Confederated Salish & Kootenai Tribes of the Flathead Reservation v. Stults

NO. 01-415

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 280

THE CONFEDERATED SALISH AND KOOTENAI TRIBES
OF THE FLATHEAD RESERVATION, STATE OF MONTANA,

Petitioners,

JACK STULTS, Administrator, Water Resources Division,
Montana Department of Natural Resources and Conservation;
. ,
4
BUD CLINCH, Director, Montana Department of Natural Resources
Conservation; MONTANA DEPARTMENT OF NATURAL
RESOURCES AND CONSERVATION; DONALD D. MacINTYRE,
Special Assistant Attorney General, Montana Department of Natural
Resources and Conservation; REGINALD C. LANG,
FILED D E C - 6 2002

Respondents.

OFUGINAL PROCEEDING

COUNSEL OF RECORD:

For Petitioners:
James H. Goetz (argued), Goetz, Gallik, Baldwin & Dolan, PC, Bozeman,
Montana
John B. Carter (argued), Daniel F. Decker, Confederated Salish and Kootenai
Tribes, Pablo, Montana
For Respondents:
Greg L. Ingraham (argued), Ingraham Law Firm, Ronan, Montana
Harley R. Harris (argued), Gary L. Davis, Candace Payne, Special Assistant
Attorneys General, Luxan & Murfitt, PLLP, Helena, Montana
Hon. Mike McGrath, Attorney General; Candace West (argued),
7
Assistant Attorney General, Helena, Montana

Argued and Submitted: December 11,2001
-
Decided: December 6,2002
Filed:
Justice Terry N. Trieweiler delivered the Opinion of the Court.

71 The Petitioners, the Confederated Salish and Kootenai Tribes of the Flathead

Reservation, have petitioned this Court to exercise original jurisdiction and enjoin the

issuance of a Beneficial Water Use permit to Reginald C. Lang. The Tribes further request

that we find the Department of Natural Resources and Conservation (DNRC) and the

individual Respondents, Jack Stults, Bud Clinch and Donald MacIntyre, in contempt of a

prior order of this Court. We permanently vacate the Final Order issued in In the Matter of

the Application for Beneficial Water Use Permit 76-L109371 by Reginald C. Lang but

decline to decide whether Respondents are in contempt of court.

72 The Tribes' Petition raises the following issues:

73 1. Is this an appropriate case in which to exercise original jurisdiction?

74 2. Should the Final Order authorizing issuance of a Beneficial Water Use permit to

Lang be dissolved?

75 3. Should Respondents Stults, Clinch, the DNRC, and MacIntyre be held in

contempt?

FACTUAL AND PROCEDURAL BACKGROUND

76 Respondent Reginald C. Lang purchased real property on the Flathead Reservation

a few miles north of Hot Springs, Montana, where he intended to commercially bottle water.

Lang applied for a Beneficial Water Use Permit on September 21, 1999. On January 10,

2000, the DNRC notified Lang that two objections had been filed. One of those was filed

by the Confederated Salish and Kootenai Tribes, who objected on the basis that the DNRC

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did not have the jurisdiction to issue water use permits on the Reservation.

77 The DNRC held a hearing concerning Lang's application on September 7,2000. The

Tribes did not participate in that hearing. On May 8,2001, Hearings Officer Charles Brasen

issued the DNRCfsProposal for Decision. The Hearings Officer proposed that the DNRC

grant Lang's permit application based on his conclusion that although our holding in

Confederated Salish and Kootenai Tribes v. Clinch, 1999 MT 342,297 Mont. 448,992 P.2d

244, enjoined the DNRC from issuing permits on the Reservation until the Tribesf reserved

water rights have been quantified, that holding did not apply to "a ground water source that

is not hydrologically connected to the surface source." As a result, the Hearings Officer

concluded that Lang met the statutory requirements for issuance of a beneficial water use

permit codified at 8 85-2-3 11, MCA. Nevertheless, the Hearings Officer concluded that the

DNRC should not enter a final order in the matter until this Court dissolved or modified the

holding of Clinch.

78 On or about May 11, 2001, the DNRC filed a "motion" with the Clinch caption in

which it asked this Court, pursuant to Rule 22, M.R.App.P., to dissolve or modify our Order

in Clinch. The DNRC contended that the injunctive relief granted in Clinch was overbroad

because there is no precedent for the proposition that the Tribes have a reserved water right

in groundwater. Further, the DNRC noted that Lang's application had been processed and

that after a hearing, the Hearings Officer proposed that a permit be issued. The DNRC asked

that the facts pertinent to the Lang application be reviewed pursuant to Rule 22, M.R.App.P.,

and that we modify our prior order to specify that it does not apply to groundwater. Finally,

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the attached affidavit of Administrator Jack Stults opined that the Clinch order enjoined only

"the issuance" of beneficial use permits within the Flathead Reservation "but did not enjoin

the processing of applications."

79 On May 3 1, 200 1, this Court denied the DNRC's motion. We held that the motion

procedure utilized by the DNRC was not appropriate and that resolution of DNRC's request

that we revisit the Lang application was dependent on facts this Court was ill-equipped to

develop.

710 Nevertheless, Stults issued a Final Order on Lang's application on June 7,200 1. The

Final Order granted Lang's application by adopting the Findings of Fact and Conclusions of

Law proposed by the hearing examiners with the exception of Conclusion of Law No. 2,

which was revised to state as follows:

The Department made application to the Montana Supreme Court to dissolve
or modify its injunction as it applies to the above-styled application. By order
of May 3 1, 200 1, the application was denied. However, the Supreme Court
stated that the relief sought by the Department is dependent on facts which the
Supreme Court is not well equipped to develop and that the issue would be
more appropriately considered following a fully developed factual record. A
factual record having been developed in this matter and to accord the parties
their due process rights to appeal on the record, the final order in this matter
may be entered.

71 1 The Tribes filed a Petition for Writ of Supervisory Control with this Court on June 18,

2001. The Tribes first requested that we suspend the Final Order authorizing issuance of a

new water pennit to Lang, and second that this Court find Respondents in contempt of court.

On June 19,2001, we stayed the DNRC's Final Order on Lang's application pending further

order of this Court.
 *

712 On July 11,2001, Stults, Clinch and the DNRC moved to dismiss the contempt claim,

as did Respondents MacIntyre, Hall, and Robinson on July 12, 2001. The Tribes later

amended their Petition by dismissing Hall and Robinson as Respondents.

713 On August 1,2001, the Respondents moved this Court to require mediation.

714 On August 14, 2001, we entered an Order which took the motion to dismiss, the

contempt charge, and the motion to compel arbitration under advisement. We then deferred

all pending motions until we addressed the merits of the Tribes' petition for original

jurisdiction.

715 The DNRC and Lang then responded to the Petition and we held oral argument on

November 13,2001.

DISCUSSION

ISSUE 1

71 6 Is this an appropriate case in which to exercise original jurisdiction?

717 Exercise of original jurisdiction is provided for by Article VII, Section 2(1) of the

Montana Constitution. The exercise of original jurisdiction is limited to those cases where

the applicant demonstrates that:

(1) constitutional issues of major statewide importance are involved;
(2) the questions involved are purely legal questions of statutory or
constitutional construction, and;
(3) urgency and emergency factors exist which make the normal appeal
process inadequate.

Stuart v. Dept. of Social and Rehab Services (1991), 247 Mont. 433,439,807 P.2d 7 10,713.

718 The DNRC argues that the Tribes cannot satisfy the three-pronged test for original
 *

jurisdiction because factual issues remain that could be addressed through the normal trial

and appeal process. Moreover, the DNRC contends that the issues raised by the current

Petition are different than the issues raised in Clinch because no administrative proceedings

were pending in that case. Lang additionally argues that the Tribes have failed to show that

their reserved water rights would be affected and therefore cannot demonstrate that

irreparable harm would result from the permit he was issued.

719 We conclude that this is an appropriate case in which to exercise original jurisdiction.

Our reasons for accepting original jurisdiction in this matter are identical to the reasons for

exercising original jurisdiction in Clinch. See Clinch, 7 9. The Petition implicates Article

IX, Section 3(1) of the Montana Constitution; tribal water rights are of statewide importance;

the decisive issue in this case is purely legal or constitutional; and the normal litigation

process is inadequate.

720 Those issues of fact which precluded consideration of the DNRC's May 11, 200 1,

motion to dissolve or modify our order in Clinch (i.e., whether groundwater is necessary for

the purpose for which the reservation was established) are not presented in this case and, for

reasons which should have been apparent from our prior decisions, cannot be decided other

than by negotiation or general water rights adjudication. In contrast, the issues raised here

are purely legal (i.e., whether permits of any kind can be issued prior to quantification of the

Tribes' water rights). The normal litigation process is inadequate because Stults has already

issued the Final Order authorizing a new water permit for Lang to the potential detriment of

the Tribes' unquantified reserved water rights. Furthermore, as repeatedly pointed out by this

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 L

4

and other courts, the Tribes need not participate in piecemeal agency proceedings to defend

their reserved .water rights.

ISSUE 2

72 1 Should the Final Order authorizing issuance of a Beneficial Water Use permit to Lang

be vacated?

722 The Tribes urge us to give effect to our decisions in In the Matter of the Application

for Beneficial Water Use Permit Nos. 66459-76L, Ciotti; 64988-G76L, Starner; and

Application for Change of Appropriation Water Right No. GI 51.52-S76L, Pope (1996), 278

Mont. 50, 923 P.2d 1073, and Clinch and vacate the Final Order which approved Lang's

water permit application. As the following discussion demonstrates, the legal issues

addressed and resolved in Ciotti and Clinch were the same as the issues raised here.

Accordingly, we find our analyses in Ciotti and Clinch dispositive.

723 Our 1996 decision in Ciotti held that the State may not issue new water permits on the

Flathead Reservation until the Tribes' prior and preeminent federally reserved water rights

have been quantified, either by a general inter sese water rights adjudication or by compact

negotiations with the Montana Reserved Water Rights Compact Commission pursuant to 5

85-2-702, MCA. Ciotti, 278 Mont. at 61, 923 P.2d at 1080.

724 In Clinch, we revisited Ciotti in light of S.B. 97, which amended 5 85-2-3 11, MCA

(1997), by eliminating the requirement in subparagraph (l)(e) that an applicant for a water

use permit prove that the proposed use will not interfere unreasonably with the use for which

water has been reserved. Instead, the Legislature inserted a requirement that the applicant

7
prove water is "legally available." However, those terms were not defined in the Water Use

Act other than in a circular three-part test which requires consideration of "legal demands."

See 8 85-2-3 1l(l)(A)-(C), MCA (1999). We held, similar to our holding in Ciotti, that the

DNRC cannot determine whether water is legally available on the Flathead Indian

Reservation because there is no way to determine whether issuance of permits would affect

the Tribes' existing water rights until those rights have been quantified. Clinch, 7 28.

725 Despite the seemingly clear mandate of Ciotti and Clinch, the Hearings Officer's

Proposal for Decision reasoned that the Tribes' federally reserved water right does not

encompass groundwater. Then, despite our order denying the DNRC's motion to dissolve

or modify Clinch as it related to Lang's application, Stults issued the Final Order granting

Lang's application. It is that action which is the subject of the present Petition.

726 In support of their Petition, the Tribes contend that the Final Order is illegal pursuant

to 5 85-2-3 11, MCA, our decisions in Ciotti and Clinch, and our Order of May 3 1,200 1. The

Tribes further contend that as a sovereign nation they should not be required to defend their

water rights in piecemeal proceedings before a hostile forum.

727 The DNRC and Lang respond that the DNRC developed a factual record in response

to our May 31, 2001, Order and that the Findings of the Hearings Officer, which were

adopted in the Final Order, were supported by substantial evidence. Never mind that the

factual record was developed without the Tribes' participation. The DNRC additionally

argues that Ciotti should not be extended to this situation because the Tribes' rights to

groundwater is legally uncertain.
128 We conclude that the Final Order should be vacated and that the DNRC cannot issue

beneficial water use permits for groundwater until the Tribes' federally reserved water rights

have been defined and quantified. In Clinch, we reviewed the relevant legal principles and

thoroughly explained the reasons for our holding in Ciotti:

[In Ciotti], we were asked to decide whether the Department had authority
to grant new water use permits on the Flathead Indian Reservation prior to
settlement or adjudication of the Tribes' water rights. We noted that the
requirements for issuance ofwater use permits were set forth at 8 85-2-3 11(1),
MCA, and that subsection (e) of that statute required that an applicant
demonstrate that:

The proposed use will not interfere unreasonably with other planned uses
or developments for which a permit has been issued or for which water has
been reserved.. ..

Ciotti, 278 Mont. at 55,923 P.2d at 1076.

We explained that there is a difference between State appropriated water
rights and Indian reserved water rights and to illustrate, pointed out that:

In State ex. rel. Greely v. Confederated Salish and Kootenai Tribes of
the Flathead Reservation (1985), 2 19 Mont. 76,89-90,7 12 P.2d 754,762,
we noted that:

State appropriative water rights and Indian reserved water rights differ
in origin and definition. State-created water rights are defined and
governed by state law. Indian reserved water rights are created or
recognized by federal treaty, federal statutes or executive order and are
governed by federal law.

Appropriative rights are based on actual use. Appropriation for
beneficial use is governed by state law. Reserved water rights are
established by reference to the purposes of the reservation rather
 than to actual, present use of the water. (Citations omitted.)

We also distinguished reserved rights on the basis that they need not be
diverted from the stream when we observed that:

The right to water reserved to preserve tribal hunting and fishing
rights is unusual in that it is non-consumptive. A reserved right for
hunting and fishing purposes "consists of the right to prevent other
appropriators from depleting the stream waters below a protected
level in any area where the non-consumptive rights applies."
[United States v.] Adair [(9thCir. 1983)], 723 F.2d [1394,] 1411,
[cert. denied, 467 U.S. 1252, 104 S.Ct. 3536, 82 L.Ed.2d 841
(1984)l.

The Supreme Court has also held that under the implied-reservation-
of-water-rights doctrine, Indians are entitled to sufficient water "to
develop, preserve, produce or sustain food and other resources of the
reservation, to make it livable." Arizona v. California [(1963)], 373
U.S. [546,] 599-600, [83 S.Ct. 1468, 1497-98, 10 L.Ed.2d 5421.

The Winters Court held that reserved water on the Fort Belknap
Reservation could be beneficially used for "acts of civilization" as well
as for agricultural purposes. Winters v. [United States (1908)], 207
U.S. [564], 576 [28 S.Ct. 207,211,52 L.Ed. 3401. It may be that such
"acts of civilization" will include consumptive uses for industrial
purposes. We have not found decisive federal cases on the extent of
Indian water rights for uses classed as "acts of civilization."

It is clear, however, that Indian reserved water rights may include
future uses. Arizona v. California, 373 U.S. at 600-01, 83 S.Ct. at
1498; United States v. Ahtanum Irrigation District (9thCir. 1964), 330
F.2d 897, 914. Most reservations have used only a fraction of their
reserved water. National Water Commission, Water Policies for the
Future 5 1-61 (1973). However, reserved rights may reflect future need
as well as present use. For example, the "practically irrigable acreage"
standard applies to future irrigation or reservation land, not present
irrigation practices and current consumptive uses.

We explained that it is undisputed that the Tribes possess reserved water rights
 which the Tribes were then attempting to quantify through negotiations with
the State of Montana pursuant to $5 85-2-701 through -705, MCA and that
"[ulntil the formal negotiations are resolved, however, the extent of the Tribes'
reserved water rights remains unknown. Although it is likely that the Tribes'
rights are pervasive, reserved water rights are difficult to quantify." See Ciotti,
278 Mont. at 59, 923 P.2d at 1079.

Clinch, 297 Mont. at 451-53, 992 P.2d at 247-48.

729 The same legal principles apply to the Tribes' Petition in this case. Neither Ciotti nor

Clinch excluded groundwater from our holding that an applicant for a water use permit

cannot prove that the requested use will not unreasonably interfere with the Tribes' reserved

water rights because those rights have never been quantified. In fact, the dissent to our

decision in Clinch made clear that groundwater was implicated by our decision. Clinch, 297

Mont. at 457, 992 P.2d at 250-51 (Rodeghiero, dissenting).

730 Furthermore, the only federal authority which has been cited to this Court by either

party supports the conclusion that there is no distinction between surface water and

groundwater for purposes of determining what water rights are reserved because those rights

are necessary to the purpose of an Indian reservation. In Tweedy v. Texas Co. (D.Mont.

1968), 286 F.Supp 383, 385, the U.S. District Court for the State of Montana stated as

follows:

When the Blackfeet Indian Reservation was created, the waters of the
reservation were reserved for the benefit of the reservation lands. Winters v.
United States, 207 U.S. 564,28 S.Ct. 207,52 L.Ed. 340 (1908). The Winters
case dealt only with the surface water, but the same implications which led the
Supreme Court to hold that surface waters had been reserved would apply to
underground waters as well. The land was arid-water would make it more
useful, and whether the waters were found on the surface of the land or under
it should make no difference.
73 1 In United States v. Cappaert (9th Cir. 1974), 508 F.2d 3 13, 3 17, the Ninth Circuit

Court of Appeals likewise cited Winters for the proposition that so much water is reserved

as is necessary to accomplish the purpose of a reservation and went on to conclude that the

water reserved is not limited to surface water but may include underground water.

732 In Cappaert v. Unitedstates (1976), 426 U.S. 128,96 S.Ct. 2062,48 L.Ed.2d 523, the

Supreme Court concluded that the groundwater at issue was physically interrelated with

surface water before concluding that the federal government had reserved an interest in the

groundwater. However, the Court then plainly stated that:

Thus, since the implied reservation of water rights doctrine is based on the
necessity of water for the purpose of the federal reservation, we hold that the
United States can protect its water from subsequent diversion, whether the
diversion is of surface or groundwater.

Cappaert, 426 U.S. at 143,96 S.Ct. at 2071.

733 Finally, in the only state court decision cited by either party which includes any

analysis of the issue, the Arizona Supreme Court in In re Gila River System and Source

(Ariz. 1999), 989 P.2d 739, 747, held that:

In summary, the cases we have cited lead us to conclude that if the United
States implicitly intended, when it established reservations, to reserve
sufficient unappropriated water to meet the reservations' needs, it must have
intended that reservation of water to come from whatever particular sources
each reservation had at hand. The significant question for the purpose of the
reserved rights doctrine is not whether the water runs above or below the
ground but whether it is necessary to accomplish the purpose of the
reservation.

734 For those reasons, the Arizona Supreme Court held that the federal reserved water

rights doctrine applies to not only surface but to groundwater. However, that Court did not
decide, and we do not decide, whether the groundwater at issue was necessary to accomplish

the purpose of the reservation. As stated by the Arizona Supreme Court:

To determine the purpose of a reservation and to determine the waters
necessary to accomplish that purpose are inevitably fact-intensive inquiries
that must be made on a reservation-by-reservation basis. See United States v.
New Mexico, 438 U.S. at 700,98 S.Ct. 3012.

Gila River System, 989 P.2d at 748.

735 We see no reason to limit the scopk of our prior holdings by excluding groundwater

from the Tribes' federally reserved water rights in this case. The Legislature has created the

Montana Reserved Water Rights Compact Commission, a body charged with the difficult

task of quantifying and negotiating Indian reserved water rights. Quantifying the amount of

groundwater available to the Tribes is simply another component of that inquiry. If it cannot

be done to the parties' satisfaction, then comprehensive water rights adjudication is the proper

forum in which to make that determination.

736 There is nothing unclear about the scope of our decision in Clinch:

Accordingly, we order that the Department not issue further water use permits
on the Flathead Reservation until the Tribes' rights have been quantified.

Clinch, 7 28.

737 We cannot say it more clearly: the DNRC cannot process or issue beneficial water use

permits on the Flathead Reservation until such time as the prior pre-eminent reserved water

rights of the Tribes have been quantified.

73 8 We further conclude that the Tribes should not be required to defend their water rights

by participating in the DNRC hearings process. The Tribes, as a sovereign nation, generally
enjoy sovereign immunity from proceedings in state courts. However, the McCarran

Amendment, enacted by Congress in 1952, expressly permits the joinder of the federal

government in state suits involving the adjudication of water rights. See 43 U.S.C. tj 666.

The stated purpose of the McCarran Amendment is to prevent piecemeal water rights

adjudications by requiring determination of all water rights in a given river system in a single

proceeding. See United States v. District Court In and For Eagle County (197 I), 40 1 U.S.

520,525,91 S.Ct. 998,1002,28 L.Ed.2d 278. In Colorado River Water Conservation Dist.

v. United States (1976), 424 U.S. 800, 809-810, 96 S.Ct. 1236, 1242, 47 L.Ed.2d 483, the

United States Supreme Court extended the McCarran Amendment's waiver of federal

sovereign immunity to state court adjudications of Indian reserved water rights. That waiver,

however, is limited to comprehensive adjudications:

The McCarran Amendment, as interpreted in Colorado River, allows and
encourages state courts to undertake the task of quantifying Indian water rights
in the course of comprehensive water adjudicatio~zs.[Emphasis added.]

Arizona v. San Carlos Apache Tribe (1983), 463 U.S. 545, 569, 103 S.Ct. 3201, 3215, 77
L.Ed.2d 837.

739 Two statutory methods for comprehensively adjudicating Indian reserved water rights

already exist - a general inter sese adjudication or negotiations with Montana Reserved

Water Rights Compact Commission. The DNRC's case by case analysis of individual water

rights applications is not a comprehensive adjudication. Therefore, the Tribes did not and

were not required to participate in agency hearings concerning Lang's application.

Consequently, the DNRC's attempt to circumvent our May 3 1,2001, Order on the grounds
that the agency developed an adequate factual record is not well taken, nor is their motion

to compel mediation. For that reason, the motion to compel mediation is denied.

ISSUE 3

740 Should Respondents Stults, Clinch, the DNRC, and MacIntyre be held in contempt?

741 The Tribes suggest that Stults, Clinch, the DNRC, and the DNRC's attorney Don

MacIntyre, are in contempt for willful disregard of our Clinch injunction and of our May 3 1,

2001, order. Section 3-1-501, MCA, defines contempt as disobedience of any lawful

judgment of the Court. The Tribes request a monetary sanction and an order requiring the

State to pay the Tribes' attorney fees.

742 The Respondents move to dismiss the Tribes' petition to have them held in contempt.

First, Respondents contend that that part of the petition does not meet the three-prong test for

exercising original jurisdiction, especially since the contempt issue presents issues of fact

which cannot be decided in this Court.

743 The Tribes contend that the issue presented by the contempt claim is a simple one.

They point out that in Clinch, this Court enjoined the DNRC from issuing new water use

permits on the reservation until the Tribes' existing water rights are quantified. In spite of

that clear injunction, the Respondents proceeded to issue a water permit to Lang. The Tribes

contend that the only factual issue is to determine which parties are responsible and that that

can be determined at a show-cause hearing before this Court.

744 While we disagree with the Respondents' contention that this Court would not

typically have jurisdiction to determine that a party is in contempt for willful disregard of a

15
judgment entered by this Court, we do agree with the DNRC that the Petition before us

presents factual issues better resolved in a district court. For example, Stults and Clinch

claim that they did not make the decision to proceed with issuance of the permits but that it

was made by then Governor Marc Racicot. They also claim that they acted on advice of

counsel and that this Court's decision in Clinch did not clearly and unambiguously prohibit

new permits for groundwater. MacIntyre contends that he gave reasonable advice to the

other Respondents based on his interpretation of our prior decisions. However, presumably

based on attorney-client privilege, he does not specify the nature of that advice. The Tribes'

attorney is not in a position to know the specific nature of that advice and neither are we.

745 While we disagree with the Respondents' contention that there was anything

ambiguous or unclear about the Clinch decision, we do agree that there are factual issues

relevant to the contempt issue and what, if any, sanctions are appropriate as the result of any

contempt that may have occurred. Therefore, the Respondents' motion to dismiss the petition

to have Respondents held in contempt of this Court's judgment in Clinch and our May 3 1,

2001, order is granted without prejudice. The matter should more properly be raised in the

trial court where venue is established so that evidence can be presented and factual issues

resolved.

746 Therefore, for the reasons previously stated, we hold, as we did in Ciotti and in Clinch

that the DNRC cannot determine whether water is legally available on the Flathead Indian

Reservation, whether surface water or groundwater, because the DNRC cannot determine

whether the issuance of permits would affect existing water rights until the Tribes' water

16
rights are defined and quantified by compact negotiation pursuant to 5 85-2-702, MCA, or

by general inter sese water rights adjudication. Accordingly, we once again order that the

DNRC not issue further water use permits on the Flathead Reservation until the Tribes' rights

have been quantified. This decision and judgment pertains to all water use permits.

We Concur:

Chief Justice

District court,ludge Marc G. Buyskk
sitting in for Justice Leaphart b,
Justice Jim Rice, concurring in part and dissenting in part.

747 For the reasons expressed herein, I concur with the Court's exercise of original

jurisdiction, concur with the conclusion that groundwater is included within the Tribes'

reserved rights, dissent from the enjoinment of the issuance of the Lang permit, and would

decide the contempt issue by holding that the charged individuals have not acted

contemptibly.

748 The use of water resources is undeniably linked to civilization's advancement and

indeed, its survival. However, for the many people who must live and survive on the

Flathead Reservation in Montana, for whom this issue is critical, this Court has brought

adjudication of water rights to grinding halt. More extremely, it has even barred the issuance

of provisional water use permits. It has rebuffed the Legislature's attempt to resolve water

questions in a manner that respects all water rights. It has barred state officials from

discharging their constitutionally-mandated duty to address water issues for the benefit of

Montana citizens. Its successive decisions in this matter, which are legally artificial and

disassociated with any practical reality, have created for our citizens a monumental impasse.

It is as if the Court believes that water has simply stopped flowing, and government can

suspend regulating, and people can postpone pursuing life's necessities, until all water is

either adjudicated or negotiated in the manner it deems appropriate.

749 The state officials named here have attempted, and must continue to attempt, as is

their duty, to administer the use of water in this state. They have attempted to do so in a
manner that does not violate this Court's decisions, and in accordance with the directives of

the Legislature, which has also attempted to respond in accordance with this Court's

decisions. However, the officials' actions have alarmed the Tribes, who understandably draw

the conclusion from this Court's decisions that water adjudication and permitting must cease

altogether, and therefore read malicious motives into the officials' actions, causing them to

make a remarkable contempt charge in a petition for original jurisdiction. That has been

followed by a series of accusations and counter-accusations between the parties.

Extraordinarily, Respondent attorneys have been relieved of their duties in this matter and

have been silenced in regard to issues with which they have been intimately involved for

many years, depriving this Court of their expertise in conducting its review. The State has

been forced to engage new counsel. How has this all come about? Who is at fault? The

answers to these questions are really quite simple. The crisis before us today, as is painfully

obvious, is the end result of none other than the decisions issued by this Court. We have met

the enemy, and it is us.

750 I concur with the Court's exercise of original jurisdiction herein. I agree that the

Tribes' reserved water rights are of statewide importance. To the consideration of this

requirement for the exercise of original jurisdiction, I would add that the Tribes' status as a

sovereign nation carries with it a presumption that legal issues which broadly affect the

people, resources or general welfare of the reservation are vital to the state as a whole, have

statewide impact, and are particularly suitable for the exercise of original jurisdiction.
Further, the exercise of original jurisdiction is compelled, and I would so grant, in order to

resolve the intergovernmental stalemate between State and Tribes over the use of water that

has arisen because of the decisions of this Court.

75 1 The Court's decision in Ciotti was based on a statutory interpretation of the Water Use

Act that was, at least, plausible, and to which I will defer, although clearly subject to debate.

See Ciotti, 278 Mont. at 70,923 P.2d at 1085 (Turnage, C.J., dissenting.) What was alarming

about the Ciotti decision was the result that the Court's statutory interpretation required: "a

shutdown of the water permitting process in Montana." Ciotti, 278 Mont. at 70,923 P.2d at

1085 (Turnage, C.J., dissenting).

152 Addressing this obvious calamity, the Legislature immediately responded to Ciotti by

enacting S.B. 97, therein revising the statute which the Court said had mandated its decision.

The Legislature removed disputedparagraph (l)(e) of 5 85-2-311, MCA, which had allowed

the Department to make a finding, after receiving evidence, that unappropriated water existed

which was in excess of Tribal rights. The Ciotti Court had interpreted the provision to

require proof that a proposed use would not interfere with Tribal rights, but because the

Department's procedure did not adequately account for Tribal rights, this burden of proof

could not be met until the Tribes' rights had been quantified. Thus, in response, the

Legislature clarified its intention that provisional water permitting should continue pending

finalization of the adjudication process, deleted the concept of "unappropriated water," and

created a broadly inclusive process to allow the issuance of provisional water permits if the
applicant could establish that water was both physically and legally available. The

Legislature, consistent with the constitutional mandate to protect all existing rights, included

Tribal rights within the definition of existing rights. In enacting these provisions, the

Legislature fulfilled its constitutional duty to protect all water rights within the state while

at the same time fulfilling its undisputed duty to the welfare of all Montanans to administer

water resources for beneficial purposes.

753 The enactment of S.B. 97 was a legitimate, and in my view, successful effort to cure

the very problems in the statutes which the Ciotti Court had cited. This Court, however, was

undaunted by the Legislature's effort to restore water permitting, and once again enjoined

that process in Clinch. The basis for the Court's holding was that the process of establishing

legal availability under S.B. 97 was impossible because (1) legal availability was

insufficiently defined, and (2) as stated in Ciotti, Tribal rights were not the same as state

water rights, could not be quantified in the same way, could not be protected, and therefore,

all water permitting had to be enjoined.

754 Clinch was erroneously decided. First, the Court simplistically faulted S.B. 97

because "'[l]egally available' is not defined . . . other than in the circular three-part test."

Clinch, 7 15. There is no precedent for the proposition that circuity in a statute's wording

is fatal to its intended implementation, and if that were true, many other statutes would have

suffered the same fate. The statute's definition of legal availability, which required an

analysis of all physical and legal demands, combined with its specific protection of reserved
rights, should have been found to be sufficient. Secondly, the Court offered what has

become its tired and ill-founded mantra, which, reduced to its essence, is this: because

reserved rights are different, they cannot be quantified. The Court apparently assumes that

it possesses expertise in water rights necessary to make such a determination without a

factual record, because it has never required a record to reach this conclusion. The statutes,

and the regulators who administer the statutes, claim these various rights can be determined.

Obviously, reserved rights are different from appropriated rights; but I will not be so bold as

to presume that this difference precludes a proper determination of those rights until I have

had the opportunity to review evidence on the issue. Indeed, the Court in Clinch was "in

effect, entering a permanent injunction without holding a factual hearing." Clinch, 7/ 29

(Rodeghiero, J., dissenting). Consequently, the holding in Clinch defied reality: "The

practical consequences of the majority's decision will be significant and will deprive some

Montana citizens of one of life's basic necessities, the use of water." Clinch, 7/ 33

(Rodeghiero, J., dissenting). On the basis of a proper statute, with its emphasis on preserving

all constitutionally protected rights, including Tribal rights, the Court in Clinch should have

allowed the Department to proceed. Its failure to do so set the stage for the conflict before

us today.

7/55 So, once again we find a similar question before the Court, this time specifically

addressing groundwater. Given the precedent presented by the Tribes on the issue, I concur

with the Court's conclusion that groundwater is included within the Tribes' reserved water
claims. But that issue is of small consequence here. The larger issue is that the Court is

attempting to dam up the entire process until it gets the result it wants. The Court is fooling

itself if it believes that this decision has plugged the final leak in the legal dike. Water will

simply not stop flowing, and Montanans will simply not stop needing it. The demands of

humanity will bring the issue back.

756 I would not hold the officials involved in this matter in contempt for attempting to do

their statutory and constitutional duty in a manner that was, arguably, consistent with this

Court's prior decisions. I would expect nothing less from creative officials and zealous

lawyers who were required to balance duty and precedent.

757 I would decline to enjoin the issuance of the Lang permit. Doing so would bring to

the forefront a critical issue, long dormant, regarding jurisdiction. The Tribes have reserved

this issue for federal review. The federal court system is the most appropriate forum for

resolution, and should have been addressed long ago by the federal courts. In this regard, I

agree with the following portion of Justice Leaphart's concurring opinion in Ciotti:

The federal courts, however, have failed to reckon with the fact that the federal
question (whether the tribes are constitutionally exempt from the Montana
Water Use Act) presents a threshold question of jurisdiction; i.e., whether the
state of Montana has any jurisdiction to apply its Water Use Act in the first
instance. That fundamental question of state jurisdiction must be addressed
first. . . . It is the state court which should be awaiting resolution of the
jurisdictional question in federal court, not vice versa.

Ciotti, 278 Mont. at 65, n.1, 923 P.2d at 1082, n.l (Leaphart, J., concurring). The federal

courts have placed us in a difficult position, giving us enough rope to hang ourselves and
thereby contributing to this mess. Their help in getting us back out would be appreciated.

The Tribes should not be allowed to continue to "run with the hare and hold with the hounds"

on this issue. Ciotti, 278 Mont. at 66,923 P.2d at 1083 (Leaphart, J., concurring).

758 Understandably, the Tribes would be concerned about the issuance of a permit, even

a provisional one, that could potentially impose upon their rights. However, they would not

be without various remedies, only one of which is the federal courts. The same cannot be

said for Mr. Lang. Despite its professed concern over the provision of remedies, the Court

has afforded him, and the many others like him who live on the reservation and need to use

water, no remedy whatsoever. Despite statutes providing for the deliberate consideration of

Lang's application and all other water rights that may be affected thereby, he and many other

Montanans have been deprived, by this Court, of the opportunity to proceed in any manner.

That is simply regrettable.

Chief Justice Karla M. Gray, concurring in part and dissenting in part:

759 I agree with Justice Rice's concurring and dissenting opinion except for those portions

discussing Ciotti.
Justice James C. Nelson specially concurs:

160 I concur in our Opinion. The rules of the trilogy of State ex rel. Greely v.

Confederated Salish and Kootenai Tribes (1985), 219 Mont. 76, 712 P.2d 754, Matter of

Beneficial Water Use Permits (1996), 278 Mont. 50, 923 P.2d 1073 (Ciotti); and

Confederated Salish & Kootenai Tribes v. Clinch, 1999 MT 342, 297 Mont. 448,992 P.2d

244, could not be more explicit: (a) The Montana Water Act, Title 85, Chapter 2, Montana

Codes Annotated, is adequate to adjudicate Indian reserved water rights only to the extent

that it recognizes, preserves and protects the fundamental legal differences between those

rights and state appropriative rights; and (b) because of these fundamental legal differences

the State may not process or issue beneficial water use permits on the Flathead Indian

~eservation
until Tribal water rights are quantified by a compact negotiation or by a general
f

inter sese water rights adjudication.

76 1 These rules do not originate in rocket science: Indians own their reserved water rights;

those rights are superior to state appropriative water rights; to date those reserved water

rights have not been quantified as to amount or priority on the Flathead Indian Reservation;

therefore, the State cannot grant to some third party a right to appropriate or use water that

the State may not own. Furthermore, and like it or not, unless Congress or the United States

Supreme Court changes the laws and federal jurisprudence in which this Court's trilogy of

cases is grounded, no amount of statutory finessing or mental legerdemain is going to change

these principles.
762 Indeed, the Department of Natural Resources and Conservation (DNRC) was put on

notice that it had lost the permit-issuing battle as early as 1987, two years after Greely, when

District Judge Gordon Bennett stated in United States and Montana Power Co. v.

Department o Natural Resources (Don Brown) (D. Mont. June 15, 1987), No. 506 12:
f

[there is] only one way to determine if an unappropriated water right exists in
a source of supply: decide how much water is available and how much of it has
been appropriated. This obviously requires quantification of existing rights.
There is, likewise, only one way to determine whether the water rights of prior
appropriators will be adversely affected by additional appropriation. You must
begin by determining what the water rights of the prior appropriators are. In
either case, the need to determine existing water rights is inescapable . . . .

Ciotti, 278 Mont. at 62-63, 923 P.2d at 1081 (Nelson, J., concurring).

763 Unfortunately, Judge Bennett's legally correct, common-sense conclusion was either

forgotten or ignored when, in 1990, DNRC's director determined that the agency had

jurisdiction to regulate any "surplus water" on fee land even though Tribal reserved water

rights had not been quantified. Ciotti, 278 Mont. at 53, 923 P.2d at 1075. The obviously

glaring flaw in this conclusion is that, until Indian reserved water rights are quantified, no

one knows whether there is any "surplus water" to regulate. For all any of us know, there

may be no water left to appropriate on the Flathead Reservation, because the Indians own it

all.

764 That the Legislature and Executive branches do not seem to get it, is disappointing,

though not particularly surprising given what presumably is intense political pressure for

non-Indian residential and commercial development on the Flathead Reservation. That,
 u - b

however, does not justify the apologetics for those branches of government and the

inflammatory rhetoric that characterizes the dissent--an opinion which, uncharacteristically

for its author--is totally devoid of any reasoned legal analysis.

165 If, as the dissent states, this Court's trilogy of cases is "legally artificial," then the

bench, bar and public are owed a legal explanation and analysis as to why that is so. If, as

the dissent postures, there is a "crisis" and "calamity" of "monumental" proportions

threatening "civilization's advancement and, indeed, its survival" on the Flathead

Reservation, then, to be fair and intellectually honest, the dissent should be prepared to

demonstrate unequivocally why this Court's prior opinions and instant decision are legally

incorrect and how we have erred in applying the clearly established legal principles and the

extensive body of federal law and jurisprudence that govern Indian reserved water rights--

principles, law and jurisprudence which, incidentally, this Court did not create, but is,

nonetheless, constitutionally obligated to follow.

7/66 As written, the dissenting opinion will accomplish little more than provide sound bites

for media; hrther strain relations between Indians and non-Indians and the Tribal and State

governments; and provide fodder for those who, as a matter of course and in furtherance of

their own misguided agendas, misrepresent to the public the law and this Court's opinions.

More to the point, instead of railing against settled law, the dissent's frustration might be

more profitably directed towards encouraging the State to put its unqualified efforts into

quantifying the Tribe's reserved water rights using the legal tools provided, instead of
constantly trying to devise statutes to thwart those rights.

7/67 I concur in the Court's Opinion.

I Y
.. u
.

Justice