In Re the Adjudication of the Existing Rights to the Use of All the Water

No. 00-100 iS THE SIJPXEME COCRT OF TiiE STATE OF ?vI.:OUTAXA IN THE MATTER OF THE ADJUDICXTLON OF THE EXISTIXG RIGHTS TO 'THE USE OF .ALL TfiE W'ATER, BOTH SURE:ACE AND UNDERGROUND, WITHIN THE MISSOURI RIVER DRAINiZGE AREA, IUCLUDING ALL TRIRUTARlES OF TIIE lL1ISSOURl RIVER IK BROADWATER, CASCADE, JEFFERSON AUD LEWIS AND CLARK COU APPEAL FROM: The Montana Water Court, Honorable C. Bruce I,oble, Chief Judge COUUSEL OF RECORD: For rippellant: G. Steven Broun (argued), Attorney at Law, Helena, Montana Robert I .Lane, Montana Department of Fisli, Wildlife 2nd Parks, ; I~Ieiena, Montana For Respondent: Honorable C Bruce Loble (argued), ChlefWater Judge; Colleen Coyle. Water Master, Montana Water Court, Bozcman, Montan- For Alnici Curiae: David W. DePuy (argued), DcPuy Law Finn, P.C., Livingston. Montana; William L. Madden, Jr., Willianl L. Madden, Jr. P.C., Bozeman, hfontana (Estate of Eva S. DePuy) Lois J. Schiffer, Assistant Attorney General; Jeffrey Dobbins and Mark R. Maag (argued), Attorneys, United States Department of Justice; Alexandra I.. Davis, Office of the Solicitor, United States Dcpartrnent of Interior (United States of il~nerica) Laura Zlenier (itrgued), Borcman, Montana (Montana Srate Counc~l of Trout Utrln~lited) John E. Bloo~nquist(argued), Doney, Crowley, Bloomquist & Ccla, Flelena, Montana (hlontaiia Stockgrowers Association) Senator Lorents Gros!ield, Big T~rnbcr, Montdna (Pro Se) Argued and Subm~tted Mav 22,2001 Filed: Justice W. William Leaphart delivered the Opinion ofthe Courr. "1 The klontana Dcpal~ment Fish liriidiife anti Parks (DFWP) appeals a I-ulingby the of Chief Water Judge 011 five pre-1973 water rights claims in the hlissouri River basin. The t h c claims are based on dners~ons uater for purposes of fish. \\ildltfe or rccrcation 7 he of Water Court rullng refers to Iit the ;Ifcztto- i$f)emrbonl ilrairtage ili-eii (1 98X), 234 Mont 331,766 P.2d 228 (Bean Lake) in remarking on the potential inlalidity of the claims. This C'ourt invited subntission of i~micus curiae briefs and received briefs from: E.state of Eva S. Depuy: Montana State Council of Trout Lnlimited; Montana Stoekgrovrcrs Assoelation: Senator L.orcnts Grosfield; and the United States. Only DFWP can represent citizen intcrcsts in the adjudication proccss and, in light of our decision in B ~ N Lrrke, DFWP prcsenily M asserts only those fish, wildlife and recreation claims that involve diversions. To provide gu~dance the ii'ater Court. me must reso1t.c the Remrr Lake confus~on address not onlv to and the question of whether fish, wildlife and recreation uses are recognized as beneficial uses for appropriation purposes, but also whether a diversion is required for appropriation purposes *a2 We restate the issues as follows: f Was Beiziz Lake correct in its holding that "under Montana la\'? before 1073, no appropriation right was recognixed for recreation, fish and wildlife, except through a Murphy right statute?" II Does the Water Court's use of the "Beatz Lake remark" violate the Suprerne Coun's Water Right Claitn Eramination Rules 5.11 and S.IV(l)(a)'? Jurisdictional Issues 3 ,d- The i$7a'aler Court asscl-rsthat the i>FTt'F's appeal is procedrrraliy dcfcctl\e. The Water- four%points out that a Master's R c ~ o r was issued with regard to the five DFWP claims t involved. The Master's Repon denied the DFWP's requests, and aftcr the ten-day objection period provided for in Rule 53(e), M.R.Civ.P., and Claim Examination Rule 1.1114) lapsed> witliout any objection from DFWP, the Chief Water J ~ ~ d adopted the Master's Repot*. The ge Chief Water Judge correctly points out that when objections are filed, the Water Court researches the issues raised and issues an extensive written opinion which, in turn, fdcilitates review by the appellate court. Accordingly, the Water Court urges this Court to dismiss this appeal or; in thc alternative, corrvcrt the appeal to a petition for declaratory relief or supervisory control. DFWP asserts that strict compliance with Rule 1.11(4) of the Claim Examination Rules is not necessary here since it has consistently and repeatedly objected to the Water Court's insertion of its Bean Lake remark and that the Water Court has adopted an unwavering policy of rejecting I>FWP's arguments concerning this policy cven Lvhen DFWP has filed objections to the master's reports. Nonetheless. DFlVP indicates that it has no objection to the Court's reclassifying this appeal as a petition for declaratory relief or supervisory control. 74 1 While we agree bvith the LVater Court that compliance with Rule 1.11(4) of the Clainr Examination Rules i s critical to effective appellate review, we determine, given that our decision i n Rcirti Lrrke is the genesis of the alleged confusion which tltc parties seek to resolve, it is appropriate that we trcat this matter as a continuation of the 1986 Bean Lake 3 controversy wbcrcin we excrciseci supervisory control. Zlccordingiy, as B-cdid in iieclir Liliie, \rc acccptjurisdictioa and cxercise our power of general supcwisory control over. the Water Court, pursuant to Artrele 1'11, Sectton 2(2). of the Montana Constttution and Rule 17. M.R,App.P, Taking jitrisdiction no\&- these purely legal issues will resolve confusion in on oui casc lax. pronlote jtrdicial eeonomq, expedite dctcrminat!oil of existing water rrghts and assist in avoiding protracted litigation. McDonczld v. State (1986), 220 Mont. 5 19,524,722 Facts and Procedure T5 This case i~~volves pre-.luly 1, 1973, water appropriation claims in the Missouri five R~ber DTWP filed the fivc claims based on dkersions for fish, mildlife andrecreatron bas~n. purposes for adjudlcatron rn tile Water Court The Water Cour-t ~nscrted the abstracts for in the claims a remark (hereafter "Bcntz L I I X ~remark") stat~ng: There is a question as to the validity of this claimed right. 111the Matter of the Dearborn Drainage Area, 234 Mont. 343 (19888) (the Bean Lake case) the Montana Supreme Court stated: "it is clear therefore that under Montana law before 1973, no appropriation right was recognized for recreation, fish and wildlife, except through a Murphy right statute." 0 Without ruling on any issue, the Water Court's renlark highlights the conflict in our casc law regarding whether appropr~at~ons water for fish. a rldlife and reereatton purposes of are val~d under the prior appropriation doctrine before 1973 17 1 DFIVP objected to the ~nsertlon the remark and requested that thc Water Court of remove the remark from the abstracts ofrhc five claims. Follo~ving submission ofbrici's and 21 hearrng, the Water Court denred 11F7U'l''s 0bj~Ctton~ rctdrncd the Rrnn Lrrkr remark and 1 iblaster issued a ""Repol-tand .~vlcmorandum Order" finding illat tile five claims The \%~ter and fcil within the pararnciers ofthe Beiiil Lrike decision and that therefore thc inscrrion of the Berrir Lake remark was appropriate. DFCVP did not object to this Report, and the Chiefilrater Judge subsequently adopted the Master's Report 8 After repeatedly objecttng to the tnsert~onof Bean Lake remarks and rccel-Llng consistent denials in the \Vater Court, DFCVP appealed to this Court for resolution of the conflict in our case law as to whether appropriations for fish, wildlife and recreation uses arc valid water rights under prior approprixtion law. The Water Court objected to appearing as respondent in this case, and this Cour-t issued an order that the Water Court, as author ofthe Rciin Lake remark, was a proper respondent in these proceedings. Given thc on-going and ctiriite state-wide significance of the issue, we invited all interested parties to submit nrriicrt.~ briefs DISCUSSION I Was Kenr~Lalie correct in its holding that "under Montana law before 1973, no appropriation right was recogniled for recreation, fish and \vildlrfe. except through a Murphy r~ght statute'?" Water Law in the American West: 'i'he Doctrine of Prior Appropriation '0 Miners in California developed a water use system as an altcmative to the riparian water system prevalent in England and the eastern United States. While riparian5 allowed owners of land abutting the water source to control it, the more arid climes of the American West required a different approach. Priot-appropriation, adapting flexibly to the needs o f a developing society, allowed diversion to a distant location and simply required use of the 5 water for a beneiiciai purpose. "Kestern states adopted ihc miners. customs through both court decisions and codification, and the doctrine of prior appropriation became the iaw of the western states. A. Stone; Selected As~~ecrs of'Mont(ztrila Mirter Liiw 7 (1978j; Christine A. Kiein, l%e Cor~.stituriotzal .Llt%tltoloL~,~ qq/'I.VestertzIYr~ter L,ai,t-. 14 Va. Envtl. L..J. 343?347-48 (1 995). 710 The common law elements of a valid appropriation are intent, notice, diversion and application to beneficial use. However, in Montana, as in many western states, the flexibility of the prior appropriation doctrine has allowed acquisition of the right to use a specific amount of water tlirough application of the water to a beneficial use. A , Stone, ;\,fontaria Water La!? (1 994). Judicial opinions and scholarly comnlcntators have repeatedly stated the rule that application to a beneficial use is the touchstone of the appropriation doctrine. See, e.g., PI. Stone. Selected Aspects of i\/lorrtczna Water Law 30 (1978): Thonra.r v. Grrir(zzirl (1883), 6 Colo. 530. 533 ("[t]he true test of appropriation of water is the successful application thereof to the beneficial use designed, and the method of diverting or carrying the same, or niaking such application. is immaterial"). Bean Lake 71 1 Bear1 Lrrke involved a claim for inlalte water rights for fish, wildlifc and recreation purposes in a natural pothole lake. In Ilecin Lmlce this Court stated, "[ijt is clear therefore that rinder Montana law before 1973, no appropriation right was recognized for recrcatiott, fish and wiidiife, cxccpt through a Murphy right stature."! ileltrr Luke, 234 hlciiont. at 343,755 P.2d at 236. 312 The Beati Lukc decision appears to be inconsistent \vith earlicr case law i n which the Court recognircd appropriations for fish. wildlife and recreation. See, e . g , Ostles Livesrock G. 1:. CVurrerl (1936). 103 Mont. 284, 62 P.2d 205, and Psi-adke Rainbou:~v. Fish iirtd Ciutne Cotnrrrission (1966), 148 Mont. 412,421 P.Zd 717. In holding that no appropriation right was recognized for fish, wildlife and recreation, the Bear? Lalw Court ignored Osrzes and misread Paradise Rainhorvs. The Ost~cs Court ruled that an earlier diversion of water, even if used only to maintain a swimming pool or fish pond, had priority over a later appropriation and stated, "it is not clear that such a use [slrin~rning pool or fish pond] bvould not be a beneficial use and hence the basis of a valid appropriation." Oaze.s, 103 Mont. at 302, 62 P.2d at 214. The Bean Lake Court neglected to discuss or ackno\vledge the 0.snes precedent. 1/13 In Pnt-c~di~se Kuiriha~t~s, Court again recognized the diversion of water for fish the ponds as a valid appropriation of water. The Pcrrrtdise Ritirtboir:~ holding explicitly validated a diversionaly appropriation for fish. In Rerrri Lake. however, the Court concentrated solely on the P-'crrcidiseNrrlrzho1v.s Court's un>~illingness, tinder the peculiar facts of that case; to z. I l-rc ! 960 klontana L,egislaturc created a procedure by which the Fish and Game 3 Comit~issioii could appropriate instream flows for fish, wildlife and reereatio~i purposes on certain designated streams. Section 89-80!, RCM (1947). prorecx rrin instrea~nfish and rccrcaiion right and, conscyucntiy, ovcriooked the flv-t that in Poi-czdise Ruinhoit.~ Court upheld a diversionary appropriarion o f water for fish. the 714 The majority of briefs sub~iiitted this case concur that the Beat! Lake decision is in fraught with internal inconsistencies. In Recin Lake. the Court acknowledged that beneficial use is the touchstone of a valid appropriation right. Reart Lake, 234 Mont. at 340,766 P.2d at 234. The Court noted that Article IX, Section 3, of the 1972 Montana Constitution recognized recreation as a beneficial use and accepted "as given that the activities of the DFWP in stocking Bean Lake: maintaining the fishery resource. . . coupled with the general public use of Bean Lake thr the purpose of recreation, wildlife and fishing constituted a beneficial use of the \vaters within the meaning of the appropriation doctrine." /3ean Lake, 234 blont. at 339, 7hh P.2d at 233. 715 In seeming conflict with these findings that (1) beneficial use is the test of a valid right, and (2) fish, wildlife and recreation uses are beneficial uses, the Court concluded that "no Montana legal authority, deriving from common lax?: or statute, acknowledged that recreattonal, fish or wildlife uses, eten though benefic~al, - gave rise to any water rights bv Etpproprtatron under Vontana law" and therefore "under Montana lac\ before 1973. no appropr~at~on \\as recogni/ed for recreation. fish and rn ~ldlife . . ." Bean Luke, 234 rlght . .4. Did the Bean Lake Court correctly hold that prior to 1973 Montana did not recognize water rights for recreation, fish and wildlifc purposes under the appropriation doctrine? 1 in Becitz kizke, the Court citcd ai~ii discussed iJaii:r/idise il/iirzhoiz.;,in which this Court specificall> recogr~izcd a vsilid appropriation a diversion of water for fish propagation. as There is no hint in the Heiriz Lake decision of an intent tci ovcrrulc Pi;rildi.se Rairrhiiw.9. Beu!: Lake is no model of clarity, ignores 0stle.i altogether. fails to appreciate the ultimate holding Rriir~bo~vs in Pnrilili~se precedent and incorrectly states Montan;i law. Prior to 1973?Montana explicitly recognized water rights for fish, wildlife and recreation uses. Montana was not alone in recognizing as bcncficial the use of water for fish, wildlife and recreation purposes. See, e.g., Fcrden v. fIz~hht.ll(Colo. 1033), 28 P.2d 247,250-5 1 ("lilt is self-evident that water diverted and cmployed for the propagation of fish is devoted to a useful purpose, and all of the parties completed their appropriations of water by its application to the bencticial use designed"); State e s rel. Sttrte C;nnie (ilmnzi.isiorr v. Neil River I.'uilej~C b . ( N . M. !945), 182 P.2d 421, 428 ("we arc unable to find authority, or justification in reason, to support the claim that the 'beneficial LISC' to which public waters, as defined in this and other jurisdictions, may be put, does not include uses for recreation and fishing"). 117 1 To the extent Reun Lalre suggests that fish. wildlife and recreation are not beneficial uses, it simply misstates Montana precedent and is hereby overruled. We next address ileczi? Luke correctly held that non-diversionary water rights for fish, jvildlife and ~vhcther recreation purposes were not recognizeil in Montana under the doctrine of prior appropriation. F3. Does Aemrz Luke correctly hold that claims for the lion-diversionary use of water for fish. wildlife and recreation are not recognized in :vlonta~la law under the prior appropriatioli doctrine'! "8 ; in arguing this matter to thc Court; I1f;WP has strenuously contendecl that, since the fi\-e nater right claiins .*\-hich arc the subject o f the Department's appcal ail involve diversions of water. the Court should correct the language i n Bctrn Lakc as it applies to diversionary rights but should leave the llectn Lczlce holding in tact as it applies to non- diversionary claims. The dissent also argues that the Coui?, in addressing non-diversionary uses, is going outside the issues and shouid confine itself to diversionary rights. We would bc inconsistent with the fact that the Necliz determine illat such a restricted clarificatio~~ Lake remark R hich has given rise to this appeal is bang applied by the LVater Court to both pre-July 1. 1973, cla~ms. that the lica~i diversionary and non-di~ers~onarj and Lake decision itself arosc out o f LIFWP's claim for an instreain, non-dii-ersionary claim to ihc water in a natural pothole lake. Finally. in the Renr~Lake paragraph which is the primary source of the present confus~on. Court spec~fieallyescherned an;v reliance on a d~st~nction the betmfeen diversionary and non-diversionary claims when it concluded "[w]hatever the merits of the argument, the DFWP and the public could not habe ~tltended an lack of d~vers~on appropriat~on %here none was recogni/ed by lam. and for the same reason, adverse appropriators could not hale had notice of such a claim."' lien// Lc~ke. 234 \font. at 343,766 T h e Court further exacerbated the confusioi~ when it issued a sccond decision on the Bean Lake matter, ilirrfter ofDenrborn Dr-rrinage Areu (1 980), 240 Mont. 39, 782 P.2d 8% (Beniz Lake II), in \vhich it rejected the Monlana Stockgro\\.ers Association's request for attorneys fees for its role in the original Recrn Lrrlze case. In dictum, the Court purports to sunlrnarize the Neiliz Laice holding, and, in doing so, seems to recognize a distinction between diverted and non-diverted rights. The LVater court ruled, and we affirmed, the Department had no appropri- ation right in Bean Lake predating 1973, because before that time no such P.2d at 236. Thus. given the facts of Uecrri i,nke9 the language ofthc ijeair Lake decision and the bi-oad application of tile resulting iiecur Lake remark, it is necessary that we address the question of l%licthcr thc Kciirz Lirke dec!ston conectls liolds that claims for the non- diversionary use ofwatcr for fish, wildlife and recreation are not recognized in Montana law under the prior appropriation doctrine. I After the Reun Luke Court concluded that prior to 1973, Xlontana dtd not allo\% appropr~atlonof Liatcr for fish, vvildlrfc and recreatron purposes, the Court essentially skipped the traditional appropriation analysis. Rathcr than evaluating whether DFWP had intended to appropriate water and whether IIFWP provided notice of its intent, the Court simply stated that because Montana did not recognij-c water rights for ikh; \tildlifc and recreatron purposes, DFWP could not hahe intended to approprrate w ater for those purposes, and thus adverse nater users could not hate had notice of any such intent. It 1s unclear from thc opinion itself, whether the Court denled the appropriation for Bean Lake because there Tvas no drverslon or because it found there was no notice of~ntent apptoprlate. To resolxc to the confus~onengendered by Bcnn L,nke, we now determine uhethcr a baltd appropriation of water may be established without a diversion where no diversion i s physically necessary for the ~ntcndedusc. right was recognized for recreation, fish and wildlife. Before 1973, some form of diversion was necessary for an approprialictn. Because the right asserted by the Department lacked rhc elements of"divcrsion, intent and notice," we held that the Department, for itself or for the public, had no valid water right which predated the 1973 Water Use Act. Hean Lake 11, 240 Mont. at 41, 782 P.2d at 899. ":O Vv~hilemost traditional uses necessitated a diversion of water for application to beneficial use. thc appropriation doctrine's histoi-y o f flcvibiiiiy and practicality support a holding tl~ata diversion is not reauired where thc application to beneficial use does not physically require a diversion. Common sense rebels against a rigid diversion requirement that would refuse to recognize a11acknowledged bc~zcficialuse simply because application to the use does not require removal from and depletion of the water source. 11 accordance 1 with the doctrine's flexibility, we find that a diversion is not a requisite elernent of an appropriation when it is not a physical necessity for application to a beneficial use. 2 1 More than one commentator has warned against the strict adherence to traditional elements, such as diversion? when the clement no longer serves its original purpose. These scholars also note that beneficial use is the only essential element of a valid appropriation. See, e g.. Tarlock, :3pproprlatio/z For Iil.\trennl Floit. Muintennnce: -4 Progress Report or1 ",$'ei.~. P~lhlicC ~ tern Water Riglztr, 1 978 Gtah " J L. Re\ . 2 11, 22 1 ("Most \\cstern water experts agree that the actual diversion requirement serves no function that cannot be served by other water law doctrines and statutory procedures. Thus the real issue is whether these uses are beneficial"); Christine A. Klein, Tlze Coa~fitz~tio~zal Mythology of lVesterrl Water Lrrlt~, Va. Envtl. L.J. 333,35 1 (1995) ("Rigid adherence to the diversion requirement has 13 increasingly restricted the traditional flexibility of the ideas of beneficial use and waste. Although appropriation to beneficial use is the true measure of a water right, diversion has frequently bee11substiuuted as the constitutional require1nent"j. 712 traditionally servcd ifrial purposes-providing i,:ildcr prior appropriation. a divcrsio:~ notice o i a USCT'S intent to approprirrlc tl-alcrl and defining rhc c?ctc:ll of the use. 111 bv\jeui r Caitleroi? i1922j.04 Mont. d04.2 I 0 P. 761. this Court cxyiaincd that inleiit to ilppropr~ate is to be determined from the specific facts and circurnstanccs pertaining It is argued by defendants' learned counsel that no intent to make an appropriation from Mill Creek on the part of [plaintiffs' predecessors] is shorn-n, and therefore the adjudication is not warranted. . . . Intent to appropt-iate will be presumed fiom tiiesefacts, showing, as they do, diversion and use of Mill Creek waters for irrigating purposes. A cluiiiliitrt S itztent at tlie time o nppropriatiotz must he deter-mined by his act and by sr*rrourzdi~~g f circ~~nrstances, actt~aland contemplated use, and the purpose thercof. its (Toofley 1,. C(rrrzpphel1, 24 Mont. 13, 60 Pac. 396.) Actual diversion and beneficial use existing or in contemplation constitute an appropriation [citations omitted], and,fronz this evidence it is plain that water from Mill Crcek was in fact appropriated in the spring of 1867 by [plaintiffs' predecessors], as found by the court. And the change in the point of diversion or place of use did not affect the appropriation. CVileat, 64 Pviont. at 501,210 P. at 763 (emphasis added). 723 In accordance with the historical flexibility of the doctrine ofprior appropriation. the IVhezeclt Court held that although rntent could bepreslln~ed from actual d~vcrston, ~ntent could be proven through other facts and surrounding circumstances. Sim~larly. Bean Luke, the In Court noted that d~versioncould proklde notice or proof of an intent to appropnate. Bea~r Lake, 234 Mont. at 339. 766 P.2d at 233. 'These decisions do not require a diversion for proof of intent. To the contrary. the opinions suggest that although a diversion may provide proof, intent is the essential element and may bc proLen through means other than a diversion. In other words, a diversion, although sufficient to prove intent, i s not necessary. qj24 Decisions from this Court have not consisieniiy reqiiircd di~ersionsfor ivatcr indeedl dcspiie die fact rhai most traditional bcncficinl uses of ~lvat,ir, appropi-iatior~s, such as mining and irrigation, could not occur l,',ithout a diversion, Montana has spccificaliy recognized appropriations of u-ater without diversions where no diversion was required for (l02Gj, 77 Mont. 220,250 P. 963 the intended hencficial use. See, e.g., Iloniclz v. .Joltt~soi~ (appropriation recognized for instream resewoir); Axfell v. M.S. Cotist~l1irrg,1998 IZIT 64; 288 Mont. 1 50?955 P.2d 1362 (dorncstic i:se recognizcd without a diversion). Those cases that do suggest that a diversion is an essential element of an appropriation i~rvolvc uses that, of practical necessity, require a diversion for the application to beneficial use. See, e.g., 210, 220,221 P. 71, 75 (diversion by ditch for use in FV(~t*i-erl Setiecizl(1924), 71 Moi~t. v. mining and irrigation); Sherlock v. Cirz.rives (1938), 106 Mont. 206, 216, 76 P.2d 87, 89 (diversion by pipes and flumes from ditch for irrigation and domestic use). 725 .Instice Rice in his dissent states that, in recognizing instream uses prior to 1973, we are rewriting hlontana history. Justice Rice's protestations to the contrary. Montana has a legendary history of cattle and sheep ranching. No doubt Montana's stockgrowers would be surprised to learn, as the dissent suggests, that Montana law would not have rccognizcd a right to Xvater stock directly from a stream. lake, pond or slough w~thouta man-made d i ~ e r s ~ o nJust~ceRice's assertion that Montana law 1s "monoltth~c" and absolute tn . requiring a diversion as a prerequisite element for all pre-1073 water appropriation claims is belied by the fact the Montana Legislature recognized that pre- 1973 claims for stock use and individual use bcrsed l q ~ o r zitistrccinl /low were valid. Such non-diversionar-y, instreanr 14 clainls were exempted from themanciatory filingrcquirement ofTiilc 85, Chapter 2. ('"~vcrq . . person . . . asserting a aciini to an existing righr to the lrsc ol'\xiatcr ansing prior t i ~ i i y o I. i97;3_is ordered to file a statement of claim to that right with thc departmertl no later than June 30, 1083. Claims for stock and individual as opposed to municipal doniestic uses b(xscd 1lpo11 irrstt-ecmz,flo,v or ground lvater sources are exempt kom this requirement; however, claims for such uses niay be voluntarily filed." Section 85-2-21 2, MCA (emphasis added)). 726 Thc fact tlrat there arc no Montana decisions establishing such an instrean1 right merely reflects the fact that that issue was not litigated, not that such a right was beyond the pale of Montana prior appropriation doctrine. See T.l'ilhlire v. Billitzgs etc. F'oiver C'o. ( 1 909), 38 blont. 1, 101 P. i68, in \vIrich Wilhite brought a nuisance action against thc rnainteiiancc of a dam on the Yello~vstoneRiver which caused the river to overflow somc of LVilhite's land making it '.almost impossible for plaintiff to reach the river and water his livestock or to obtain water for 11ousehold purposcs . . . ." CViIlrite, 39 Mont. at 4, 101 P. at 168. This Court affimied the injunctive relief but renianded for a narrowing of the terms of the injunction. In Bear1 Lake; cve acknowledged, "[ijt cannot be disputed . . . that there were beneficial uses for which appropriation rights could be obtained which would not require diversion of the waters." 234 Motit. at 340, 766 P.2d at 233. Given our history, there is every reason to believe that had tlie issue arisen, Montana would have followed the lcad of Nevada and ltcld that no ditclt, dam reservoir or other artificial means was necessary for watering cattle. If there must be a diversion with intent to apply water to a beneficial use: ihen "'the drinking by cattle consrltutcs a diversion, [and] the ncccssary intent must be that d27 The non-recognltton of lnsheain rises prror to l 973 nould Iikcwtse have been a stlock to Montana's early loggers and railroaders mho used Montana stream Ron s to float logs and CoalitionfbrSfr.eirin Access v. Cur-run(1984), 210 Mont. 38,44, railroad ties. .See ,\loi~ta~lii 682 P.2d i03; 166, where we recognized that the Dearbom River was used in 1887, two years before Montana statehood, to float approximately lO0,000 railroad tics. Then in 1888 axid 1889, there \%ereone or two log drives per year donn the Dearbom thus satlsfylng the federal test for navigability for title purposes. The Court then proceeded to analy/e wltether public recreational usc and tishing make a stream na\ igable for "use" as opposcd to titli. I '~ hcj quoted extensively from an 1893 decision ti-om Minnesota which rcasoned that navigability for use should not be llmited to commerc~alusage. Rather, the concept must lnclude noncominere~al uses such as "boating and sailing for pleasure." Many, if not the most, of the meandered lakes of this state, arc not adapted to, and probably will never be used to any great extent for, com~nercial navigation; but they are used--and as population increases, and towns and cities are built up in their vicinity, will be still more used-by the people for sailing, rowing, fishing, fowling, bathing, skating, taking water for domestic, agricultural, and even city purposes, cutting ice, and other public purposes which cannot now be enumerated or even anticipated. To hand over all these lakes to pril-ate ownership, under any old or narrow test of navigability, would be a great wrong upon the public for all time, the extent of which cannot, perhaps. be now even anticipated. . . . 728 We also quoted from a Wqoming dectston as to the pubhe's use of state waters ir~especti\reof the ow~~ership the bed or chanilei of waters. and of irrespective of their navigability, the public has the right to use public waters of this State for floating usable craii and that use ma:; nut be inicrfei-ed wit11 or curtailed by any landowner. it is also the riglrt of the public \vhilc so lawfully floating in the State's wliters to lawfully hunt or fish or do any and all other things which are not otherwise made unlawf~~!. Drq' v. Ariilsft,o-ong(Wyo, 1961j, 362 P.2d 137, 137, quoted in ;Clo/zt[lnizCoillitio/r,2 i O Mont. at 5 1-52. 682 P.2d at 170. e29 I-laving noted n ~ t h approla1 the M~nnesotaand Wyom~ngprecedent, me quotcd Article IX, Section 3(3), of the Montana Constitutiotl, which statos that all waters within the boundaries ofthe 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. Relying on this constitutional provision and on the public trust doctrine dating back to statehood, the Court concluded that navigability for purposes of detemtining public "use" rights is determined by the capability of m e of the \% ater for recr2at1onal pulTnses In sum, we hold that, under the public trust doctrine and the 1972 Montana Constitution, any surface waters that are capable of recreational use may be so used by the public without regard to streambed ownership or navigability for nonrecreational purposes. iblontancl Coalition, 210 Mont. at 53, 682 P.2d at 171. 7'30 Tl?c dissent queries "how this I984 decision, interpreting the 1972 Constitution could have established in-stream water rights for prior years." She dissent conveniently ignores the fact that thc Court, in ;Gloittana Coiilltzon, ~nterpreted only the 1972 Const~tutton, not but also the publ~ctrust doctr~nen h ~ h dates back to Montana's statehood Lnder the Constitution the public trust doctrine, thc public has an instream: non-diversionary right 17 to the recreational use irfthe Stare's navigable siirfacc waters. This holding: ofcciurse, allays the ciinccnir that ?"nCourt cxprcssed in Pai-iidise i?:riiiiioiis \;-iicrc tiic Fish arid Ciamc Comtnission contended that the public had a prior right to the use of the strean? since the publrc had used tlic creek as a fisltlng stream and natural fish hatchcp The Court statcd that it could not yield to this coi~tentioit a since "[s/ucl~ public riglit itas never been dcclared in the case law of this state." Prrrcrdise Kuir~hoirs.148 'Llont. at 419, 421 P.2d at 721. The Court in itloiitnrrii C:oalition fillcd that void and declared that the public docs l-iave a right to recreational use of the State's navigable waters. 73 1 The dissent quotes ,'lfontnrlci Coalitiort as recognizing that landowiier C:urran had no right to control thc use of thc surface ivatcrs of thc Dcslrborn Rivcr to the cxclusiorr of the public. "except to the extent of his prior appropriation of part of the water for irrigation purposes. . . ." Montcrrza Chalitiorz, 210 Mont. at 52,682 P.2d at 170. Justice Rice accuses the Court of ignoring the qualifying clause (quoted above). The referenced clause from illorztailn C'oc~litiorz merely recognizes the principle of prior appropriation: that first in time is first in right. ~Zfiiirte Ferris (19521, 126 Mont. 210,216,237 P.2d 105, 108: 5 85-2-401. v. MCA. In adjudicating individual claims forpre- 1973 recreation, fish and \vildlifc, the Water Court will have to determine the validity of each claini, and as to those claims it finds valid, it will have to assign a priority datc. Section 85-2-234(O)(c). MC.4. 732 Ample case law depicting the evolution of thc prior appropriation doctrine, and emerging from throughout the west. supports a concius~on that the doctrlnc sl~ould rlg~dly not demand a diversion where unnecessary to achieve the itltended beneficial use. See, e,g., 18 f5fipii.e i.'!irter & /"ewer Ch. v. C>r.sccicle Trii,t:n Co.(8th Cir. 1913). 205 F. 123; 12")"[i]f nature acciirnpiislies a result \vhich is recogniicd and utilized, a changc of proccss by rrian :vould seem unncccssary"): 1 1re IVcitei. Kigl~is 3il::ier River (Or. 1925). 237 P. 322.336 1 in "[wjhen no 'ditch, canal, or other structure' is necessary to divert the water from its natural channel. the law does not vainly require such works: prior to an appropriation"); Town of iienou v. U.i.stfull(Colo. i%GO), 349 P.2d 370,378 ("It is not necessary in every case for an appropriator of water to construct ditches or artificial ways through xvl-iich the water might be taken from the stream in order that a valid appropriation be made. The only indispensable requirements are that the appropriator intends to use the waters for a beneficial purpose and actually applies them to that usc"); State, D q t . ofPczrk.s 1.. [(((tho Depi. o Wafer Acli?~ln. f (idaho 1974), 530 P.2d 924; 933 (Bakes, J., concurring) ("[wlhere an appropriativc water right docs not require a diversion to make it effective and beneficial, in the absence of a statute requiring a diversion there appcars to be no practical reason why a diversion should be required"). *33 The issue of whether Montana recognizes instream water rights prior to 1973 was again addressed by this Court in Stutc e.u re/. C;r,ccly v. Cot~edernted Sulislz arzri Kootenili ( 1 985), 2 19 hlont. 70.7 12 P.2d '754. In Greeb.. the issue was whether Montana's bVatcr Use Act R~as adequate to adjudicate federal and Indian reserved water rights which pre-dated 1973. Addressing Indian water rights: we noted that Montana's Water Use Act permits the Watcr Court to treat Indian reserved rights differently from state appropriatcd rights in terms of thc filing of c!ai!ns and contents of prciiminary and final dccrces.' We then noted that the Act recugniic.s and ~ o n f i m 2 ~ "existing rights l the usc of any svatcrs fiir an): iwscfiil or o beneficial purpose." Section 85-2- 101(3j, 1IC'A. "Existing right'' means :. right to the use . of ~vater which would be protected under the law as it existed prior to July 1. 1973. Section 85-2-102(8). MC.4. Since the Court in C;~-eely recognized that state appropriative water rights and Indian reserved water rights differ in origin and definition and that Indian rights are governed by federal law (Greely, 219 illont. at 89, 712 P.2d at 762; ciccord, /fpplicotiiiiz f i r Henqficiizi Ilr&terUse Pel-]nit (l996), 278 Mont. 50; 55-57,921 P.2d 1073, 10771, the Court could have coi~cludedthat the State of Montana u a s bound to reeogni/e Indian resc~wed rights as "existing rights" whicl? would be protected under the law (federal law) as it existed prior to J L I I1. 1973. Section 85-2-102(8), MCA. Ho\vcver, rather than rely on a ~ federal definition of Indian reserl ed rights, the Greebl Court then set out the Water I'se Act definition of "beneficial use," that is. "t~se water for the benefit of the appropriator, other of persons, or the public, including but not limited to agricultural (including stock water), domestic. fish and wildlife. industrial, irrigation, mining, municipal. polver and recreational uses." Section 85-2- 102(2), 'CICA. Flav~ng thus set out the \ arlous state statutory premtses. 'See, e.g., $ 85-2-224, MC.4 (statement of claim for federal reserved water rights); 5 85-2-234(2), MCA (terms of negotiated Indian water rights compact must be included in final decree without alteration); $ 85-2-234(3), MCA (final decree must establish existing rights and priorities of Indian tribe possessing water rights arising under federal law); and $5 85-2-701 through -705, MCA (establishing reserved water rights compact commission to negotiate with Indian tribes to quantify Indian reserved water rightsj. the (:our; then concluded: "!'his definition recogniyes nonconsumptivc anti insircam nscs for fish and wildlife. it is sufficientiy hrc3nci to a!iaw aiij~tdica~ion water rcccrved lo of protect tribal hunting and fishing rights, including protcction Goin the depletion of streams below a protected protection level." C;r-eely, 21 WMont. at 91,712 P.2d at 763. This holding is significant in that in relies, not on fcderal law, but on the Montana Water I.!se Act's very broad definition of"beneficia1 usc" as the basis for recogni~ingpre- 1973 tribal rights to non- cot~sumptive instream uses as "existing rights" which n3~1st corifirmed u~lder Act. and be the The Court thus concluded that the \\iater Use Act, on its face, is adequate to adjudicate Indian resewed water rights, including claims for instream uses prior to 1973. In effect, the Court, in detcnnining what constitutes an "existing ~isc,"incorporated the Water LTse Act's broad definition of "beneficial use," thereby making that definition applicable to both post and prc-1973 water rights claims. Using the same statutory defi~iition "beneficial use" for as cited in Greely (a definition applicable to all water users, not just tribes), thcre is no reason bvhy the Water Court cannot adjudicate both tribal and non-tribal claims for instream uses prior to 1973. '134 Three years after Gt-cell:, we decided Benlz Lclh-e. We note that in Reirn Lake, the DFWP; although it did not prevail, argued in its brief against making an artificial distinction between diverted and non-diverted rights for fish, wildlife and recreation purposes. First, such :a requirement urould be an anachronisn~.While the diversion requirement is appropriate whcrc dibcrsion is the only means by which water can he rrsed, it makes no sense to blindly require a diversion whcri: a beneficial use can and must be made in the stream or lake. As an iiiustrarion of the inapplicabiiiry o f a diversion rcquirernent to ihc rccrcaiional and fish and wildlife use of Bean Lake, imagine a natural or ~nanmadt.depression located close to the lake and of the same size and shape as Bean I.akc, Further assume that all of the watcr of Bean Lake is dikefled by pumping into this depression and the new "lake" is stocked and managed as a fishery and a recreational resource. The artificial lake is unlikely ro be either as productive or as aesthetically pleasing as the natural lake. Ho\vever, if a diversion is an absolute requirement for an appropriation, then the less desirable and much more expensive artificial lake would be given preference in law over the use of the natural lake. Such a conclusion \vould he, at the very least, a disservice to logic. 735 Only two slloi? months alier our Bean Lake decision, the Nevada Supreme Court decided a nearly identical controversy. In Sfcrtc I. : i\lorro.s. the Nevada Coun considered whether "Ncvada law absolutely rcquires a physical diversion of water to obtain a ivaier right" in a controversy involving an inlake appropriation claim for recreation purposes. State v ~Morrooj(Nev. 1988), 766 P.2d 263,265. After noting that the common law had ecolkcd to allow appropriations for stock watering without a diversion when there was no practical need for a physical diversion, the Nevada Court validated a11 inlake appropriation for recreation purposes ,\firroc 766 P 2d at 267. In protecting the tnlake ~ a t e right, the co~trt r held thatjust as the contmoll law "conformed to the practical demands ofstockwatering," so should it reflect the fact that "[dliversions are not needed for and are incon~patible with man3 recreational uses." .Worms, 706 P.2d at 267. U e find the P.re\ada Court's reasoning 3 0 Any perception that Montana law required a diversion as a sitze yiiu nevi to an appropriation arises fi-on1the fact that most traditio~lal rises, such as agriculture and mining, had a practical nccd for a physical diversion. That necessity coml9incd lviih thc practice of using diversions as c i idence of ii uscr7sintcnt t appropriate has iindeniahly led to con fusioin o in our precedent, ~vhichlikewise recognizes instrearn uscs of watcr where no diversion is necessary for the beneficial use. See. e.g.; Axtell 1;. M S . (Joils~~lting; MT 64,288 Wont. 1998 150, 955 P.2d 1352; I>orliciz v. ,Johnsur~(1926). 77 Mont. 229, 250 P. 063: hloritioln Cbnlition, 2 1 O Mont. at 44,062 P.2d at 160; and Cit.eel7, 219 Mont. at 91, 71 2 P.2d at 763. Given Montana's long history ofbeneficially usingwater for purposes ofagriculture, inining, cattle and sheep ranching, logging, rcrilroading, fishing and recreation, we resolve the confi~sion favor of the Axtell, 1)oney;.\fotzfurln Co~zlitioil Cireely line of authority and in and hold that the doctrine of prior appropriation docs not require a physical diversion of water ulhere no diversion is necessary to put the water to a beneficial use. Thus, instrearniinlake appropriations of water for beneficial uses may be valid when the purpose (c.g., stock- watering, fish, wildlife and recreation) does not require a diversion. 737 Because beneficial use rather than diversion is the touchstone of the prior appropriation doctrine: because Montana has long recognized as beneficial the use of water for fish, wildlife and recreation; and because Montana has validated non-diversionary appropriations, we no%. hold that Montana law prior to 1973 did not absolutely require a diversion for a valid appropriation of lvater. 1138 Finally, we note that the Benil Lake Court's conclusion that the framers of the Montana Cocistitution did not accept fish, wildlife and recreation uscs as a valid basis for appropriative miter rights does not accurately reflect the substance of the debates reflected 23 in the transcripts of the i'oi~stitutio~zal Conucnticin. i h c Court seems to h a w based i t s conciusion on the fict that, afier debiiic, Subsection 4 to Anicie 1X: Section 3;was dcierccl. Propcjscd Subsect~on read as fol!oi%s: 4 Subsection 4, Beneficial uses iriclude but are not lilnited to domestic, municipal, agriculture. stocl<~vatering,industry, recreation, sceslic waterways, and habitat for wildlife, and all other uses presently recognized by the law together with future beneficial uses as deteiniincd by the 1,egislature or courts of Montana. A diversion or development is not required for future acqrlisition of a water right for the foregoing uses. The L,egislature shall determine a method of establishiiig those futurc water rights which do not require a diversion and may designate priorities for those future rights if necessary. 139 A thorough review of the transcripts reveals the rationale for the deletion. After Delegate Wilson proposed at1 amendment that mould make non-diberssonary rights permanently junior to diversionary rights regardless of tile date of appropriation, the delegates voted to delete the entlre section. Sebe~al delegates urged the deletion of the section to avoid the eternal subordinatioa of instream rights to diversionary agric~lltural and industrial rights. Delegate i\rbanas explained, "I sense that the time may collie in Montana when recreation may be our big industry. . . . To say foreber that agriculture or industry will come ahead of-seelns to me somethrng I don't want rn the Constrtutron." Verbatsm Transcript Vol. I..,at 1332. Delegate Re~chert sirn~farly expressed hereoncerns: "Ifwe pass this . . . is there a danger of h a ~ i n g these other amendments tacked on to it? Perhaps I'd be better off, since I'm for recreat~on a beiieficral use-perhaps as \LC are all bctter offto delcte the entire section." Verbatim Transcript at 1341. I'hc transcripts inciicatc that it was thc fear offuture limitations on fish, wildlife and recreation rights that led to the deletion of the entire Thus the Beizn section. rather than a hciiefthai such rights had not already been recogni~ed. LilRe Court misiakcni): relied an riic dcletinn of Subsection 4 in concluding that the friimcrs ofthe Constitution did not intend to rccognize appropriations rights existed for fish, 1%iidlifk and recreation uses 540 For the foregoing reasons, we overrule the Beat? Lake concli~sion Montana: prior that to 1973, did not recognize fish, wildlife and recreation appropriations of water, whether diversionary or non-diversionary. We hold that Montana recognized fish, wildlife and recreation uses as beneficial and that valid instream and inlake appropriations of water existed in Montana prior to 1073 where the intended beneficial use did not require diversion. and witcn the facts and cjrcumstar~~es indicate that notice of the appropriator's intent had been given. 741 In its brief to this Court, the Water Court requested that, ifthis Court revisits the Berm Lalie decision, we give the Water Court "clear instn~ctions"on how to proceed with regard to recreation, Gsh and vvildlife claims. Accordingly, the Water Court is instructed to identify, of review and hold hearings in a manner sin~ilar Adiudicatio~z U'nter.RigJzfr.ofYelloiilvtone to River. (1992)>253 Mont. 167, 832 P.2d 1210; on all pre-1973 recreation, fish and wildlife claims, both diversionary and non-diversionary, and determine the validity of such claims under the holding ljerein. 142 final note about Justice Rice's dissentient incantations that the Court has, in addressing non-diversionary rights, gone outside the pleadings anct outside the issues. Far from being outside the issues: non-diversionary rigilts are at the 11ca1T of tile dispute. They arc the very source of the confitsioa that \be arc asked to resolve. v 1 3 The Bear2 Lnkc decision which hits engendered all the coizfusion arose out of claim for inlake, non-diversionarywater rights for fish, wildlife and recreation purposes i n a natural pothole. That decision then gave rise to the Water Court's Beilri Lnke remark which, in turn, has been applied to both diversionary and non-diversionary rights. Since the Bear1 t a k e decisions in 1988 and 1989, the Water Court has (as of May 9, 2000) issued Bean Lake remarks in 1666 claims in 38 basins. It makes little sense to prolong the confusion by stopping the legal analysis midstream? as the dissent would have us do. 7144 If Hecrrr Luke needs clarification: as all agree it does, then we must, of necessity. address both diversionary and non-diversionary uses. If we were to embrace Justice Rice's simplified rendition of Montana's \\later usage history (ignoring non-diversionary uses for logging, stockwatering, railroading and recreation), we would be writing fiction rather than engaging in legal analysis I1 Does the Water Court's use of the "Heiltl Lizkc remark" \lolate the Supreme Court's Water Rlght Claim Examlnatron Rules 5.11 and 5.IV(l)(a)? lj45 DFWP argues that the remark highlighting the an~bigtlity Montana prceedent is a ill "policy' instituted by the Water Court that violates the Claims Examination R~tlcs promulgated by this Court. We tind that the Montana Water Court has the authority ro include relevant potential issue remarks in its rulings, and that the Heri/l Lnke remark is such an issue remark. !l4G While not challenging the Water Court's authority ro insert issuc remarks, DFWP suggests ihat the consistent insertion of thc h'ccii? Like remark in ali fish, wiidir'c: ar~c! recreation claims indicates that tlse Water Court has adopted a position on thc suhstanti7;e issue. The Water Court on the other hand states that the rcmark mercly identifies potential issues as autliorized by various Claims Examination Rules. Sec. e.g., Rules 2.1(5)(b), 3.11(5)(b), and 4.III(3)(b). 747 We agree with the Water Court that tile Beuit Luke remark simply notes a potential legal issue. The remark does not take a position and does not rule on any issue but merely highlights the conflict engendered by Werol I-nke. Rather than instituting any "policy." the remark simply points out the possibility that Betm Luke could provide a basis for a challeiige to any pre-1 a173 iish, wildlife and recreation water claim. The I-eniark was therefore an appropriate exercise of the Water Court's discretion and did not violate our Claims Examination Rules. We concur: Justice Jim Rice concurring in part aaci dissenting in pal-!. 71 .8 i .' rhe public right urged by the Ccmmissin:i would bc based on the i'dct that the public had used the creek as a f?sl~ing t r e m ~ s and natural fish hatchery before DuPuy built h i s dam. . . . Such a public right has never been dcciared it1 the case law of this state. t'u~zirlise Rr~ifrhow:r Fish and G n ~ ~Comn~ission v. te (1966), 148 Mont. 412, 419. 421 P.2d "'49 11 In this appeal, the DFWP is asserting a prc-1973 water tight claim for fish, ivildlife and recreation purposes for appropriations inbolvtng a diversion or capture of water. Although the Court's rationale in Rt'(21zLuke properly recognized that recreational uses may coilsiitutc a beneficial use for purposcs of applying the prior appropriation doctrine, thc op1111on urtfortunatcly concluded that no approprration r ~ g hfor reereat~onal t uses of any kind u as recogni~ed pnor to 1973, except for those contemplated under the Murphy r~ghts statute. That conclusion appeared to i n \ alidate pre- 1973 rcereat~onal clatms u h ~ c h satisfied all of the elements of the appropriation doctrine, including the element of diversion. '150 1 concur with the Court's holding herein that recreational use is a beneficial use of water, and that the language in Reczn Lnke which purports to invalidate all pre-1973 recreational claiins is erroneous. 'Po the extent that it i s necessary to clarify that pre-1973 recreational claims which meet all of the elements of the appropriation doctrine, including diversion, are valid, I concur with the Court's decision herein. I-lowever, I must dissent from the remaining, substantla1 portlon of the Court's optnion llenrz Luke properly held that pie- 1973 claims involving %on-captive," i.e., lnst~earn iniakc, reercationai uses have never or been rccogi~i~ed, also acknuirledgcd by this C:ouri i ~ iscirili!i'se R ~ t i n h o u , ~ , as r 751 The Court offers a lengthy discussion in an effort to market its conclusions that t!lc doctrine ofprior appropriation is aLLhistorieally flexible" concept. and that the strict necessity of establishing diversion is mere "perception." 'The Court further holds that the doctrine recognizes appropriations of water without a diversion whenever a diversion is not necessary for the use. Finally, the Court holds that pre- 1973 instream appropriations have already been recognized and approved in our law. Tliese conclusions, which blatantly ignore controlling statutes and case law, are all erroneous. .A proper review of the applicable law establishes that diversion, or a fonn thereof, such as impoundnient or capture, is a longstanding, foundational and requisite element for all pre-1973 water appropriation claims, including recreational uses. That the law clearly required it is an inescapable conclusion. '52 A brief look at our early history and precedent is necessary to accurately determine the applicable law on these issues. 553 This Court provided a detailed recounting of the early law of water appropriation in li'ntinger (,I!) 12), 45 Mont. 154, 122 P. 575. The Court noted the law had its origins Bnilej,~. in the customs of miners and others in California, and that those customs ripened into well- recognized I-uleslong before the development of local government and legislation. "These customs formed a part of our unwritten law, or, as it might more aptly be termed: the common lalv ofthis country as distinguished from the common la\v of Engla~~d.'' Rniiiij:, 45 FMonr, at i 66,122 P.at 579. ;[54 This pre-statutory common law of appropriatioii, often referred to in our case law as the "settlers' customs," was sumniarired by the Court in ii:f;~rrny Titigley (1 897)> Mout. v. 20 260, 50 P. 723, as follows: "A person acquired a right to use the water by digging a ditch, rapping a stream, and turning water into it, and applying the water so diverted to a beneficial use. This constituted a valid appropriation ofwater." ibf~n'c~r;,illont. at 268,50 P. at 725, 20 Consequently, the Court reaffirmed therein that "[tlhe essence of an appropriation [is] a completed ditch, actually diverting water, and putting it to a beneficial use . . . ." 12.ltlrrizy~ 20 hlont. at 26") 5 0 P. at 725. These common law requircmcnts were repeatedly c~mphasircd 5 in our early case law and throughout our histot-y. 755 Even at this early juncture in the discussion, the flaws in the Court's analysis begin to appear. The Court holds that "benefic~aluse is the tcst of a t alid right" and "beneficial use rather than diversion is the touchstone of the prior appropriation doctrine," but fails to acknowledge that diversion has always been an inherent requircn-ient in our law's assessment of whether water was beneficially used. As noted in the above quotations from Bailey and z V ~ ~beneficial use has always been a separate, and additional, consideration which r q ~ followed capture of the water itself. See irlso IZ'11etll v. Crzmeron (1922), 64 'Llont. 494,501, 21 0 P. 761,763 ("[a]ctual diversion and beneficial use existing or in conternplation constitute an appropriation"), 'The Uoctrt further explaii~ed the a i f f c 1 . e ~belt!-ecn tl~csctwo ~~ considerations in iboi~cj, Lhirrpheii (i(JOii:, 24 Monr. 13; 60 P.396, 1.. holding: that right to the use of xvater is a possessory one, that may be obtained by actual appropriation and diversion, perfected by application of the water so appropriated to a beneficial use then present and contemplated. Tool~ey~ 'Llont. at 17, 60 P. at 397. After explaining that the requirement ofbeneficial use 24 "perfected" a dibersion-based appropriation, the Court further explained the process of determining beneficial usc, which underscores another error in the Court's opinion herein: But, as every appropriation must be made for a beneficial or useful purpose . . . it becomes the duty of the courts to try the question ofthe claimant's intent by his acts and the circumstances surrounding his possession of the water, its actual or contenlplated use and the purposes thereof. " Toohel. 24 Mont. at 18, 60 P. at 397. Contrary to the Court's holding heretn at 23, proof of intent is not, and has nmcr been, a substitute for diversion. Rather, as the Court has previously explained, a claimant's intent was analyzed to detemiine whether a beneficial use mas contemplated, the amount of water appropriated, or I F the right had been lost bq abandonment of its beneficial use. In erroneously holding othenvise, the Court misappre- hends bt'71eflf v. Cunieron, and cites it for the wrong proposition at yi 22. The FV/zc?urCoul-i, In hold~ngthat a cli~tmant'sIntent could be establ~shed"by h ~ act atid by surrounding s circumstances. its actual axid contemplated use. and the purpose thereof," ncwr navered from also requiring "actual diversion," in addition to intent. FVl~ut; %font.at 501: 201 P. 64 at 762. Further, as we have clearly held, "[alctual use was not a prereyr~isitc the creation to of the right. . . actual diversion was enough, ifwith f~oncr.fiife irltenr." Kuiley, 45 Mont. at 173, 122 P. at 582 (emphasis added), qr~oticg \Vie! on Water Rights. The inicnt. of course, \>;as not an intent to divert, hut an intent to use the water beneticially. q5h This Courl has explained that the concept of beneficial use develoijcd in the law aficr tlrc diversion rcquircment was already established. See 111re ~4(ijz~clicuriot~Water Ie,lc.ior~, including size of ditch, etc., by which diversion will be made; the date of appropriation; the name of the appropriator; the name or description of the stream from which diversion is made; an accurate description of thepoinr o diversion, with reference to some natural object or f permanent monument; and, finally, the notice is to be verified by the affidavit of the appropriator or someone in his behalf, which affidavit must state that the matters and facts contained in the notice are true. Sectlon 89-810, R.C.M. (1947) (emphasis added) #I60 1nDIVKCv Irzfake U'ater Coiripurrj (19761, 171 Mont. 316,558 P.2d 1 1 10, the Court analyzed the requirements for establishing a valid appropriation under the statutes. After setting forth the five statutory rcqulrcments enumerated a b o ~ e the Court eonimented as , follows: Completion ofail tlicse steps is ncccssary to a c o m p l d ~ appropriation [citation omitted]. declc~mtion ofnppl-oprintion, unncconrpattied by cortstruction of a cfive!-.sion%vor/<.s ncrua/ diver.siot~~g"dic and ,~t'~,!er*it~.~uflicieri~ i. 7 [citation omittedj. I-hus the posting and filing oC tile notice of appropriation is ti condition precedent to a valid appropriation. and n vir!id clp~pr-opriictiori &e.r rzot exi:~r~t'it!~ol(i cor~zpierio~if the work 11/2diictuai clivcrsioti i,lihe wirrer. o iiztcihe, 171 Mont. at 430. 558 P.2d at 1 1 18 (emphasis added). The lrit'zke Court could nor hake been more clea~, holding that (I j declaration of one's intent to appropriate, uithout a diversion, does not establish a valid water right; and (2) a statutory appropriation is not valid '61 in reaching its conelustons todaj, the Court in large part ignores our century-old statutory sclicnie requiring diversion', prefemng instead to focus on our common lavr history. After ignortng the enduring history of these legislatibe enactments, and the repeated interpretation and application of the law by generations of Montana judges, the Court seizes upon the 1979 enactment of 8 85-2-21 2, MCA, as evidence of the Legislature's recognition of pre-1973 nondiversionary rights. f h e Court apparently concludes therefrom that these nondiversionary rights were superior to other water claims in that filing a claim was not even mandatory. At any rate, the Court has sorely misinterpreted this statute. First, although this claim statute allowed voluntary filing of certain non-recreational instrcam claims, all claims were tionethelcss required to prove "the place and means of dikersion" in order to suecessfuiiy establish the water right, 5 85-2-234(6j, MCA, and there was nothing inconsistent abottt this requirement. The statute, by its definition of "appro- priation" (quoted herein), limited "instream" claims to those which were based upon "diversion, impoundment or withdrawal." Section 85-2-102(1), MCA. Instream stock claims were deemed to be based upon withdrawal. Secorrd, clairns allowed under this staulte were restricted to those with "existing rights," which were defined by the statute as a water right "protected under the law as it existed prior to 1973." Section 85-2-1 02(10), ;MCA. As demonstrated herein, no pre-1973 law protected instreani recreational claims. Third, while the statute's definition of "beneficial use" included recreational uses, the definition of "appropriation" nonetheiess required those claims to be based upon diversion: "'Appro- priate' means . . . (a) to divert, inzj)ozlrrcl,or withn'vc~rv (including by stock for stock waterj a quantity of water." Section 85-2-101(1)(a), MCA (en~pliasis added). In the case of the Court finds that "the appropriation doctrine's history of flexibility and practicality support a holding that a diversion is not rcquircd," and that '-beneficial use is lhc oi~ly esscntiai element of a valid appropriation." Finally. the Court concludes that "'iintcnt is thc essential element andmay be proven through means other than diversion." In so holding, thc Cour~ refuses to lionor our common law. $62 In S\zumniel v. Vogl, sapric, after the Court concluded that the claimant's right could not bc established under the appropriation statiltes, it analyzed her claim under the common law: If the [claimant's] water right exists, it will have to be shown as a water right acquired prior to the 1885 Act and without benefit of that Act. The essential features of an appropriation of water made prior to the 1885 Act are a completed ditch and actual appropriation and application of an amount of water to a beneficial use. Slranrtrzel, 144 Vont. at 369, 306 P.2d at 11 1. The Co~trt then found that the ela~mailt's failure to provide evidence of diversion was fatal, and affirmed thc district court's refusal to recognize the claim. This has been the unwavering position of the Court in regard to common law (non-statutory) water appropriations for a century. See ~Lfidkiff Kitrclzeloe v. (1953), 127 Mont. 324. 328, 263 P.2d 976, 978 ("[tlhe rille is that hc %ho first diverts the Depat-tnient of Fish. Wildlife and Parks, the Petitioner here, appropriation was limited to leasing water under legislation adopted in 1989. Section 85-2- 101(1)(c)>R.IC.4. Clearly, this 1979 claim statute did not alter the state of pre- 1973 law, and the Court cannot point to any autlior~tyfor such a conclusion. The Court also falls to explarn lio\v tlirs statute's provision for voluntary filing of diversion or withdrawal-based stock and individual claims recognizes non-diversionary recreational claims. kvater to a beneficial use has the prior righi thereto where the right is based upon :hi: custom and practice of the cariy settlers as hcre, and where ihcrc was no cnnpiiani.~ with the s:atute"j: C'iaziseii v. ilrrni/zgfoii ( I %9), 123 Mont. 1 2 12 P.2d 340 (""a person may niake a valid appropriation of water by actual diversion and use thcreof without filing a notice of appropriation as detit~ed sections 7100 to 7102, R. C. M. 1035"): Kikrl v. Ke~lsler in (19351, 100 Mont. 592, 51 P.2d 235 ("a valid appropriation of water mey he acquired even where there has heen no co~npliance with the statute regulating appropriations by record, where the water is actually diverted from the stl-cam and applicd to a beneficial use: compliance is important only with regard to the doctrine of 'relation hack'"): !Vlrzytznrd v. I?.irlkins ( I ? 18), 55 Mont. 54, 173 P. 551 ("[tjhe essential elements of an appropriation were a completed ditch and the application of water through it to a beneficial use"). 7'63 Despite the heavy weight of o~rr precedent, the rnajority finds that diversion was not a part of this Court's "traditional appropriation analysis," and that "[djecisions from this Court have not consistently required diversions for water appropriations." The cases cited (1926), 77 Mont. 229>250 P. 963, for this supposed "inconsistency" are llonich 11. .Jolrr~so~? and A.uteli v. hl.3. Coi~sulting,1998 MT 64, 288 Mont. 150; 955 P.2d 1362. tiowever, neither stand for the proposition for which they are offercd. 7164 The issue in Donich was whether junior appropriators were infringing upon the m:ater rights of senior appropriators, who claimed that the damming and storing of water by the junior rightholders was infringing upon their senior rights established under a previous adjudication. i)onich dciilt with thc priorit;; of rights between appropriators, not~.vbether the The app~npriationrequireinenis. cxisrenci: ofdiversion junior appropriators' actions f~ifiiled was nor an Issue in the case. becausc di\ersioii \\as zccknotbfcdged thcreln. The lI approprrations, we now liold that Montana law, prior to 1973 did not absolutely require a diwrsion for a valid appropriation of water." The absoluteness of the Court's error on the substance of the law cannot be overstated. There 1s as much "confuslo~t"In our pre- 1073 la\\ on diversion as there i s in a brick. Our law is simply monolithic. 8 This is acknowledged and explained in the brief of the I)I-'L\'P, who is the Petitioner here: [Tlhe general appropriation requirements of pre-July I , 1973 Montana law. . .[required] an actual diversion (capture) and beneficial use of water to establish intent and to give other water users notice of the specifics of the appropriation. Diverting or capturing water for fish, wildlife or recreation is a beneficial use of water and establishes a valid right under pre-July 1, 1973 Montana law. Instream or inlake fish. wildlife and recreation claims that do 'This "line of authority" is most interesting. The four refercnccd cases address very different issues, and none of them cite to any of tlte others. If the focus is diversion, then Dorlich and ,?.u/ell spoke approvingly of capture as a form of diversion, ~Wo~ztcrnirCbalitiotz acknowledged the superiority of diversion-based irrigation rights over the public's right to use water pursuant to the Public Trust Doctrine, and Greeiy spoke of diversion approvingly in distinguishing state water rights from reserved rights. To the extent these cases provide any authority on the question here, it xveighs against the Court's position. not involve a diversion (capture) of water, exccpi iiir Murphy Rights; as invalid under pre-July 1, 1973 Vtontana law. 779 The i'our~has now re-created pre-1973 Lvatcr law in Mclonraiia, its opinion is a smootb!y written; seamless essay which attracts an unsuspecting reader to ilreconclusion that the holding is completely correct and justified under the law. Indeed, 1 cannot disagree with the proposition that "[c]ommon sense rebels against a rigid diversion requirement which would refuse to recognize an acknowledged beneficial use simply because application to tlte use does not require removal from the ~vater source." If this issue had becn presented to the Court as a prospectne re\ iston to the cornmon lam properly arising out of litiration. I lbould most seriously consider it. However, thc issue of instream rights is nor even before the Court; only diversion-based claims are before us. The Court chooses to go outside the issues actually raised here, outside the arguments presented, outside the rclicfrequested, and outside 100 p!us years of precedent to retroactively redefine pre-I073 law, I submit that the Court is also going outside its judicial obligation to apply the law that is, electing instead to remake pre-1973 law in accordance with what it wished the law had been. Chief Justice Karla M. Gray: I concur in the foregoing concurring and dissenting opinion of j ~ ~ s t i Rice. c C