 3 in its present form,
the Constitutional Convention left it to the legislature to
provide appropriation rights for beneficial uses not
theretofore recognized under our law.
The legislature did so act in 1973. It repealed the
first Murphy right statute, S 89-801 R.C.M. (1347) . Instead
of an appropriation, the legislature provided that a
government agency could reserve waters for existing or future
beneficial uses in most of the principal streams of the
state. Section 85-2-316, MCA. Such reservations, when
granted, date from the order reserving the water adopted by
the Board of Natural Resources and Conservation; they may not
adversely affect any rights in existence at the time; and the
Board has no authority to alter a water right that is not a
reservation. Section 85-2-316 (9), (12), MCA.
It is clear therefore that under Montana law before
1973, no appropriation right was recognized for recreation,
fish and wil-dlife, except through a Murphy right statute.
The prevailing legal theory was that some form of diversion
or capture was necessary for an appropriation even though
some forms of non-diversionary water rights were given
appropriation status. In this case the Water Court denied
the appropriation water right claim "because of the lack of
diversion, intent, and notice." Whatever the merits of the
lack of diversion argument, the DFWP and the public could not
have intended an appropriation where none was recognized by
law, and for the same reason, adverse appropriators could not
have had notice of such a claim. We therefore uphold the
Water Court's decision that DFWP, for itself or for the
public, had. no appropriation right in Bean Lake, and no
"existing right" therein which is protected by Art. IX, S
3(1) of the 1972 Montana Constitution.
DFWP raises two other issues, one relating to additional
findings of fact requested by the Department which were not
considered by the Water Court, and the second that the Water
Court precluded the Department from inquiring into the water
rights of the other appropriators in this case. At the
outset of this opinion, we assumed all the facts for which
the Department contended and none of those facts would change
our consideration of the applicable law. Since DFWP had no
appropriation water rights in Bean Lake, it was irrelevant to
inquire into the kinds of water rights of the other
appropriators against whom no objections were raised by other
parties.
This opinion serves the office of a writ of supervisory
control, without the necessity of the issuance of further
writs or documents. We acknowledge with appreciation the
several briefs submitted by amici curiae in this case. Let
remittitur issue forthwith.
We Concur: -
H@
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-Justices