Confederated Salish and Kootenai Tribes v. Clinch

SALISH AND CONFEDERATED TRIBES, KOOTENAI Respondents, Petitioners and Department CLINCH, Director, Montana BUD Conservation, of Natural Resources OF NATURAL THE DEPARTMENT CONSERVATION, AND RESOURCES Appellants. Respondents 04-042. No. January Argued and Submitted 2005. March 2007. Decided May 25, Rehearing Denied MT 63. Mont. 302. 158 P.3d 377. Appellants: (argued), For Tim Department D. Hall of Natural Conservation, Helena. Resources Legal (argued), John B. Carter Tribal Respondents:

For Pablo; (argued), Goetz, Gallik & James H. Goetz Department, Baldwin, P.C., Bozeman. (Heart Harley (argued), Harris Helena

For Amici Curiae: R. (Lake County al.); Helena Ranch, MacIntyre, et Donald D. Sky Gordon, Browning Commissioners); Terryl T. Matt and David (Northwest (Blackfeet Tribe); Shontz, Montana John M. Helena (Montana Kakuk, Realtors); S. Helena Michael Association Legislators). of the Court. Opinion RICE delivered the

JUSTICE Clinch, of Natural Department Bud Director the Montana (DNRC), appeal from the and Conservation Resources County, Court, Lewis and Clark order of the First Judicial District Salish and summary judgment in favor of the Confederated granting (Tribes). further We reverse and remand for Kootenai Tribes proceedings. following appeal: issue on We consider the the use state process applications Can DNRC prior on the Flathead Reservation

appropriative rights? of the Tribes’ reserved quantification

BACKGROUND Axe, of two non-Indian owners and Katherine James ¶4 rights on the Flathead Indian Reservation appropriative water (Reservation), change of those water applied to the DNRC to the use they operate a to so that could water rights irrigation from recreation enjoin against to it from brought The Tribes suit DNRC pond. ski granted a change The District Court processing application. injunction preliminary restraining order followed temporary conducting any proceeding pertaining preventing DNRC the Tribes negotiations between application. After unsuccessful Axes’ ultimately summary judgment DNRC, granted District Court The District permanent injunction. Tribes and issued a in favor of the whether the Axes’ DNRC not determine concluded that could Court rights Tribes’ adversely affect the ofthe change would proposed rights. DNRC of the Tribes’ reserved quantification of a the absence appeals. OF REVIEW

STANDARD summary grants of of review for the standard We articulated ¶5 judgment Hagel, 194, 14, 142, in Grimsrud v. 2005 MT Mont. ¶ ¶ (citations omitted): 14, 47, quotation 119 P.3d marks ¶ grant summary This Court’s of a review district court’s judgment de is novo. Our evaluation is the same 56, trial We apply court. the criteria contained in Rule M.R.Civ.P.

According rule, moving party to this both must establish a genuine absence of issue of material fact and to entitlement judgment as a matter of accomplished, law. If this is the burden then non-moving shifts party prove, more than mere speculation, denial and genuine that a issue does exist. If the court genuine exist, determines that no issues of fact the court must then determine moving party whether the entitled judgment aas matter of law. This Court reviews a

¶6 district court’s conclusions of law for correctness. Galassi County of Com’rs, v. Lincoln Bd. 319, 2003 MT ¶ 288, 7, Mont. 80 P.3d ¶

DISCUSSION process Can DNRC applications the use state appropriative on the Flathead prior Reservation quantification of the Tribes’ reserved rights? Greely State ex rel. Tribes, Salish & Kootenai Confederated (1985), 219 Mont. 712 P.2d 754 this Court described two kinds of water at issue here: appropriative

State and Indian reserved water origin differ in and definition. Appropriative rights are based on actual use. Appropriation for beneficial governed by use is state law. Reserved water established reference to the purposes of the reservation rather actual, than to present use of the water. The basis for an Indian reserved treaty, federal statute or executive setting order aside the reservation.

Greely, 89-90, 219 Mont. at 712 P.2d at 762. argues that the Axes have a fundamental constitutional right to change the use of their appropriative rights. water Additionally, DNRC contends that the District granting Court erred in summary judgment because genuine issues of fact material remained pertaining change whether the ofuse would adversely affect the use ofthe rights. Tribes’ reserved water ofits support argument, 85-2-402, MCA, that Legislature maintains in specifically § 306 prior change applications processing for the of water use

provided rights. the Tribes’ reserved adjudication a final respond rights water are senior to The Tribes that their reserved and, further, on the Reservation appropriative all state “rights.” and not merely claims are “claims” appropriative that all state the Tribes rights, of the Tribes’ reserved quantification Without a final change in the use that it is to determine whether impossible contend of the Tribes’ existing adversely claim will affect use 85-2-402(2)(a), argue MCA.1The Tribes also under the standard in § adjudications proceedings improper piecemeal are change that use Amendment, 666, at 43 codified U.S.C. prohibited § the McCarran multiple change they and that should not have to intervene to a separate from and addition proceedings-which are their adjudication rights-in order to ensure comprehensive infringed. are not on the McCarran argument, parties At focused oral Court, begin so we will relevance to the issue before this Amendment’s the McCarran analysis applying interpreting our there. After case, complex instant we will discuss Amendment the Amendment tribal relating both to jurisprudence matter. jurisprudence to this sovereignty, apply and we will “trilogy” of conclude comment on the so-called Finally, we will with a Clinch, cases-Ciotti, closely address related and Stults2-that our of those holding here means in the context explain issues and what our decisions.

I. The McCarran Amendment. (enacted 10,1952, 666, 43, July Code Title Section United States 208(a)-(c), 560.), commonly as the 651, II, Stat. known c. Title 66 § by Nevada Senator Pat sponsorship due to its McCarran Amendment McCarran, reads follows: adjudication 666. Suits

1 MCA, 85-2-402(2), part: reads in Section appropriation right department approve if the [T]he shall following proves preponderance that the criteria appropriator of evidence met: (a) adversely proposed change appropriation of other affect the will persons .... use of the (1996) Permits, 923 P.2d Use 278 Mont. Matter Water of Beneficial Clinch, (Ciotti); P.2d 1999 MT 297 Mont. Tribes v. Salish and Kootenai 420, 59 P.3d Stults, 280, 312 (Clinch); MT Mont. Salish and Kootenai Tribes (Stults).

307 (a) defendant; given Joinder of United States as costs. Consent is (1) join to in any United States as defendant suit for the adjudication rights system of to use water or of of river other (2) source, or for rights, the administration of such where it appears process United States is the owner of or is in the acquiring rights by law, by water appropriation under State otherwise, purchase, by exchange, or and the United States is a necessary party States, to such suit. party The United when a (1) suit, any such shall any right be deemed to have waived plead that the State are inapplicable laws or that the United States not amenable thereto sovereignty, reason its (2) subject orders, judgments, shall be and decrees of the jurisdiction, court having thereof, and may obtain review in the same manner and to the same private extent as a individual Provided, under like judgment circumstances: That no for costs shall be against entered in any United States such suit.

(b) Service of summons. process Summons or other any such suit shall upon Attorney be served General designated or his representative.

(c) Joinder involving in suits use of interstate streams State. Nothing in this section shall be construed authorizing as joinder of the any United controversy States in suit or in the Supreme Court of the United involving States of States to the use of the any water of interstate stream. plainA reading the statute’s text indicates that the United

States has waived its sovereign immunity so that it joined be a defendant when it is necessary party seeking adjudicate cases or rights administer water in state courts.3 Supreme The United States Court has interpreted tribes, this waiver to extend to the Indian providing consent to determine state court federal reserved water rights held on behalf of Indians. Colorado River Water v. Cons. Dist. U.S., (1976). 800, 809, 96 424 U.S. 1236, 1242 S. Ct. The Amendment’s 3 purposes, happen only For McCarran administration water can after adjudication. 666(a)(2), their administer 358 256, provisions, “To § come within a suit seek must adjudicated.” to enforce 666(a)(1), already U.S., § of the sort covered v. Orff (9th 1137, 1143 2004), citing Hennen, F.3d Supp. n. 3 Cir. United States v. F. 300 (D. 1968). it, Nev. “To administer a decree is to execute to enforce its meaning, interpret to resolve conflicts as to its to construe and to and a decree can, its language. more adjudication entered, Once there has been such an then one or persons adjudicated who hold water within the framework of 666(a)(2), among above, subjecting commence others such actions as described States, case, proper judgments, United in a orders decrees of the court having jurisdiction.” Hennen, Supp. 300 F. at 263. against suits the United States or purposes private

waiver is not for rather, tribes; comprehensive is limited to state the Indian Rank, Dugan v. 609, 618, 83 S. adjudications rights. 372 U.S. Eagle County, v. (1963); U.S. District Court for 999, 1005 401 U.S. Ct. Court Water (1971); U.S. District 520, 525, S. Ct. (1971). Div. 527, 529, No. 91 S. Ct. U.S. argument proceedings of use their support of that, according adjudications, the Tribes contend improper “piecemeal” Amendment, judicial interpretation of the McCarran and their jurisdiction has no over Tribes inter sese general of a except within the context a requirements. McCarran Absent adjudication that satisfies sovereign adjudication, the Tribes retain proper McCarran 84-85, 219 Mont. immunity proceedings. all DNRC Greelv. from 759; at 712 P.2d Stults. 38-39. ¶¶ bar, In case at the entirely is clear the Tribes mean. the

It not what defendants, generally to DNRC they parties are not nor are Tribes thus, rights; to speak proceedings appropriative that administer state inapt. is immunity proceedings from such sovereign of the Tribes’ a Moreover, immunity party is a that sovereign precludes doctrine government’s suing sovereign government a without that (8th 2004), Dictionary see Black’s Law consent, ed. and it is not at all However, of are “suits.” change proceedings clear that DNRC’s use common thread expresses the sentiment a quotation above authority to that DNRC lacks throughout argument: Tribes’ by held non-Indians on fee regulate state appropriative Though squarely Reservation. land within the boundaries of the issue of tribal by parties, must address addressed we necessary sovereign immunity-as a is broader than sovereignty-which type of this deciding proceedings of predicate to whether Dabney, law. See 2005 under Montana permissible Leichtfuss 8, 1220, n. 271, 8, 129, 37 122 37 8 ¶ n. Mont. n. P.3d ¶ MT 329 ¶ (“ ultimately ‘a an issue “antecedent ... and court consider it, parties fail to even issue dispositive dispute of’ the before ” Bank Ore. v. (quoting United States Nat. identify and brief.’ America, Inc., 439, 447, 113 S. Ct. Agents Ins. 508 U.S. Independent (1993))). sovereignty, the State If, by virtue of Tribes’ on non-Indian authority over water regulatory no were to have subject on would Reservation, then Montana law on the fee land (“In Ciotti, 923 P.2d at 1082 irrelevant. See 278 Mont. be water, tribal regulate administer jurisdiction of state absence J., compliance with the Water Use Act is immaterial.” (Leaphart, concurring)). clarify embarking sovereignty analysis, 15 Before our we must argument as it to the The

law relates McCarran Amendment. Tribes’ Stults, language subject some used this Court on the 20, 38-39, holding misconstrues the of Colorado River and conflates ¶¶ abstention, sovereign concepts: immunity, three federal sovereignty.4 River, In Supreme Colorado the United States Court held that court,

federal district to a deferring comprehensive similar state proceeding court then in progress, properly dismissed an action United seeking adjudicate States in several rivers and their The gave following tributaries. Court rationale:

Turning present case, clearly number factors against counsel concurrent proceedings. federal The most important these the McCarran Amendment itself. The clear policy federal legislation evinced is the avoidance of piecemeal adjudication of system.... in a river jurisdiction given by consent the McCarran Amendment bespeaks policy that recognizes availability comprehensive state systems adjudication of water goals. the means for achieving these River, 819, 96 added).

Colorado U.S. S. Ct. at (emphasis a sequel River, Tribe, Colorado Arizona v. Apache San Carlos (1983), U.S. 103 S. Ct. 3201 the Court held that federal district courts brought by should dismiss suits Indian tribes for the adjudication ofwater in favor of comprehensive concurrent state proceedings. The Court reiterated its rationale from Colorado River: Amendment, River,

The McCarran interpreted as in Colorado encourages and allows state of courts undertake the task quantifying Indian water in the course of comprehensive adjudications. water Although adjudication of those in portions misappropriate The Tribes and cited of Stults terms used in Tribe, 545, 103 Apache Colorado v. River and Arizona San Carlos 463 U.S. S. Ct. 3201 (1983), describing proceedings improper “piecemeal” proceedings as adjudications. following demonstrates, As the discussion Colorado River and San Carlos Apache “piecemeal” potential use the term to describe the for simultaneous federal and adjudications rights. agency state proceedings of the same water These cases make no reference to “adjudications,” they apply “piecemeal” as and no instance do term anything potential duplication. other than this federal-state But U.S. State cf. of (9th 1994) Or., (holding 44 F.3d 758 Cir. that the McCarran Amendment waives sovereign immunity agency they necessary proceedings for administrative where are components comprehensive adjudication). of the state even might practical, in the abstract be and

federal court instead wise, long nor as creates the practical it will be neither wise as litigation, controversy tension and duplicative of possibility forums, pressured the federal and state hurried between decisionmaking, disposition property and confusion over the rights. 569, 103 S. Ct. at 3215. That the text Apache, Carlos 463 U.S. at

San for either of the Amendment was not determinative of the McCarran United States and holdings is evidenced the fact that above above, cases. As noted plaintiffs Indian were those tribes only immunity applies as stated in the text Amendment’s waiver joined are the United States or Indian tribes when defendants. tribes, the waiver to the Indian see apply Other than not Colorado River Supreme Court did consider in either United States immunity waived Apache quality Carlos the extent or or San Indeed, statutory interpretation did no the Amendment. the Court Apache, 463 U.S. at Amendment at all. See San Carlos the McCarran (“one any for textual Ct. at 3217 search vain S. Blackmun, (Stevens, J., J., holding”) the Court’s support Rather, underlying the public policy it used the dissenting). perceived of federal abstention doctrine. See Amendment to fashion a new form (“The River, 819, 96 S. Ct. at 1247 clear Colorado 424 U.S. at federal piecemeal legislation that is the avoidance policy evinced added.)); system.” (Emphasis a adjudication river (“In 572, 103 [Colorado Ct. at 3216 Apache, 463 U.S. at S. San Carlos governing rule of recognized Court narrow abstention River] this (Marshall, J., involving rights.”) controversies federal water not abstention doctrine does dissenting). The federal courts’ sovereign any relationship to a waiver of necessarily have relevant separate distinct. As immunity concepts because two mentioned, immunity precludes suing already sovereign party consent, whereas sovereign government government’s without postpone exercise or “may a court decline to abstention relates when River, 424 U.S. at jurisdiction ....” Colorado the exercise its River and The connection that the Court in Colorado S. Ct. at 1244. only do to with a Apache established between two San Carlos should adjudication preference comprehensive policy rather than federal courts. take in state courts place contrary, that federal court intimation to the Despite the Tribes’ relevant, necessarily determinative of though preference, policy appropriative of state regulation DNRC’s question whether

311 infringes i.e., Reservation on sovereignty, the Tribes’ dominion, supreme authority, governments or typically enjoy. rule that (8th Dictionary 2004); See Black’s Law City ed. see also Bisbee v. of (Ariz. 1938). County, 982, 985-87 Cochise 78 P.2d Though the doctrine sovereign of immunity is derived from sovereignty, see The Federalist (Alexander Hamilton) (“It No. 81 is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.”), concept it is a much narrower limited to the realm of above, context, lawsuits. As stated in the immediate issues of sovereignty-but immunity-determine the extent to which the State, DNRC, regulate via can activities within the boundaries offending Reservation without the status of the Tribes as “‘domestic dependent nations’ that sovereign exercise inherent authority over their members and territories.” Oklahoma Tax Comm’n v. Potawatomi (1991). Tribe, 505, 509, 498 U.S. S. 111 Ct. 909 To resolve this sovereigns, tension between we turn jurisprudence now examine more specifically addressing the relationship between regulatory state power of Indian govern tribes to their lands. Sovereignty.

II. The Indian unique tribes have a our system: status in federal Though entities, tribes often referred to “sovereign” as it was “long ago” that departed “the Court from Chief Justice Marshall’s view that ‘the [a State] laws of can have no force’ within clear, reservation boundaries.” it “Ordinarily,” is now “an Indian reservation part territory is considered of the State.” Hicks, (2001) 353, 361-62, Nevada v. U.S. 121 Ct. S. (brackets omitted). original; citations This aberrant status has led body to a complex of jurisprudence attempting to describe the respective authority bounds of the of the Indian tribes and States. general There exist two overlapping approaches analyzing the regulatory interaction state authority and tribal self- government.5 first, States, The exemplified by Montana United 5 According Court, parties documents filed the District more than a ago decade the Tribes filed a claim in United States District Court for the District of currently stayed stay upheld Montana that order that court. The was (9th 1994). Simonich, According Salish v. 29 F.3d 1398 Cir. to the Tribes’ Confederated support restraining temporary injunction brief in of their motion for a order filed April 23, 2001, the federal court claim raises federal issues similar to those that we proceeding only appropriate address here. We mention this federal to note that it is law, regardless this Court to address issues federal of whether those claims have (“State 571, 103 Apache, been San raised elsewhere. Carlos 463 U.S. at Ct. S. courts, Greely, courts, obligation law.”); as much federal have a solemn to follow federal (“We 95, 712 required Mont. P.2d at 765-66 hold that state courts are of the tribe and 544, 101 S. (1981), perspective takes the Ct. 1245

U.S. second, identify authority possesses. scope seeks Bracker, 448 U.S. Apache Mountain Tribe in White embodied to and seeks (1980), perspective of the state takes 100 S. Ct. 2578 limits of its prescribe power. Montana, Supreme States Court considered In the United fishing regulate non-Indian power to the Crow Tribe had

whether The by land in fee nonmembers. hunting on reservation owned and powers of an Indian sovereign inherent recognized that “the Court tribe,” it of the but activities of nonmembers not extend tribe do that: nonetheless stated some sovereign power exercise tribes retain inherent

Indian reservations, on their jurisdiction civil over non-Indians forms of may regulate, through A non-Indian fee lands. tribe even on means, activities of nonmembers taxation, licensing, or other members, its the tribe or relationships with who enter consensual contracts, leases, or other dealing, through commercial may A tribe also retain omitted.] arrangements. [Citations of non- authority over the conduct exercise civil power inherent that conduct lands its reservation when Indians on fee within integrity, political or has some direct effect on threatens or of the tribe. security, or the health welfare economic test, the 565-66, 101 S. Applying at 1258. Montana, at Ct. 450 U.S. present, circumstances” were “[n]o such Court concluded “regulation Montana, 566, 101 at and that at S. Ct. 450 U.S. longer lands no fishing by tribe on hunting and nonmembers self-government relationship to tribal by bears no clear owned the tribe Montana, Ct. at 1258. 450 U.S. at 101 S. relations.” or internal prohibit Tribe could not that the Crow Accordingly, the Court held by nonmembers of fishing within reservation hunting on non-Indian fee land. Tribe considered whether Bracker, Supreme States Court the United to a use fuel taxes license and of motor carrier application

Arizona’s an Indian operating entirely on logging company non-Indian stated that law. The Court by federal preempted was reservation whether question resolve the rigid rule which to “there is no to to an Indian reservation may applied particular state law be members” because tribal Simonich, rights.”); F.3d regard reserved] water [Indian federal law with

follow claims.”). (“The deciding hearing the federal enjoined court at 1406 state position not as semi-independent have retained a the tribes full attributes of nations, States, possessed not as not as power with separate people, but as a sovereignty, relations, and far not thus their internal and social regulating whose or of the State within brought under the laws of the Union limits they resided. (internal

Bracker, 142, 100 quotation marks S. Ct. 448 U.S. omitted). Court to articulate ellipsis went on to the assertion state but related barriers independent two First, and members. authority over tribal reservations regulatory authority pre-empted federal law. the exercise of such be Second, “on the may unlawfully infringe omitted.] [Citations their laws and be ruled of reservation Indians to make own independent omitted.] The two barriers [Citations them.” either, alone, be a sufficient basis standing can because activity on the holding inapplicable state law undertaken byor tribal members. reservation

Bracker, 142-43, 100 Ct. 2583. “a State asserts U.S. at S. at Where 448 activity authority engaging the conduct of non-Indians on the over depend this test does not “on mechanical or absolute reservation” sovereignty,” requires or a conceptions of state tribal but state, federal, nature the and tribal “particularized inquiry into the of Bracker, 144-45, at stake[.]” at 448 at 100 S. Ct. 2584. interests U.S. authority impose taxes The Court concluded that Arizona’s to was regulatory governing scheme preempted by comprehensive the federal 148, 100 Bracker, S. at on 448 U.S. at Ct. logging Indian reservations. regulation the of present the case concerns State’s Because ¶23 boundaries, we activity on non-Indian land the Reservation’s within pertinent, though the is more Montana conclude that Bracker test Wagnon v. Prairie Band Potawatomi provides backdrop.6 a useful Cf. (2005) (“But 676, the Bracker Nation, 95, 546 126 S. Ct. 680 U.S. authority interest-balancing only where ‘a State asserts applies test on activity the engaging non-Indians over conduct of 2578)). 144, Bracker, 448 100 S. Ct. (quoting U.S. reservation.’” in In re congruent with our decision builds on and is This conclusion 6 Axes, Though Permits to the Tribes two Tribal Revocable Water issued unenforceable, legal import, permits and used acknowledge of no that the were Tribes Thus, information-gathering merely Tribes. the issuance these as means permits “regulation” the Tribes. did not amount to

314 Skillen in which applies we held the Bracker test to resolve a “jurisdictional regarding regulatory conflict re matter ....” In 44, Skillen, 399, 44, MT Marriage 287 P.2d Mont. ¶ ¶ (differentiating Bracker test in ex Bear from the State rel. Iron Court, (1973), v. District 162 Mont. 512 P.2d 1292 which applies matters). jurisdictional to relating adjudicatory conflicts cases two most relevant to the issue here do not from come law, however, our own case but United States Court of Circuit, Appeals for Ninth which has twice Bracker applied when whether can considering regulate states water on reservation lands. (9th Walton, In Colville Tribes v. 647 F.2d 42 Cir. Confederated 1981), Court Washington examined whether the State of could grant permits owner non-Indian of allotted lands located within the No Name on Citing Basin the Colville both Reservation. Bracker, Montana and the Court Washington concluded that did not authority regulate rights: have these water reservation,

Where land is set aside for an Congress Indian has federal, it for opposed reserved state needs. Because the No System reservation, Name within entirely is located state regulation portion its some waters would create jurisdictional Congress sought confusion has to avoid. extending [W]e note that the state’s its interest water law to the reservation limited in this case. Tribal federal control No Name waters will have no impact state water off the reservation.

Walton, F.2d at 53. Walton stands in contrast to years the Court’s decision three later (9th 1984). Anderson, in United States v. 736 F.2d Cir. Anderson, Washington], [of Court held that “the State Tribe, the authority regulate the use of excess Chamokane non-tribal, i.e., fee, Anderson, Basin waters non-Indians on land.” Again applying Bracker, F.2d at 1365. both Montana stated, Court “Central our the the to decision is fact that interest theof exercising jurisdiction state in its the infringe will on tribal self-government impact nor on the Tribe’s economic welfare because [the quantified ....’’Anderson, reserved] Tribe’s have been However, F.2d at necessary 1366. a broader was the inquiry resolve Walton, question. Court the Distinguishing hydrology the noted that of the at the in significantly basins issue in two cases were different Walton, small, impact. their size and stream in question “the was reservation,” whereas entirely within the located non-navigable, and of Indian Spokane outside the originated Creek the Chamokane reservation, boundary Reservation, of the eastern part formed eventually reservation away from the and then flowed circumstances, the Anderson, In these 736 F.2d Pacific Ocean. developing in Washington’s interest that “the of Court concluded State surplus for the allocation of waters program comprehensive regulatory its heavily favor it to extend permitting in weighs waters, Basin.” authority any, if Chamokane the excess Anderson, 736 at 1366. F.2d test, prong decided under the first the Braeker Walton was second, decided the basis of

preemption. Anderson was on paucity sovereignty analysis in Walton and sovereignty. Despite Anderson, in one common factor preemption analysis the lack of weighed heavily application in the Court’s ofBraeker's appears to have “particularized at stake in each of the above inquiry” the interests degree regulation to which of the waters at issue affects cases: (“Tribal Walton, rights off See 647 F.2d at 53 or the reservation. no on impact federal control of No Name waters will have state water (“The Anderson, reservation.”); weight off the F.2d at 1366 large extent to depends, part, of the state’s interest which waterways [sic] transcend the exterior boundaries of acquifers country.”). Indian commonality This is consistent with the decision New Mexico (1983), S. Tribe, 462 U.S. 103 Ct. 2378 Apache Mescalero Supreme principles

which the United States Court articulated guided its “New Mexico’s claim that consideration superimpose hunting fishing regulations its own on Mescalero scheme,” regulations Apache those related to regulatory Tribe’s Mexico, 336-37, 103 nonmembers on the reservation. New U.S. at assessing S. at 2388. The Court stated that the “interest asserted Ct. regulatory [a] ... justify jurisdiction state over reservation State’s off- point if the State can particularly interest will be substantial Mexico, that necessitate state intervention.” New reservation effects Rehner, 2387-88; 336, 103 Rice v. 463 U.S. S. Ct. at see also U.S. (1983). test, Bracker 713, 724, 103 Applying S. Ct. regulations preempted by were concluded that New Mexico’s Court Mexico, 462 U.S. at regulatory scheme ...." New “comprehensive tribal 344, 103 S.Ct. at 2392. two factual conclude that foregoing precedent, From we Braeker test will drive with the

inquiries which are intertwined 316

legal sovereign authority determination whether DNRC has the process change First, application the of use issue here. off- Second, Reservation effects must be assessed. the the impact processing applications may of these on the political have Tribes’ integrity, health, security, economic or welfare must be determined. inquiry Walton, first has two sides to it. In the noted Court regulation federal or tribal of the at issue no waters would have impact rights on aspect inquiry state off the reservation. This of the however, determinative present case, not in the because neither the Tribes nor government authority the federal have asserted regulatory over the water rights. Anderson, by contrast, Axes’ where the hydrology of the basin was such that state the basin’s water implicated it, were both on the reservation and downstream of the implicitly Court authority concluded that absence of state regulate on the waters reservation in of tribal would excess adversely state affect water holders respect downstream. With change simply Axes’ of use application, we do not know what authority effect such an absence of would on other state water have Indeed, know, us, holders. we do even from record before whether other there are state water holders of the downstream Axes, on or off the Reservation. inquiry The second dispute drives the heart between

the Tribes processing change and DNRC. To decide whether the Axes’ application of use will on have some direct effect the Tribes’ political integrity, health, security, welfare, economic we must first know-at change adversely least-whether would affect the Tribes’ rights because, reserved many times, has been said See, e.g., Walton, the lifeblood of the West. F.2d at 52 (“Especially arid regions West, and semi-arid is the lifeblood community.”); re Adjudication Rights In General All to Use inWater 1992) (‘Water Big Sys., (Wyo. Horn River is the P.2d Wyoming.”).7 adversely lifeblood of of use change Whether would authority affect the Tribes and whether regulatory such assertion of legal the State would have direct effect on Tribes are However, legal conclusions. these must from a conclusions emanate record, developed is absent factual which here. explained, inquiries As these factual are intertwined with acknowledge inquiry application statutory We that this is similar to an 85-2-402(2)(a), MCA, 39-40, opinion express see

standard in about whether the 10 n. 1 and but we no ¶¶ inquiry each context lead to different outcomes. do, authority can, conclude that the State’s test. We Bracker noted, because, as by federal or tribal interests preempted not been have asserted government the Tribes nor federal neither Bracker, rights. 448 U.S. regulatory authority over Axes’ water Cf. 136, 100 regulatory preempted scheme (pervasive Ct. federal S. Thus, preempted DNRC is not authority regulate). state’s However, at all it is not application. of use processing the Axes’ Tribes’ process infringe would clear this DNRC whether have prong, Bracker. This as we prong -under the second sovereignty is, we test-that intimated, by overlapping is informed the Montana here at issue regulatory process the DNRC inquire must whether integrity, political “threaten[] ha[ve] direct effect on the would or some To security, or the health or welfare tribe.” economic fully need a sovereignty question, resolve this we more properly 29-31, developed addressing factual record matters discussed ¶¶ above. "Trilogy.”

III. The favor, sovereignty analysis to be resolved in the Tribes’ If the were then no need to consider whether Montana law there would be However, on the on change proceedings authorizes of use Reservation. hand, according law authority the other if does not to state DNRC have it no process change application, of use then would make Axes’ virtue practical sovereign authority, by difference DNRC has whether reason, above, do this we of the federal law discussed so. For it is necessary consider to evaluate whether DNRC authorized process application. Montana law the Axes’ cases, previous This Court considered similar issues in three Clinch,

Ciotti, Ciotti, In for new applicants and Stults. we held that permits changes permits water use and for of use of water could terms of Montana Use prove, Reservation not Water Act, 2, MCA, proposed that uses Chapter Title would unreasonably the Tribes’ until those interfere with Thus, authority did not under state quantified. became have that law water use on the Reservation until grant permits Ciotti, P.2d at quantification completed. was 278 Mont. in Ciotti Senate Legislature responded The to our decision with Act it the Water Use provisions Bill amended several 97 which negate holding: its intent to Ciotti’s expressed Supreme Court’s legislature intends Montana The approval of this negated by passage [Ciotti] be decision statutory legislature It is the intent of the bill.... determinations for issuing new permits water use and authorizing changes do not require adjudication of all in the source of supply. legislature recognizes the unique character and nature of water resources of the state. Because water is a subject resource that is reuse, to use and such through as return flows, and because at most times all water on a source will not be exercised to their full extent simultaneously, recognized that adjudication an is not a availability study. Consequently, legislature has provided an administrative forum for investigation the factual into whether water is available for new changes uses and both before and completion after the adjudication in the supply. source of To allow for orderly permitting in the absence of a complete adjudication in the source of supply, permits issued under chapter are provisional. A provisional permit subject reduction, modification, or revocation the department provided in 85-2-313 upon completion of the general adjudication. Mont., Laws of ch. 2790-91. Clinch, again we considered whether DNRC could issue new permits, this time under provisions the amended of §

85-2-311, MCA, response enacted in holding to our in Ciotti. Specifically, holding our turned on whether water “legally was available” Reservation, on the again we concluded that DNRC could not make such a determination because it was unknowable how permits issuance of for uses new would affect the rights Tribe’s until rights those quantified. Clinch, were 28. ¶ Stults was the ¶36 result of a dispute about the meaning of our decision in argued Clinch. DNRC there that Ciotti and Clinch applied only to surface groundwater. Stults, water and not 25. This Court ¶ disagreed, stating, “DNRC process cannot or issue beneficial water use permits on the Flathead Reservation until such time the prior as pre-eminent reserved of the Tribes have quantified.” been Stults, ¶ At in issue Ciotti applications

¶37 were for permits new use as well as application one change for a in Ciotti, the use of an existing permit, 52, 1075, 278 Mont. at 923 P.2d at and our holding applied to both types Ciotti, of applications. 278 Mont. at 54 n. 923 P.2d at 1076 n. 1. Clinch and only Stults concerned permits. However, new use Legislature’s negate efforts to amending Ciotti the water use statutes and some of language employed in the three cases have left it unclear whether this change Court deems that a in use of an same offense under commits the existing permit necessarily reserved unquantified the Tribes’ current water use statutes to hold that it does not. permits. of use We as the issuance new does use on the face, application for a new of water On its an that, be taken from approved, if more water will Reservation means use, definition, contrast, By change a means supply. the available acknowledge currently. than is We more water will be diverted that no Ciotti, Clinch, appropriative that state made in Stults point than the Tribes’ reserved quality are different and character 1076-78, Clinch, Ciotti, 55-58, rights, Mont. 923 P.2d at ¶ Stults, rights may non-consumptive include and that Tribes’ rights, rights, or all of the above. See rights, instream flow or diversion However, we no 91-94, 712 P.2d at 763-65. see Greely, Mont. deprive right-who a holder a state is to of compelling reason using opportunity prove already given a amount water-of change will not proposed a of the evidence that preponderance including the adversely rights, affect the use of other water Tribes’ a in use rights. very change It well could be that would reserved adversely applicant use of or that an for a affect the the Tribes’ prove use a lack of effect on the use of the change of cannot adverse However, unquantified rights. prepared are not hold that Tribes’ we law, applicant as a for an to meet that impossible, matter burden. made it clear that should be able Legislature has 85-2-402(1), MCA, of use Section reads process change applications. part follows: section, there no change proceeding

In a under change for applicant appropriation a presumption adjudication prior lack adverse effect cannot establish chapter. supply pursuant in the source of to this other there was proceedings In record the District Court below parties to demonstrate testimony possible to the effect that it was opinion We no rights. express no effect on the reserved adverse Tribes’ does, however, 85-2-402, conclude that feasibility. This Court such against MCA, presumption for no to work appropriately provides use. change approved holder who seeks permit Therefore, by determining presumption that no we hold that use, operates against permit holder who seeks Clinch, prerogative. constitutional Legislature has acted within its we stated [new] issue water use permits on the Flathead Reservation

prior quantification to the of the pervasive Tribes right reserved requires use of may water which belong would, to the Tribe and therefore, 3(1) IX, violate Article Section of the Montana Constitution which protects existing water whether adjudicated unadjudicated....

Clinch, By nature, its permit’s change of use does not necessarily “require use of water which belong Tribe;” thus, record, without a further we cannot IX, conclude that it offends Article 3(1) Section of the Montana However, Constitution. nothing in our holding should be construed prejudice the Tribes’ claims to reserved rights. Indeed, emphasize we the Tribes need not participate in the process and that the Tribes are not bound the DNRC’s addition, decisions. In we do not imply mean to that a can, state water use permit fact, holder prove by a preponderance of the evidence change that a in use will not adversely affect the use rights. the Tribes’ merely We conclude that a permit holder is afforded opportunity 85-2-402, to do so virtue of MCA. § Because holding above, of our we need not address whether changing the use appropriative of state ais fundamental addition, constitutional right. In we discern no merit in the Tribes’ argument that all state appropriative rights on the Reservation are merely “rights.” IX, “claims” and not 3(1), See Art. Const.; Sec. Mont. 85-2-101(4), MCA. §

CONCLUSION Before process DNRC can change the Axes’ application, District Court must decide whether DNRC has the sovereign authority to conduct such proceedings. Central to the analysis District Court’s will be a consideration of the off-Reservation effects involved in the State’s regulatory assertion of authority or lack impact thereof and the processing application may Axes’ have on the Tribes’ security, health, economic or welfare-including whether adversely use would affect the Tribes’ rights. reserved water If it is established that sovereign DNRC has authority process application, the District permit Court must attempt Axes to prove by a preponderance of the evidence that the “proposed change appropriation right will not adversely affect the use of of other persons,” 85-2-402(2)(a), MCA, including Tribes’ rights. reserved in erred District Court Accordingly, conclude that the we

¶44 Likewise, the Tribes. summary in favor of the judgment granting hereby and is erroneously imposed permanent injunction was removed. proceedings. for further and remanded Reversed

¶45 GRAY, WARNER, DISTRICT JUSTICE JUSTICES CHIEF CURTIS, MORRIS DISTRICT place of JUSTICE sitting JUDGE LEAPHART concur. sitting pace LANGTON JUSTICE JUDGE NELSON, dissenting. JUSTICE

I First, I Opinion for three reasons. I from the Court’s dissent ¶46 the is able to disagree conclusion that DNRC majority’s with rights been determine, the Tribes’ have reserved before change a water use on quantified, proposed whether (see 85-2-402(2)(a), “adversely affect” those Reservation will MCA). view, Court, provided cogent and my the District which a issue, thoughtful analysis correctly of this concluded that the DNRC change that such should authorized cannot make a determination a be what of the Tribes are. protected unless it knows any majority’s contrary corresponding conclusion lacks The explanation analysis proposed or one can determine whether a of how alone, adversely affect-water whose change in use will affect-let scope ubiquitous. but nature on the Reservation is is unknown whose use, by definition, means merely posits change The that “a majority currently.” Opinion, more water will diverted than is ¶ no be definition, not came this but majority does disclose whence it statutory language, requires does not definition track which applicant to show that the use other water change-of-use merely “adversely not proposed change, affect[ed]” will not be diverting water. The that he or she will continue the same amount of They are majority showings equivalent. assumes that these two applicant might any not. not more water after While an divert change proposed change historically, than he or she has diverted protected in a stretch of could increase or decrease the flow use still table, level stream, pressure, raise or lower a water artesian or water instance, area, aboriginal For protected impede practices. in a by the the use water reserved adversely could affect aboriginal hunting fishing, require which Tribes for located) (or particular located at a particular quantity of Indeed, in the Court. point conceded this District location. Consequently, majority’s 85-2-402(2)(a), MCA, revision to § requires such that it only now a determination that “no more water currently,” will he diverted than is emasculates the “adversely statute’s prohibition and, affect” doing, in so exposes the Tribes’ reserved water rights to infringement by routine the DNRC with each change-of-use application that the DNRC approves on the pursuant Reservation result, this standard. As a longer it can no be said that the Tribes’ interests are being satisfactorily protected under Montana’s Water Use Act. In this regard, the Tribes point out that if the permitted DNRC is

to conduct proceedings to change existing water uses on the Reservation, “may the Tribes required present be legal extensive and factual literally cases thousands of times” in order to safeguard their unquantified reserved rights against proposed each change. finding position Not “compelling,” to be Opinion, majority assures the they Tribes that participate “need not in the process” they and that “are not bound the DNRC’sdecisions.” Opinion, assurance, however, 40. This point. By ¶ misses the sanctioning wholly inadequate evaluating change-of-use method of applications-the “no more water will be diverted than is currently” approach-the has, majority unfortunately, put the Tribes in the position having to contest applications such as a matter of course and, thus, to defend their rights piecemeal. reserved water My second point disagreement ¶50 that, with the Court’s Opinion beyond the majority’s issue, discussion of the “adversely affect” Opinion balance of the addresses an issue that is not before us. To be sure, agree I majority with the necessary that it is for this Court to address, matter, as a threshold whether jurisdiction the DNRC has regulate waters within the exterior Reservation; boundaries of the however, resolution of this analysis issue does not call for an of “the interaction of state regulatory authority and self-government,” tribal Opinion, Indeed, analysis such premature until two preliminary questions First, factual have been resolved. because the State has no regulatory authority over the Tribes’ reserved water (see V-A, infra), Part we must know whether any there are non- (excess reserved waters on the surplus Reservation or waters not encompassed within the Tribes’ rights) reserved water over which the State, DNRC, by way of the exert might regulatory power. If no such exist, waters then proceed further; excess, we need no if but there are waters, logical non-reserved the next question is whether appropriation right under consideration is to such waters. have been answered questions of these Only when both sovereignty issues of tribal

affirmatively is there reason to address Apache Tribe v. in White Mountain principles set forth under (1980), v. United 136, 100 and Montana Bracker, 448 U.S. S.Ct. (1981). course, two Of these States, 544, 101 S.Ct. 450 U.S. senior until Tribes’ questions cannot be answered preliminary that the obvious reason quantified, for reserved water have been one waters exist until ascertain whether non-reserved one cannot Thus, majority’s sua of the reserved waters. knows the extent and, such, foray sovereignty premature into law is sponte1 tribal inapposite. out, though by majority cited bear this The water cases simply ignored or appears majority overlooked cases-namely, each of these that the waters underlying

crucial fact regulatory exert government sought power over which the state i.e., that were not included in the tribes’ “surplus,” were waters instance, quantified rights. For the court United States (9th 1984) (cited Anderson, majority 736 F.2d Cir. ¶¶ 26-27), dispute referred to the no less than eleven times as waters “[cjentral” Moreover, Ninth “surplus” “excess” waters. “the state exercise regulatory Circuit’s conclusion that its jurisdiction over the Basin surplus, use of non-reserved Chamokane Spokane waters on non-Indian fee lands within the nonmembers Indian Reservation” “the fact that the interest of .the state was exercising jurisdiction infringe its will not on the tribal to self- government impact nor Tribe’s those on the economic welfare because Anderson, F.2d at quantified.” (emphases have been added). Unfortunately, significance of this fact is lost on majority. furthermore, was appears, majority’s It extended dictum by majority The believes

prompted premise. and flows from mistaken by the claiming infringement sovereignty of their that the Tribes claimed 14, But have no such Opinion, See 18. the Tribes DNRC. ¶¶ the competition regulate is here to water on thing. There not a infringement their Rather, claiming Tribes are of Reservation. the They enjoin seek the rights. their reserved water property-namely, an use on change existing approving applications DNRC from sovereignty Opinion, (acknowledging “not that the tribal issue was See Indeed, Opening squarely parties”). in its Brief that the DNRC states addressed sovereignty implication case. is no of Tribal this “there because, Tribes, any change

the Reservation according such impinge Thus, could upon unquantified rights. their reserved water that misconstrued majority simply seems issue pertinent at hand. Lastly, I disagree majority genuine with the that there are issues needing material fact resolution in the District Court. The factual majority’s sovereignty

issues identified in analysis capable are not time, point just explained; question of resolution at this and the changes proposed of whether not the Axes’ to their uses of will, fact, adversely affect the Tribes’ reserved water (not us, given before parties not Axes are not to this suit mention the fact the Axes possibly showing cannot make a of no adverse effect until Tribes’ reserved have been quantified). only factual matter is how the implicated case a change-of-use DNRC determines lack adverse effect in proceeding. question, genuine The District Court evidence took on this and no Furthermore, follow, remain issues as to it. for the reasons which Thus, judgment Tribes were I entitled to as a matter of law. would respects. affirm District Court all

II procedural fairly The factual background of this case straightforward. holding James and Katherine Axe are non-Indians putative appropriation rights two state-law on the Indian Flathead 21, 2000, July they application Reservation. On filed an with the change use, use, place purpose place storage DNRC rights. Specifically, they applied of these to convert an irrigation fields) (pasture hay into a use in the an 11.75- recreational form of surface-acre water-ski pond. manmade The DNRC reviewed the Axes’ to determine that it application Thereafter,

was correct and and then noticed complete publicly it. Tribes, objections received to the application from the Control, Joint persons holding Flathead Board and a number of that, putative allegedly, adversely state-law water would be changes. Consequently, February affected the Axes’ proposed hearing the DNRC set the Axes’ for a contested application case MCA) (see 85-2-309, (Meanwhile, to be held the Axes April § i.e., proposed changes, they pond, made their filled the water-ski 85-2-402(1), though MCA, make a appropriator may under in an the DNRC’s appropriation approval.) without to District Court action in the initiated the instant The Tribes ¶57 hearing on contested case with the proceeding DNRC from enjoin the applications and, approving from generally, more application the Axes’ The Tribes the Reservation. existing water use on change to an Reserved the Montana they negotiation with that were explained reserved water quantify their Compact Commission Rights Water MCA) (see seeking their 85-2-702, they that were with § the until quo” maintain the status relief “to injunctive for request contended that The Tribes also complete. was negotiated quantification proceedings individual to conduct permitted if the DNRC were Reservation, “may the Tribes be on the change existing water uses literally and factual cases legal extensive required present hearing April The District Court held a thousands of times.”2 order, restraining a 2001, and, following day, granted temporary any otherwise conducting activities restrained the DNRC which 85-2-402, MCA, on the Reservation. authorized § hearing on the Tribes’ 16,2001, the District Court held May On the focal of the Tribes’ injunction. point Given preliminary motion for statutory cannot make the motion-namely, that the DNRC until approving change-of-use applications determinations greater part of quantified-the Tribes’ reserved water have been 85-2-402(2)(a), requirement on the set forth hearing centered change will not MCA, prove proposed that an that applicant existing rights. “adversely affect” the use of subject, the court arguments In addition to from counsel on this Administrator Stults, of the DNRC’s Water Resources heard from Jack Division, extensively concerning process which who testified change application DNRC evaluates and decides an the proposed determines whether Specifically, use. right’s] appropriation pattern [the change will be “consistent with source, in terms of its on the in terms of its burden historic use applicant] [the that use, in of the amount of water consumptive terms is whether Restated, the DNRC addresses question uses.” Brief, Opening the DNRC this concern. its has substantiated The DNRC change proceedings affect acknowledges ... administrative of water that “state during questioning oral rights.” response from this Court And in [the Tribes’] water objections to must file argument, change-of-use the Tribes for the DNRC indicated counsel are, preserve that the Tribes applications their interests and in order to application, particular view, whether decision on bound DNRC’s counsel’s they objected to it. or not being contemplated that is “alters amount that is taken out [of source] and returned being such that less is returned.” below, As discussed in further acknowledged detail Mr. Stults consumptive- or quantity-based approach necessarily does not account for effects possible non-consumptive adverse on the uses to the Tribes’ rights may put (e.g., hunting which reserved water be basis, fishing). argued On this the Tribes that the inability DNRC’s “adversely make the affect” yet determination vis-a-vis the Tribes’ as unquantified simply reserved water meant that the DNRC could approve only change requested Axes, not the any the but also requested change Reservation, other to an water use on the this Court had already respect held with issuance of DNRC’s new use permits. See Salish and Kootenai Tribes Confederated 27-28, Clinch, 342, 448, 27-28, 1999 MT 297 Mont. 992 P.2d ¶¶ ¶¶ 27-28. ¶¶ granted 12,2001. The District Court July Tribes’ motion on doing, so the court noted that the DNRC had proffered a “full bucket” analogy analysis: for adverse effect a “[I]f bucket had a certain level of water in it a prior suggested change, and that same amount of water change, change was the bucket after the should be authorized.” The court that approach wanting observed such an “is when the ticklish unquantified issue the Tribes’ reserved and is plugged equation.” Quoting into the our decision in In the Matter 66459-76L, Ciotti; Application Water Use Permit Nos. for Beneficial 64988-G76L, Starner; Application and Change Appropriation for G15152-S761, “Ciotti”), Right Pope (hereinafter, Water No. 278 Mont. 1073, 1077 (1996), 923 P.2d the court that observed right preserve hunting fishing to water reserved to tribal

rights is nonconsumptive. right unusual that it is A reserved hunting fishing purposes the right prevent consists of other appropriators depleting the stream waters below a protected any level in nonconsumptive right area where the applies. [Alteration and internal marks quotation omitted.] Thus, given nature unique rights, of the Tribes’ reserved water analytical court found the DNRC’s framework be “somewhat rights: deficient” as to those applied may ultimately

While actual amount of water in a stream (the proposed change[] remain constant before and after a full theory), change place DNRC’s bucket of use of a water right may change well result in a in the amount of water in a particular “depleting protected area the stream waters below a The question nonconsumptive right applies.” where level... level protected the Tribes’ becomes; if not know what we do then might that diminish authorized is, change can a be in an area how Thus, although spot? particular in a protected level any diminution of may not result change of use applicant’s conceivably stream, very it could flowing down actual water use, temporary in a result, change place its through stretch of water. particular on a lessening in the amount water non-consumptive of the Tribes’ part stretch of water If that that could hunting fishing rights, tribal right preserve The DNRC protected level. the stream waters below deplete should be that such make a determination cannot non-consumptive protected, unless it knows what authorized [Ellipsis in throughout the stream. Tribes[] original.] conducting any the DNRC from enjoined the court

Accordingly, (This injunction was application. to the Axes’ pertaining proceedings order, restraining which temporary the court’s narrower than 85-2-402, MCA, “any otherwise authorized” restrained activities Reservation.) on the logic supported preliminary Relying on “the same summary judgment the filed a motion for

injunction,” Tribes 23,2001. position the DNRC reiterated its response, In its October on the Reservation determination it can make no-adverse-effect water of the Tribes’ reserved knowing quantity scope the without not need the DNRC does change-of-use proceeding, in a because but, rather, only to needs “legal availability” the of water to know create change will applicant’s proposed ascertain whether supply. of impacts” “additional on the source ruled on the 17, 2002, the District Court had April On before motion, filed a motion for the Tribes summary judgment

Tribes’ they informed the court that The Tribes stay proceedings. limited of Rights Compact Reserved Water recently to the Montana proposed had of domestic for limited administration process “an interim Commission requested The use” on the Reservation. Tribes municipal stay “to breathing afford the Commission some room’ while proposal.” granted stay.3 considered] Tribes’ The court August 2003, counsel for the Tribes informed the District Court reached, that a settlement had not and he requested been 12, 2003, judgment. granted court render On November the court motion for summary judgment Tribes’ and issued a permanent injunction restraining the DNRC from conducting any proceedings pertaining change-of-use to the Axes’ application. The court’s reasoning much the reasoning granting was same as its (set above). preliminary injunction forth

Ill A specific argued Court, issue the District ruled on Court, District and appealed to this Court is as Can the follows: determine, 85-2-402(2)(a), MCA, as required proposed that a § (its to an point water use on the Reservation diversion, use, use, place purpose place storage) and/or will “adversely affect” rights, though the Tribes’ reserved water those 3During Secretary argument, oral us Tribes informed that the ofthe Interior placed approval a moratorium on the of tribal water codes. See Cohen’sHandbook (Nell 2005) 19.04[4], eds., Jessup § Federal Indian Law at 1205 et al. Newton moratorium). (discussing administering doubt, therefore, negotiated process No “regulatory water use on the Reservation is a desirable to the alternative vacuum” that Amici Curiae Affected Landowners claim exists on the Reservation at See, present. e.g., 19.04[4], (noting Cohen’sHandbook at 1205 n.279 that in Code, Department under approved Interior the Port Peck Tribal Water authorized water-rights compact between the Fort Peck tribes and the State of Montana). Yet, Tribes, according “pernicious regulate the DNRC’s efforts” to negotiations “cast[] water use on the Reservation have a cloud” over the between the Tribes the DNRC’sactions have “a definite negotiate Amicus Curiae Blackfeet Tribe informs us that Commission. Similarly, chilling continuing effect”on that tribe’s efforts to Tribe, with the Commission. “For the Blackfeet it raises questions good negotiations primary as to the faith of the State in such if the rights agency try Supreme of the State continues to decisions of its Court avoid own interests, that are favorable to tribal through legislative changes and continues to seek to overturn those decisions supported by agency.” advanced and that State Unfortunately, tribes’ majority’s only impede resolution ofthe case at hand will further negotiations-if thereby delay regulatory not render them futile-and scheme Landowners, quantification desired Affected which cannot realized until be completed process agreed Tribes’ senior water upon. Ironically, frustrated, is or an interim administrative is then, only regulate the DNRC’s efforts to Reservation waters have advanced, not Affected Landowners’ interests. already been question This quantified?4 yet have not been held Ciotti we negative. Specifically, in the by this Court answered interference lack of unreasonable prove burden applicant’s MCA) MCA) (§ 85-2-402(2), cannot be (§ 85-2-311(1), or adverse effect quantified rights have been reserved water until the Tribes’ satisfied MCA, 85-2-702, by general negotiation pursuant by compact § may not issue thus, the DNRC adjudication; inter sese water changes authorize to 85-2-311 or pursuant permits § new water use on the Reservation pursuant to 85-2-402 existing permits § water use n.1, Ciotti, Mont. at 54 See complete. quantification until that n.1, 61, at 1076 923 P.2d however, amended Legislature § holding, to this Subsequent “negating]” our the stated intent 85-2-402 with

85-2-311 § Clinch, Tribes v. Salish and Kootenai decision. See Ciotti Confederated 244, 14-16, 14- 14-16, 297 448, 992 P.2d 342, ¶¶ Mont. ¶¶ 1999 MT ¶¶ Intent, 2790. As Montana, 1997, 497, 16; Ch. Statement Laws of issue new water use may the DNRC result, the of whether question permits on changes existing water use and authorize permits rights have been Reservation, reserved water before Tribes’ Clinch, again we answered resurrected. quantified, was new to the issuance of respect least with negative-at in the question Salish Clinch, 27-28; accord See permits. water use ¶¶ Confederated 28-29, 36-37, 312 Stults, Mont. 2002 MT ¶¶ and Kootenai Tribes v. But, 28-29, unlike our 28-29, 36-37, 36-37. 59 P.3d ¶¶ ¶¶ “applies equally” Ciotti, stated that our decision decision in where we (new (changes to 85-2-402 permits) 85-2-311 water use to § proof burden of applicant’s use “an permits) because n.1, statute,” Ciotti, Mont. at 54 essentially the same under either Rather, we n.1, not so state in Clinch. P.2d at 1076 we did issue new water only that the DNRC not reaffirmed explicitly great length, Axes and all state-law argues, that the The DNRC also diversion, place of point right” their right have a “constitutional holders the DNRC use, storage. Setting issue of whether use, place aside the purpose question the Axes and state-law standing on behalf of to raise this has holders, (see 41) necessary- Opinion, its resolution is agree the Court I with at hand. in the case

permits holding parties on the Reservation-a that do not now dispute.5 Thus, question whether, a remains as to

¶67 under the amended statutory language, showing an applicant must make is still “essentially 85-2-402].” the same under 85-2-311 and In other [§ § words, though may even the DNRC not issue use permits new water Reservation, may on the approve changes existing it nevertheless to water uses question Reservation? This represents portion holding of our in Ciotti that we did not reaffirm in explicitly Clinch. Ciotti, 54 n.1, Compare n.1, 278 Mont. at Clinch, 923 P.2d at 1076 with 1, 27-28, Stults, ¶¶ 36-37. ¶¶ position The Tribes’ is that the DNRC such approve

changes. that, More specifically, allege law, the Tribes as a matter of an for applicant change existing in an use on Reservation still cannot prove proposed change “adversely will not affect” the Tribes’ reserved water until those have been quantified. Accordingly, maintain, the Tribes it is not for the possible DNRC to make the requisite and, no-adverse-effect determination thus, approve any the DNRC cannot applications change existing to an water use on the Reservation. context, When particular challenge considered this regulation

DNRC’s of water relatively use on the Reservation is narrow. The challenging only Tribes are ability DNRC’s to make particular 85-2-402, Yet, determination under MCA. this § while narrow, challenge is it nevertheless implicates a more fundamental far-reaching question: jurisdiction whether the DNRC has regulate waters within the exterior boundaries of the Reservation If place. authority, first it does not have such approval then its an application change existing an irrespective is void of whether the applicant prove was able to lack of effect requisite adverse 85-2-402(2)(a). Ciotti, under special his concurrence in Justice § Leaphart characterized this issue as a inquiry. argued “threshold” He “[w]e cannot the question applicants address of whether the can comply requirements making with the of the Water Use Act without applications permits application Ciotti new involved two existing water use and one (all Reservation). Ciotti, permit water use on the See 278 Mont. Thus, necessarily ability process at 923 P.2d at 1075. we addressed the DNRC’s types application. Clinch, however, original proceeding both was an in this Court not involving any particular type application, analysis the amended our addressed only. Clinch, 1, 14-28; Clinch, (Rodeghiero, version of 85-2-311 Judge, See see ¶¶ but dissenting) (noting provided that an to this Court the DNRC affidavit uses). pertained permitting changes both to the of new uses and to jurisdiction apply that the state had determination threshold Ciotti, in the first instance.” Act to the tribal waters Water Use J., concurring). specially (Leaphart, at 923 P.2d at 1083 Mont. to which However, answer jurisdictional question-the reserved to the federal on federal law-had been

depends large part District in the United States pending courts virtue of a lawsuit CV-92-54-M-DWM) (No. at the time of Montana Court for the District Ciotti, 53, 923 1075; Ciotti, P.2d at decided Ciotti. See 278 Mont. we 65, 923 J., concurring). (Leaphart, specially P.2d at 1082 278 Mont. May the DNRC in against had filed that lawsuit Tribes in the Montana simultaneously filing of the Ciotti lawsuit with Ciotti, challenged the federal suit First Judicial District Court. Like waters; Act to Reservation application of Montana’s Water Use however, Ciotti, exclusively in state-law unlike which the Tribes raised claims, exclusively the federal suit raised federal-law claims. See Ciotti, 53, 1075; Salish v. 278 Mont. at 923 P.2d Confederated (9th 1994). Simonich, 1398, Specifically, 29 F.3d Cir. the Tribes Act alleged complaint preempted in their federal that the Water Use law; the Act to application federal DNRC’s of Reservation waters violates the McCarran Amendment and Fourteenth process; impairs obligations Amendment due and that the Act set July 16,1855 975, thereby Treaty Hellgate, forth of Stat. (U.S. 1). (These I, 10, violates the Contract Clause Const. art. cl. in the their for support complaint claims set forth Tribes’ brief of temporary restraining injunction order and filed in the District Court. Simonich, 18, v. Appellee See also Brief of Salish Confederated 93-35103).) (9th 1994) (No. F.3d 1398 Cir. lawsuit, their federal Contemporaneously filing with the to stay proceedings pursuant Tribes filed motions to the federal Co., 496, U.S. 61 S.Ct. 643 Railroad Comm’n Texas v. Pullman (1941), litigate foregoing federal right and to reserve their to Louisiana State Bd. pursuant England claims in federal court (1964), Examiners, 411, pending 375 U.S. 84 S.Ct. Medical The United claims in the Montana courts. resolution of their state-law Simonich, motions, 29 F.3d at granted District Court these see States the Ninth Circuit Appeals and the United States Court of for Simonich, order, 29 F.3d at the district court’s see sustained of Montana’s application of whether Consequently, question federal law was-and still Act to waters violates Water Use Reservation Indeed, the Tribes so notified both is-reserved to the federal courts. Notwithstanding in the case at hand. the District Court and this Court reservation, however, appropriate necessary, it is both for the follow, reasons which this Court to address the threshold jurisdictional question heretofore left unanswered.

B In England, Supreme Court held that when a federal court deciding abstains issue of federal law to enable the state issue, litigant may courts to address an antecedent state-law right disposition reserve his to return to federal court for the of his 419-22, England, federal claim. 375 U.S. at 84 S.Ct. at 467-68. Court reasoned that objections any

[t]here are fundamental that a conclusion litigant properly jurisdiction who has of a invoked Federal District Court to consider federal constitutional claims can be compelled, own, without his consent and no through fault his accept instead a state court’s determination of those claims. Such a result unqualified would be at war with the terms which Congress, authorization, pursuant to constitutional has conferred courts, specific categories jurisdiction upon the federal and with a Federal principle properly appealed “When court is jurisdiction, duty in a case over which has law it is its to take jurisdiction plaintiff such of a party .... The choose properly Federal court where there is a choice cannot be denied.” England, (ellipsis original, 375 U.S. at 84 S.Ct. at 464-65 omitted). citation and footnote More recently, Supreme explained purpose Court

Pullman abstention in the context of an England reservation:

“Typical” England generally cases involve federal constitutional challenges to a state statute that can be if a state court avoided cases, construes the statute in a In such particular manner. purpose opportunity is not to afford state courts an abstention adjudicate functionally an issue that is identical to the federal contrary, To the question. purpose of Pullman abstention such the federal resolving question cases is to avoid encouraging may a determination that moot the federal state-law controversy. Hotel, Francisco, City County 545 U.S.

San Remo L. P. v. and San omitted). (2005) (footnote 323, 339, 2491, 125 S.Ct. 2502 A a federal claim must inform the state litigant who has reserved is, courts what that claim so that those courts construe the state- 420, light England, of the federal claim. 375 U.S. at 84 law issue (As earlier, at hand. at 467. noted the Tribes did so in the case S.Ct. his event to be denied However, litigant no 70, supra.) See ¶ that he court, clearly appears unless it return to the federal right for decision his federal claim reservation submitted freely and without there. there, and had it decided courts, litigated it by the state 467, 421, at 468. 419, 84 S.Ct. England, 375 U.S. prevent “the cannot parties Court noted that Supreme if it question on the federal rendering court from a decision

state 421, But the England, 375 U.S. at 84 S.Ct. 467. chooses to do so.” courts, sharing that “state the abstention presumed Court also harmonious relation between state purpose furthering doctrine’s litigant’s a reservation ofhis federal authority, respect and federal will England, the federal courts.” 375 U.S. at claims for decision (citation n.12, internal marks quotation 84 S.Ct. at 468 n.12 and omitted). Moreover, a the Court noted that when reservation been made, right to return to the federal court “will in all events be (unless litigant voluntarily fully litigated his preserved” reservation). England, despite federal claims in the state courts 421-22, suggests 375 U.S. at 84 S.Ct. at 468. This that decision rendered the state court on the reserved federal claims will be in See, advisory opinion. e.g., the nature of an 28 East Jackson (Ill. 1978). Rosewell, App. Inc. v. 380 N.E.2d 895 Enterprises, time, however, unlikely Supreme At the same it seems contemplated England prevent Court that an reservation would agency addressing question state court or from administrative jurisdiction particular controversy-even its own over a case or when requires agency that determination the state court or administrative law, Indeed, federal as in the case at hand. such an interpret Court’s understanding England Supreme would conflict with the 1235, pronouncement Arbaugh Corp., recent v. Y & H 126 S.Ct. Court, (2006), “courts, including independent have an exists, subject-matter jurisdiction obligation to determine whether added). challenge any party” (emphasis even in the absence of a authority power Jurisdiction the fundamental of court involves and hear a case or issue. agency or an administrative to determine 304, 30, 1244; Stanley Lemire, 2006 MT Arbaugh, 126 S.Ct. at v. ¶ 643, Diesen, MT 489, 30, (citing 148 P.3d State v. Mont. ¶ ¶ 5, 712, 5); 55, 964 P.2d Auto Parts 290 Mont. ¶ ¶ ¶ 72, 38, 40, 38, 23 Div., 2001 MT 305 Mont. Employment ¶ Relations ¶ can never be forfeited or Accordingly, jurisdiction P.3d waived, jurisdiction may sponte. be addressed sua questions

334 1244; 32; Reeder, 2004 MT Arbaugh, Stanley, S.Ct. at State v. ¶ 244, 4, 15, 4, 1104, 323 Mont. 97 P.3d ¶ ¶ ¶ principles ignore jurisdictional It contravene these would ¶77 may Court nor the question implicated here. Neither this DNRC power regulate that has the waters on the presume State Likewise, proceed possible Reservation. the DNRC in the jurisdiction authority simply question absence of because the of its is on hold in the United States District Court. The State either has not; not, if jurisdiction over Reservation waters or it does it does If any regulatory respect action taken with to those waters is void. “ anything, ‘furthering doctrine’s purpose abstention ” authority,’ England, harmonious relation state and federal between n.12, Pullman, (quoting 375 U.S. at 421 84 S.Ct. at 468 n.12 312 U.S. 501, 645), 61 S.Ct. at is hindered when state courts and agencies England administrative are restrained an reservation jurisdiction. addressing question subject-matter of their own address, reasons, it a threshold For these is essential we matter, jurisdiction over waters within the whether As Justice Leaphart exterior boundaries Reservation. observed Ciotti, jurisdiction regulate “[i]n the absence of state water, Act compliance administer tribal with the Water Use Ciotti, 65, J., (Leaphart, P.2d at 1082 immaterial.” 278 Mont. concurring). specially

C majority likewise concludes that we must address this jurisdictional however, conclusion, question; reaching threshold merely that “it this Court to majority proffers appropriate law, regardless address of federal of whether those claims have issues implications 20 n.5. Opinion, been raised elsewhere.” Given ¶ reservation, I doing England dispute so in the face of an must our broad, majority’s addressing statement. Our certain unqualified case, England notwithstanding issues in this the Tribes’ federal-law reservation, obligation due to our “independent is warranted exists,” subject-matter jurisdiction Arbaugh, determine whether any categorical principle lacking S.Ct. at not because of some England deference to the doctrine whatsoever. Notably, majority support authorities cited do not thing, one neither Arizona v. San

majority’s broad assertion. For (1983), Arizona, Tribe 463 U.S. 103 S.Ct. Apache Carlos Tribes, Salish and Kootenai Greely nor State ex rel. v. Confederated (1985), reservation.6 England 712 P.2d 754 involved 219 Mont. obligation another, have a solemn the maxim that state courts And for (see Opinion, cases in Indian water to follow federal law n.5) reach a federal claim authority for a state court to is not (Indeed, appear we to be is not before the court. properly otherwise analyzing federal-law England-by ignoring law-specifically federal courts.) to the federal specifically that the Tribes have reserved issues may address issues regard, majority’s reasoning-that In the we this federal circular. are to follow law-is required federal law because we properly unless we have before have no need to follow federal law We law, the here-one involving question federal and that is us an issue majority the fails to answer. which at least by majority-Simonich-is third case cited relevant The

¶81 Simonich, the Ninth Circuit England reservation issue. stated as follows: hearing deciding enjoined

The state court is not England simply The order reserves to federal claims. reservation jurisdiction gives federal court to decide the federal claims. It to the state option presenting the Tribes the all their claims their federal claims to the federal waiting presenting court or litigation court after the state ends. added).

Simonich, majority selectively The (emphasis 29 F.3d at 1406 (see n.5), leaving quotes passage Opinion, the first sentence of this ¶ The federal court has clarifying language out the crucial which follows. unless and until the Tribes jurisdiction to decide the federal claims courts, to the state which option present exercise their those claims agree have not done this case. See also parties Tribes Systems, Computer Corp., Inc. v. Curriculum 35 F.3d Instructional (3rd 1994) (“It litigant 813, displaced is the actions of the Cir. controlling.”). are which courts, that “state England Court assumed in Supreme furthering the harmonious

sharing purpose doctrine’s abstention authority, litigant’s respect relation state and federal will between decision the federal courts.” reservation of his federal claims for (citation and n.12, at 468 n.12 375 U.S. at 421 84 S.Ct. England, omitted). here, doing are not so marks Because we quotation internal 129, 122 271, 329 Dabney, P.3d 2005 MT Mont. The same is true of v. Leichtfuss addressing ground majority apparently relies as an alternative on which the n.8). (citing Leichtfuss, Opinion, 37¶ 14 federal-law issues in this case. See Unfortunately, majority explanation why required.

a detailed provide has declined to one.

IV analyzing For the threshold purposes question whether waters, jurisdiction over Reservation it is essential first to rights. principles set forth the fundamental of Indian reserved water Tribes, Greely In State ex rel. Salish and Kootenai Confederated (1985), explained appropriative Mont. 712 P.2d 754 we that state origin and Indian differ in reserved water Greely, thing, 219 Mont. at 712 P.2d at 762. For one definition. law, governed by are defined and state state-created water recognized by whereas Indian reserved water are created or statute, treaty, agreement, establishing federal or executive order 89, 90, Greely, Indian reservation. 219 Mont. at 712 P.2d at 762. Furthermore, on actual appropriative state based explained requirement use. We as follows: states, Montana, including adopted prior

Most western on the appropriation apportioned doctrine under which water is appropriators, basis of use. “As between the first in time is 85-2-401(1), An right.” appropriator first Section MCA. long generally specified quantity entitled to of water so actual, 85-2-404, beneficial use is made of the water. See MCA. § divert, Generally, appropriator right of a state-created must 85-2-102(1) & impound appropriate. or withdraw water to See §§ 85-2-234(5)(g), MCA.

Greely, rights, 219 Mont. at 712 P.2d at 762. Indian reserved water contrast, In by by are neither created use nor lost nonuse. other words, they Greely, or actual 219 present exist without a use. generally Mont. at 712 P.2d at 762. Such fall into two categories: carry out the of the reservation purposes those reserved transforming agrarians) the Indians into and those reserved to (e.g., fishing, preexisting aboriginal practices (e.g., maintain uses or Federal hunting, gathering, pasturing). See Cohen’s Handbook of (Nell eds., 2005); 19.02, et al. Jessup Indian Law at 1171-73 Newton § Blumm, in 4 and Rights, Michael C. Reserved Water Waters Water (Robert 37.02-37.02(a)(2), ed., at 37-21 to 37-28 E. Beck Rights §§ 2003); in the East: ed., Royster, Bender Judith V. Winters Matthew States, Mary & Rights Riparian Tribal Reserved to Water in Wm. (2000). Policy & 173-79 Envtl. L. Rev. The former-Indian reserved water for reservation particular from the act of lands

purposes-“spring reserving for purposes, typically transforming productive nomadic Indians into 37.01(b)(2), Blumm, Rights, agrarians.” Reserved Water at 37-13. This implied-reservation-of-water originated doctrine in Winters v. States, 564, 28 (1908), Supreme United 207 U.S. S.Ct. 207 wherein the agreement Court held that the 1888 that resulted the creation of the Belknap Fort Indian implied Reservation reservation water to Winters, accomplish purposes treaty agreement. ofthe See 207 U.S. 575-77, 28 211-12; Greely, 89, 712 at S.Ct. at see also 219 Mont. at P.2d reaching conclusion, at 762. In the Court first noted that entering into the agreement, policy government was the of the and desire the Indians to from a a pastoral nomadic to Yet, people. and, the lands on were they which to settle were arid irrigation, Winters, “practically 576, 28 without valueless.” 207 U.S. at questioned, S.Ct. at 211. The Court rhetorically, Indians, whether the though they “had command of the and lands waters-command use, all their hunting, beneficial whether kept grazing roving for stock, herds of or turned to agriculture and the arts civilization”-would have reduced area their occupation simultaneously given up the waters which made it valuable (internal adequate. Winters, 576, 28 207 U.S. at S.Ct. at quotation omitted). marks deciding inferences, between two one which support purpose would of the agreement between the Indians and government and the other impair it, which would or defeat mindful of agreements the rule of interpretation of and treaties with Indians, ambiguities under occurring which will be resolved from standpoint Indians, of the the Court concluded that the did Indians not intend relinquish their to water sufficient to them sustain Winters, 576-77, on the reserved land. 207 U.S. at S.Ct. Indian therefore, reserved water purposes, reservation

are those which were implicitly agreement reserved establishing the reservation purposes so for which the land 89-90, set can Greely, was aside be fulfilled. See Mont. 712 P.2d such, they at 762. As are defined purposes reference to the stock; reservation-e.g., agriculture; roving grazing developing, herds preserving, producing, sustaining resources; or food and other livelihood; providing Greely, and “the arts of civilization.” See 219 89-90, 92-93, 762, 764-65; Winters, Mont. at 712 P.2d at 207 at U.S. 576, 28 1358, 211; Anderson, S.Ct. at v. see also United States 736 F.2d (9th 1984) (observing 1362 of an Cir. that the establishment Indian

338 to fulfill implies a to sufficient water right unappropriated reservation reservation, such tribal reserved that and that purposes of the Indian rights” vest on the date of creation “Winters Mexico, 696, 698-700, 438 U.S. (citing United States New reservation (1978), Winters, 576-78, 28 3012, 3013-14 U.S. at S.Ct. S.Ct. 207 98 211-12)). above, not limited to rights as noted such Again, at water; rather, actual, they may of the include future uses present 93, 762, 90, at P.2d at 765. Greely, needs and uses. 219 Mont. 712 contrast, rights aboriginal practices, by for Indian reserved that existed creation uses of water preserve before P.2d at 764. 92, 712 As we Greely, explained Mont. at reservation. 219 occupation of land can create Greely, “[Uninterrupted ” 90-91, (citing at ‘aboriginal Greely, 219 Mont. at 712 P.2d 763 title.’ 799, Indians, 119, 122-23, 58 304 U.S. S.Ct. States v. Klamath United (9th Adair, 1394, Cir. (1938), States v. 723 F.2d 1413 801 and United 1983)). “aboriginal aboriginal right includes “an to the water This title” through Adair, as it its homeland.” 723 F.2d the Tribe flowed used Thus, time “aboriginal-Indian exist from 1413. reserved at merely recognized by the document that reserves immemorial and are 97, (emphasis P.2d 767 Greely, 219 Mont. at at the Indian land.” (“The added); at 1414 Tribe’s Adair, [Klamath accord 723 F.2d rather, Treaty, aboriginal water] were not created the 1864 Indeed, rights.”). continued existence of these treaty confirmed the Greely, aboriginal holdings.” implicitly do not diminish “[t]reaties 90, 712 contrary, Indian reservation “[a]n Mont. P.2d at 763. To the at rights of the any pre-existing possessory to protect be defined will contrary clearly appears in the document Indians unless a intent 91, 712 Greely, Mont. at P.2d the reservation.” statute that created “ treaty fact is not a principles derive from the ‘the at 763. These Indians, them-a grant but a grant ” 90, Greely, at 712 P.2d granted.’ 219 Mont. reservation those not Adair, 1412-13, quoting at in turn United 723 F.2d (quoting at (1905)).7 662, Winans, 198 U.S. 25 S.Ct. States v. aboriginal purposes for An Indian reserved Adair, 723 F.2d commonly “non-consumptive.” “unusual” Adair, at the Ninth Greely, at 712 P.2d 1411; Mont. aboriginal practices 7Recognition is sometimes of Indianreserved water 37-7, 37.01(b), Blumm, Rights, at 37-6 to § Water Reserved traced Winans. See Policy 37-21; Mary 37.02, Royster, & L. & Rev. at 177-78. Envtl. 25 Wm. Circuit explained discussing right unusual nature while water hunting fishing reserved to further a purposes, tribe’s and as follows: right The holder of such a is not entitled from to withdraw water industrial, the for agricultural, consumptive stream or other uses (absent rights). Rather, independent consumptive the entitlement right of the to prevent appropriators depleting consists other the protected any streams waters below a level in area where the non-consumptive right respect, applies. right In this the water reserved for the Tribe to hunt and fish has no corollary in the prior appropriations. common law of

Adair, omitted). added, Thus, 723 F.2d at 1411 (emphasis citation right reservation of to continue an aboriginal practice concomitantly right reserves the quantity water sufficient in ensure that the in practice does fact This category rights continue. of plays a central role in Tribes’ contention instant case that the DNRC cannot make a no-adverse-effect determination until the rights Tribes’ reserved quantified. have been The origin of the Tribes’ rights July 16,1855 reserved water is the Treaty Flatheads, with the (commonly &c. Treaty referred to as the of Hellgate), 12 Stat. reprinted Kappler, Indian Laws Affairs: (1904). Treaties, Tribes, and 722-25 According they “ceded to the United States of aboriginal millions acres of their homelands and in exchange reserved the Flathead Indian Reservation for the ‘exclusive use and of benefit said confederated tribes as Indian reservation’ perpetuity” (quoting of Treaty Hellgate). Treaty Article 2 the of Hellgate secured the aboriginal fishing, hunting, gathering, Tribes’ pasturing rights8 and and implied the Tribes’ reserved water under the Winters doctrine accomplish purposes treaty “to of the agreement,” Greely, 219 Mont. at at rights, P.2d 762. These however, yet quantified; words, have not been precise other quantity scope or encompassed fishing, the Tribes’ express hunting, and gathering, pasturing precise quantity necessary fulfill purposes of the not yet reservation have been (As above, determined. noted negotiations the Tribes have been in with Rights so, Montana Reserved Water Compact Commission to do Treaty Hellgate provides, part: right Article 3 ofthe in relevant “The exclusive taking running through bordering of further secured to said all fish in the streams said reservation Indians; right taking also all as fish at usual places, Territory, erecting temporary accustomed in common with citizens of the and of buildings berries, curing; together privilege hunting, gathering with the roots and pasturing upon open their horses and cattle and unclaimed land.” discloses, negotiations the record us those are still

but far as before ongoing.)

V Turning jurisdictional question, now the threshold state authority regulatory over waters within the exterior boundaries Here, type on the of water issue. depends Reservation regulatory putative action directed at state-law water DNRC’s (the Axes); however, non-Indians because the Axes’ held Hellgate,9 postdate Treaty the 1855 and because Tribes’ reserved yet quantified, possible present have not been it is not are, fact, know rights “empty” rights the Axes’ in actual to to whether rights water encompassed waters that are within Tribes’ reserved (as rights i.e., to on opposed surplus to excess or non-reserved — —waters Reservation). are, fact, rights if the Axes’ to non- But even water actual ¶91 waters, suggested the Tribes have that the DNRC’s assertion reserved an regulatory authority rights concomitantly of over such unlawful the Tribes’ regulatory authority unquantified assertion of over rights. Essentially, they allege that the DNRC’s reserved water existing to water use on the application of an approval necessarily competing of “the Reservation constitutes determination view, result, existing right[s].” Tribal water As a in the Tribes’ in, to, impermissible and engaged proceedings DNRC is its amount unquantified the Tribes’ reserved water “piecemeal adjudications” of States, River Conservation Dist. v. United rights, see Colorado Water (1976). 1236, 1247 800, 819, 96 S.Ct. 424 U.S. addition, inform us that Amici Curiae Affected Landowners non-Indian successors to

some landowners on the Reservation are to allegedly rights and landowners possess Indian allottees that these Treaty by of the waters reserved for the Tribes portion 2000, According published by to the Notice the DNRC November Public However, priority rights 1941 and because there Axes’ two water have dates of Reservation, adjudication rights yet on the the substance has as been no water Adjudication rights MacIntyre, D. Montana’s Axes’ is unknown. See Donald 211, Structure, Blueprint Improving L. 49 Mont. Rev. the Judicial Waters-A for (“The (1988) filings existing exaggerated good the existence of lack of records and prior in Montana to 1973 were neither of the fact that water records is indicative prioritized. in the bundle quantified of sticks elements are the essential elements nor These two ‘existing Therefore, really recognized right. no one knows what as a water 3(1) IX, [by recognized of the Montana right’ is and confirmed Article Section Constitution], right’ only right Logically, is determined can be whatever ‘the (footnote omitted)). existed, priority, July 1, 1973.” quantity to as of have both as Hellgate. generally Walton, Tribes See Colville v. Confederated (9th 1981) 42, Act (discussing F.2d 49-51 Cir. the General Allotment 388, transferability water rights Stat. of reserved purchasers). from Indian allottees non-Indian Affected Landowners if also assert that “even an Indian have a to certain tribe needs, for future if are they currently using water not that water it is available for appropriation non-Indians.” (A) Thus, implicate regulatory authority the facts of this case state (B) rights,

over Indian regulatory authority reserved state over (C) excess, waters, regulatory authority non-reserved state over Indian passed reserved water that have to non-Indian (D) successors, and state regulatory authority over Indian reserved currently reason, in use. For this comprehensive analysis, sake of a necessary it is clarify on limitations each.

A With respect first, jurisdiction state over Indian reserved only exists by Congress. extent authorized See (“[A]ll Mont. I any Const. art. lands owned or held Indian or Indian tribes shall jurisdiction remain under the absolute and control congress of the ... United States until revoked the consent of the United States and people Montana.”); Walton, 647 F.2d at 52 (“[W]ater a federal not subject regulation reservation is to state absent explicit recognition authority.” federal of state (citing Federal Oregon, (1955)); Power Comm’n v. 349 U.S. 75 S.Ct. 832 Williams Lee, 217, 218-19, U.S. (1959); 79 S.Ct. 269-70 see also (“Because Blumm, 37.02, Rights, Reserved at they Water 37-21 § rights Constitution, federal under the Supremacy Clause of the state rights laws cannot affect Indian reserved approval.” without federal (footnote omitted)); Greely, 88, 219 Mont. at 712 P.2d at (noting 761-62 280, (1953), 67 “specifically Public Law Stat. 588 withheld from jurisdiction adjudicate state courts to or ownership possession of‘any rights’ ”); [Indian] water Arizona v. San Apache Carlos Tribe of 545, (1983) Arizona, n.11, 3201, 463 U.S. 560 & 103 S.Ct. 3210 & n.11 (same, noting but also that Public 280 special Law does not limit the given by Amendment, consent jurisdiction the McCarran discussed below). 1952, Amendment, In Congress enacted the McCarran 66

¶95 Stat. 560, 666, provides, 43 U.S.C. which in part, relevant as follows: § given join any “Consent is the United States as in a defendant suit (1) adjudication for the use rights system of water of a river (2) source, rights.”

or other for the administration of such 43 U.S.C. 666(a). give The immediate effect of Amendment was “to consent jurisdiction in in jurisdiction the state courts concurrent with involving federal courts controversies federal to the use of over River, 809, at water.” Colorado 424 U.S. 96 S.Ct. at 1242. Although expressly the McCarran Amendment did not waive the tribes, sovereign immunity Supreme of Indian Court held in Colorado River that the Amendment nevertheless extended state rights as adjudicatory authority to Indian reserved water well as River, 809-13, at rights. federal reserved water Colorado U.S. 84, 1242-44; at Greely, S.Ct. at see also Mont. at 712 P.2d 759. that, “bearing Indian ubiquitous Court reasoned in mind nature of Southwest, it is clear that a construction of the excluding coverage enervate Amendment those its would objective.” River, 811, the Amendment’s Colorado U.S. at 96 S.Ct. at 1243. whether, Greely, light addressed of the McCarran we

Amendment, specifically, the State-more the Water Court of jurisdiction Indian reserved water Montana-could exercise over that Article I of the 1972 Montana within Montana. We observed “ that all Indian lands in Montana remain Constitution declares ‘shall jurisdiction congress of the under the absolute and control United States... until revoked the consent the United States ” 85, Greely, of Montana.’ 219 Mont. 712 P.2d at 759 people Const, I). original) (quoting Mont. art. Consent had been (ellipsis Amendment; in the form of the McCarran given the United States given thus, question people was whether the of Montana had also 86-87, 712 P.2d Greely, such consent. See 219 Mont. at at 760. affirmative, reasoning that “the question We answered this in the through accomplished people consent of... the of Montana” could be existed-namely, and that an enactment legislative enactment such (Title MCA). 85, 2, Chapter Greely, 219 Mont. at 87- Water Use Act See Act, 89, Among things, P.2d at 760-62. other which became 1, 1973, July adjudication for the of water provides effective (Title 2, 2, MCA), issuing 85, process well as a new Chapter Part (Title MCA) 3, and for Chapter Part permits (Title 85, 2, Part Chapter water uses authorizing changes MCA). legislature’s of the Water that “the enactment We concluded people binding Act consent Use constitutes valid Indian reserved Congress’ grant jurisdiction of state over Montana to 88-89, Greely, 219 Mont. at 712 P.2d rights.” “adequate” We then addressed whether the Water Use Act was to adjudicate Indian water given “ubiquitous” reserved their and regard, “unusual” In this the following nature. we made observations Act, First, concerning as it then stood. we observed the Act that recognized 1, and confirmed water prior July that existed 1973, permitted and Court to reserved Water treat Indian Greely, See rights differently rights. water from state appropriative 91, at at respect 219 Mont. 712 P.2d 763. With hunting Tribes’ and fishing rights, we noted: right to preserve hunting reserved tribal and

fishing rights is non-consumptive. unusual in that it is A reserved right hunting fishing purposes and right “consists of the prevent appropriators other from depleting the stream waters a protected below in any level area the non-consumptive where right applies.” Adair, 723 F.2d at 1411.

Greely, 93, at 219 Mont. 712 P.2d at 764. Because the recognized Act non-consumptive and instream uses of water for fish wildlife, we concluded that it “sufficiently adjudication was broad” to allow of water reserved to protect hunting tribal fishing rights, including protection depletion from the See of streams protected below a level. Greely, 91, at Furthermore, Mont. 712 P.2d at 763. we noted that Act recognized that a right may reserved water exist without actual, present Greely, use. See 93-94, 219 Mont. at 712 P.2d at 765. Finally, we permitted observed the Act the Water Court to apply federal in determining law a proper priority date for each Indian reserved and that it permitted negotiate tribes to with the agree State and upon the extent of the reserved water of each Greely, tribe. See 91, 92, 712 763, 764. at Mont. P.2d at Given these concerning observations scope meaning Act, of Water Use we concluded that the Act “on adequate adjudicate its face is Indian rights.” Greely, 95, reserved 219 Mont. 712 P.2d at 766. Thus, Greely under and the McCarran Amendment-in (1)

particular, subsection of Amendment-the State jurisdiction adjudicate Greely, rights. 84-85, Indian reserved water 219 Mont. at 88-89, 759, 712 P.2d jurisdiction 762. Such in the vested Water the DNRC. See re Montana, 3-7-101, Court of not -501, MCA; §§ Conservation, & Dept. Nat. Res. 221, 228-32, 226 Mont. 740 P.2d Court, 1096, 1100-02 (1987); State ex rel. Jones v. Dist. 283 Mont. 6- (1997). 938 P.2d Importantly, grant the McCarran Amendment did regulatory reservation. See states over powers waters on federal (2)

Walton, provide of the Amendment does 647 F.2d at 53. Subsection however, “administration” rights; of Indian reserved water for the “administration” to the final decree entered in a in this context refers (1) U.S., Agency South Delta Water v. adjudication. subsection See (9th 1985); Interior, 531, v. United 767 F.2d 541 Cir. Dept. Orff (9th 2004); 1137, Wyoming States, F.3d 1143 n.3 Cir. v. United 358 1996). (D. Delta, States, 1030, 1035-36 Wyo. In South F.Supp. 933 explained: Circuit Ninth adjudicate the administration of water

Logically, a court cannot plaintiffs’ If claim rights rights determines those are. until it what merely because it relates to administration were reviewable rights, plaintiffs proving validity without first of that of water claim, general adjudication requirement then the of a stream (1) any party could superfluous; contained subsection would be merely seeking it is agency arguing review of action gain (1) (2) administration, not subsection subsection determination, of rights. water concluded, Delta, Therefore, court 767 F.2d at 541.

South (2) immunity only under subsection “Congress intended waiver of (1) has been general after a stream determination under subsection Delta, regard, quoted F.2d at In this the court made.” South 767 following under! definition of “administration” approval with “ (2): it, to enforce its ‘To administer a decree to execute subsection and to meaning, to resolve conflicts as its construe provisions, j ” Delta, language.’ (quoting 767 F.2d at 541 United interpret its South (D. 1968)); Hennen, 256, In re F.Supp. v. 300 263 Nev. States cf. Big Horn River Rights All to Use Water in the Adjudication General (“The 1988) 76, 115 (Wyo. engineer role 753 P.2d state System, law, rights as ... state but to enforce the reserved apply not to law.”), abrogated grounds, on other principles decreed under of federal 1998). there had State, 149, (Wyo. 151 Because Vaughn v. 962 P.2d general rights stream adjudication no relative prior been review, that “there can the Ninth Circuit concluded be the case under meaning rights’ such within the no suit ‘forthe administration of Delta, (quoting 767 F.2d at 541 Amendment.” South McCarran 666(a)(2)). U.S.C. § Likewise, hand, reserved water in the case at the Tribes’ (As already, the Tribes are adjudicated. noted

have not been negotiations quantify rights through their with attempting instead.) Thus, Rights Commission Compact Reserved Water Montana jurisdiction over Indian reserved the State’s because only Amendment, exists to the extent authorized the McCarran (2) Congress immunity because intended a waiver under subsection only of the Amendment a general stream determination under after (1) made, been jurisdiction subsection the State’s over the Tribes’ extends, present, only adjudication reserved water at Furthermore, in Water Court-nothing any those more. such adjudication be comprehensive, piecemeal. must See San Carlos 569, 3215; River, Apache, 463 U.S. at S.Ct. Colorado 424 U.S. 819, 1247; 96 S.Ct. at United States v. District Court and For 520, Eagle County, 525, 998, (1971); Dugan U.S. 91 S.Ct. Rank, (1963). 372 U.S. 83 S.Ct. reasons, the jurisdiction For these DNRC lacks over the Tribes’

reserved rights.10

B 104 With to state respect regulatory authority excess, over Reservation, non-reserved waters on the authority such has been confirmed in such Anderson, cases as United States v. 736 F.2d 1358 (9th 1984), though Cir. authority by such no automatic, means see (9th 1981). Colville Walton, Tribes v. 647 F.2d 42 Cir. In Confederated Anderson, the Ninth Circuit concluded that the State Washington of regulatory jurisdiction could exercise its “over use surplus, the of non- by reserved Chamokane Basin waters on nonmembers non-Indian fee lands within the Spokane Anderson, Indian Reservation.” at F.2d 1366. In reaching conclusion, this the court reasoned that “the interest jurisdiction of the state in exercising its infringe will not on the tribal self-government to nor impact on the Tribe’s economic welfare [the water] because quantified Tribe’s have been and will be protected Anderson, the federal water master.” 736 F.2d at 1366. Furthermore, court the observed that no direct preemption federal of Legislators Legislature Amici Curiae of the State ofMontana contend that “the has, far, prevented providing so been for of administration water use on the 3(4).” EX, however, required clear, Flathead Reservation as Article section It is not EX, 3(4), requires-or Though that Article Section even authorizes-such administration. EX, 3(4), Legislature generally “provide Article Section instructs to the for administration, control, regulation rights,” concomitantly and of I Article limits jurisdiction by declaring by any state that “all lands owned held Indian or Indian jurisdiction congress tribes shall remain under the United States of absolute control of ... people until revoked the consent of the United States and of just explained, jurisdiction Montana.” As the State’s over reserved water extends, present, only adjudication rights (by Reservation subsection of of those virtue Amendment). (1) respect excess, of the McCarran And with to non-reserved Reservation, authority exist, regulatory but, explained below, waters on the this question exist. ripe will not be consideration until it has been determined such waters Anderson, occurred, and that regulation had 736 F.2d

state developing comprehensive in Washington’s “the State of interest heavily weighs of surplus for the allocation waters program authority it to its to the excess regulatory extend permitting favor Basin,” Anderson, waters, 736 F.2d at 1366. any, if of the Chamokane contrast, the Circuit concluded that state Walton, by Ninth was in the No Name Creek basin regulation surplus Walton, by the creation the Colville Reservation. preempted hydrological system, The court observed that the No Name F.2d at 52. creek, entirely underground and the located consisting aquifer of an reservation, 45, 52, Walton, 647 F.2d at within boundaries reservation,” impact these waters “has no off the and that the Walton, court further that “state 647 F.2d at 53. The observed System’s] would regulation portion [the of some No Name waters Congress to avoid.” jurisdictional sought confusion create Washington’s Walton, Finally, 647 F.2d at 53. the court noted that to “is limited extending its water law the reservation interest impact will have no case. Tribal or federal control of No Name waters Walton, 647 at 53. rights off the reservation.” F.2d on state water decisions is the A crucial element of the Anderson and Walton Washington regulate were sought the State of fact that the waters Indeed, was the Anderson decision “[c]entral” non-reserved waters. quantified. had been Spokane the fact that the Tribe’s water seeking Anderson, Walton, F.2d at 1366. And state was by the Name Creek that had been found regulate portion No Tribes’ “surplus” court to the Colville Confederated lower be fact, Anderson, a matter of requirements. See 736 F.2d at 1366. As at the outset explained in the Walton case United States District Court opinion first, that “the Court must determine of its memorandum Walton, second, rights of the Tribe and defendants relative water Tribe, States, the State of authority of the the United the relative subject and control water.” Washington regulate, allocate (E.D. Walton, 1320, 1323 460 F.Supp. Tribes v. Colville Confederated 1978) added). (emphases Wash. hand, contrast, the reserved In the case at Tribes’ engaged Tribes are quantified. And because the

rights have not been Commission, Compact Rights the Water negotiations with Reserved 85-2-217, may rights those occur. See proceeding adjudicate no Thus, no ascertainable non- yet, there MCA. which the DNRC Reservation waters over reserved/excess/surplus adjudicate the “Logically, a court cannot regulatory power. might exert rights rights administration of water until it determines what those Likewise, Delta, are.” South 767 F.2d the DNRC cannot excess, logically regulate rights to non-reserved Reservation waters (the authority the proper negotiated until Water Court a compact) or (1) (2) actually determines that such waters exist11 that those rights-i.e., rights being subjected regulation the by the DNRC-are excess, fact non-reserved “empty” waters and not to tribal waters,12 Anderson, reserved If see 736 F.2d at 1365. there is a (see 14), “predicate” issue in this case Opinion, this is it. Until the ¶ foregoing made, two determinations have been question whether may the DNRC regulatory authority excess, exercise over non-reserved (For waters on ripe. reason, the Reservation is not this as stated at the outset, majority’s sovereignty proceeds discussion-which premise dubious permits are, state-issued to Reservation waters fact, in actual to non-reserved premature.) waters-is

C foregoing analysis mandates the same conclusion with respect to Indian reserved water acquired by non-Indian Walton, successors to Indian In allottees.13 the Ninth Circuit concluded point, posed followinghypothetical On this we to counsel for Amici Curiae during argument: If, end, Affected Landowners oral in the there has been a quantification premised Treaty the Tribes’ reserved water on the 1855 Hellgate law water hypothetical Reservation, junior and those include all water on the then would state- wayside? response, fall In counsel indicated that highly improbable rights would, given was but that state-law water in the scenario, be void. regard, suggests regulate changes DNRC it can person may water uses on the applying change Reservation because a for such a not any appropriate more after the appropriated than he she has and, historically thus, surplus not does matter whether waters exist the source of supply. Yet, are, putative applicant’s appropriation right if the which applies waters to fact, waters, regulatory in actual authority reserved then the has no over irrespective may applicant appropriate any those waters water after theof fact that the more proposed change historically. appropriated than he or she clarification, purchasers. For the cases refer to “non-Indian” successors or However, rights spring recognized by because Indian reserved water from or are agreement government particular tribe, precise between federal term more (in might purchasers words, be person “nonmember” successors or other who is not formerly a member of the tribe and who succeeded to a water reserved for and tribe). Zempel Liberty, 220, 27, 333 held a member ofthe v. 2006 MT Mont. ¶ Cf. 27, 143 (noting P.3d 27¶ that “Indians be tribal or nonmembers” members that, Supreme while United States Court has and between members and referred to “nonmembers” interchangeably, “non-Indians” relevant distinction (citing Hicks, 377 n.2, 121 2304, nonmembers ofthe tribe Nevada U.S. S.Ct. (2001) J., (Souter, concurring))). 2319 n.2 a to use reserved water” and that “an right

that “Indian allottees have Walton, right.” 647 F.2d at 50. As may [that] Indian allottee sell right the court acquired by purchaser, nature of the non-Indian by the Indian allottee does not lose nonuse observed that whereas water, is not true a non-Indian right to a share of reserved the same of purchaser: being acquires right

The non-Indian successor The by passes. at the time title appropriated the Indian allottee a date-of-reservation acquires right, non-Indian also with date, priority appropriates to water that he or she with reasonable of title. If the full measure of the diligence passage after by means and right acquired Indian’s reserved is not use, by is lost to the non-Indian maintained continued successor. thus quantity

The full of water available the Indian allottee conveyed purchaser. non-Indian There no may be to the convey. think right may diminution in the the Indian We however, intended, the non-Indian Congress would have disability other water purchaser, competitive under no vis-a-vis users, may right quantity despite retain to that of water not non-use.

Walton, 647 F.2d at 51. court’s conclusion that a reserved water Walton by if not maintained acquired purchaser a non-Indian is lost subject use-i.e., it-implies use it or that such continued lose Adjudication In re General appropriation to the doctrine. See prior Big System, Use Horn River P.3d Rights All to Water in the (‘We 2002) intended, likely (Wyo. suggest Congress ... once non-Indian, right] be [the to a reserved water would transferred of the subject generally applicable prior appropriation laws (D. Hibner, Idaho state.”); United States F.2d respective 1928) (“[T]he protection of the invoked the courts for the principle prevail his not long Indian as he retains title to lands does as otherwise, any rule man...; application other apply to the white grantee period for an indefinite [non-Indian] such permit would application of his land and withhold the reclaim the balance use, policy recognized against a beneficial which is water to lands.”). It from this that reserved of arid follows development subject, like non- non-Indian successors be rights acquired by waters, authority. regulatory reserved to state However, waters, with question non-reserved whether jurisdiction acquired by DNRC has over reserved water non- Walton, yet ripe. Indian successors court explained the non-Indian purchaser acquire “cannot more extensive Walton, reserved were water than held the Indian seller.” 647 F.2d turn, right, The extent of the Indian seller’s is a function “If irrigable number acres he owns. the allottee owns 10% the irrigable watershed, acreage in the is to he entitled 10% of the water share’). irrigation (i.e., reserved for a ‘ratable This follows provision just for an equal distribution water needed for irrigation.” Walton, at 647 F.2d 51. hand, In the case at the amount of

¶111 Reservation waters reserved Indeed, irrigation yet for is purposes not known. none of the Tribes’ rights Thus, reserved quantified. any water have been reserved water by held non-Indian successors have been quantified also not are, therefore, But if unadjudicated indeterminate. even such (i.e., were accepted quantity by face value at the claimed holder), way there be knowing would no whether the holder had (i.e., overestimated right the extent ofthe had mistakenly incorporated Tribes). into right his or her reserved waters still If belonging had, fact, so, the holder done right then the over which State exercising regulatory would be authority would include a portion ofthe Tribes’ reserved rights-something water permitted not under the Amendment, McCarran as explained above. reasons, For these until such

¶112 time as the reserved water on the quantified, Reservation have been regulatory the State lacks authority over reserved rights acquired by non-Indian successors to Indian allottees.

D Lastly, Amici Curiae Affected Landowners raise an issue concerning unused Specifically, reserved waters on the Reservation. amici assert that if an Indian “even have a right tribe certain needs, water for future if they currently using not that water isit available for appropriation by only authority non-Indians.” The cited amici by support allegedly for this proposition “well-established” Walton, 647 F.2d page opinion, On this Walton Ninth Circuit finding recites the trial court’s were there 237.6 acre feet year per of water to which the Colville Confederated Tribes had a reserved but currently using, which tribes were not after which the court notes as follows: “This water is available for non-Indians, right.” subject superior to the Indians’

appropriation Walton, 647 F.2d at 46. holding Significantly, this observation the court is not Furthermore, appears Walton. the observation the context of above, rights that, as had been

discussing tribal reserved water noted hand, we cannot not- in the case at know whether quantified, whereas exist because we do currently-used reserved waters Reservation yet rights. But most scope know the of the Tribes’ reserved purposes for of the instant discussion of State’s importantly waters, by non- regulatory authority appropriation over Reservation not-currently-used change the Indians of reserved waters does not regard, neglect out the point nature of those waters. In this amici “This qualifying language critical set forth in Walton: by non-Indians, subject the Indians’ appropriation available added). Walton, right.” (emphasis 647 F.2d at 46 In other superior words, any not-currently-used reserved waters on the appropriation of superior in those reserved subject Reservation is to the Tribes’ and, concomitantly, to the McCarran Amendment’s waters jurisdictional restrictions discussed above.

E sum, reserved water jurisdiction the State’s over Indian extent authorized the McCarran only exists immunity a under Congress Amendment. Because intended waiver (“administration”) (2) only subsection the Amendment after (1) (“adjudication”) has general stream determination under subsection (1) yet made, has not and because a subsection determination been rights, the Tribes’ reserved water the State’s respect been made with extends, only to their present, over those jurisdiction in Water Court. adjudication comprehensive proceeding in a use, by Beyond this, may regulate non-Indian fee State ¶116 excess, owners, of non-reserved waters and reserved regulation to Indian allottees. Such acquired non-Indian successors forth analysis pursuant principles set depend proper will on Bracker, 100 S.Ct. Apache Tribe v. 448 U.S. in White Mountain States, 450 U.S. 101 S.Ct. (1980), and Montana v. United (1981).14 However, Tribes’ analysis premature is until the such interpretations majority’s ofBracker doubts about the While I have substantial day Montana, analysis independent another when the of these cases for authority and I leave an self-government” regulatory tribal of state issue of “the interaction 20) actually (Opinion, is before us. time, any Until quantified. reserved water have been reserved water held non-Indian successors are not furthermore, excess, cognizable; cannot be known whether non- so, and, on reserved waters exist the Reservation if whether a particular applicant’s appropriation (i.e., to such waters is not “empty”). reasons, For these jurisdiction the DNRC lacks over waters and, thus,

within the exterior boundaries the Reservation to approve applications existing to change water uses on the Reservation.15

VI foregoing Given the regulatory conclusion that the DNRC lacks authority waters, analysis over Reservation whether the DNRC can make the required by no-adverse-effect determination 85-2- § 402(2)(a), MCA-which is the specifically argued issue in the District Court, on by Court, ruled the District presented on appeal-is, us unnecessary. arguably, Nevertheless, question because this has been fully litigated hand, in the case at strongly disagree because I with majority’s it, resolution of I am proceeding to address issue. explained earlier, As held we in Ciotti that the DNRC may permits 85-2-311, issue new water pursuant MCA, or § changes authorize to existing permits pursuant water use to 85-2- § 402, MCA, on the Reservation until the Tribes’ reserved water been quantified negotiation 85-2-702, have compact pursuant to § MCA, by general inter rights adjudication-the sese water reason being an applicant’s prove burden to lack of unreasonable 85-2-311(1)) (§ (§ 85-2-402(2)) interference or adverse effect cannot be Ciotti, satisfied until that quantification complete. 278 Mont. at n.1, 61, n.1, 923 P.2d at Following the 1997 amendments 85-2-402, MCA, to 85-2-311 and we held in § Clinch that the DNRC still permits not issue new water use See on Reservation. Clinch, 27-28; Stults, 28-29, accord But did ¶¶ 36-37. we not state ¶¶ changes whether our “applied equally” decision (as Ciotti). words, uses the Reservation had we done other we DNRC, did not indicate explicitly whether the under the amended true, course, respect issuing The same is new use with DNRC’s water permits on the We held do Reservation. have three times now the DNRC not that, simple rights so for reason until such time as the Tribes’ reserved have quantified, excess, possibly been cannot know whether non-reserved waters appropriation by Ciotti, 60, 61, 923 are available for a new user. See 278 Mont. at P.2d 1079, 1080; Clinch, 27-28; Stults, ¶¶ ¶¶ 28-29. change-of-use have language, may applications. We

statutory approve For the in the case at hand. squarely presented question been with follow, use applicant change an reasons which permit for a use applicant less than an new water the Reservation-no change that the will not prove proposed on the Reservation-cannot until those “adversely affect” the Tribes’ reserved law, DNRC, as a quantified. Accordingly, the matter have been applications. such approve cannot

A Ciotti, (1995), 85-2-311(1), MCA decided At the time we provided, part, in relevant as follows: applicant proves by issue if the department permit

[T]he shall a following criteria are met: preponderance a of evidence that (a) unappropriated supply waters the source there point of diversion: proposed (i) put proposed at times when the water can be applicant; (ii) applicant appropriate; that the seeks the amount (iii) during applicant seeks to period in which the reasonably requested in the amount and that appropriate, available;

(b) appropriator will not be prior the water a adversely affected;

(e) unreasonably with other use will not interfere proposed permit a has been issued or for which planned developments uses reserved; or for which water been 85-2-402(2), (1995), provided, part, MCA relevant Similarly, § follows: appropriation department approve shall

[T]he that the by preponderance ofevidence appropriator proves if the following met: criteria are

(a) adversely affect the water use will not proposed developments uses or for which persons planned or other other which water has been reserved. permit has been issued or for applicant prove provisions required the that both of these Given 85-2-311(l)(b)) (§ other prior appropriators that the water 85-2-402(2)(a)) (§ adversely affected will not be persons “an use, we observed in Ciotti that surprising proposed essentially burden of the same applicant’s proof is under either n.1, statute,” Ciotti, at n.1. 278 Mont. 923 P.2d above, Legislature As noted the amended the of language 85- § 2-311 and 85-2-402 in In the both District Court and this § Court, repeatedly the emphasized Legislature’s the stated “negate[]” intent to our Ciotti decision with the amendments. See Laws (“The Intent, of Montana Ch. Statement of at 2790 legislature Supreme intends that the Montana Court’s decision in bill.”). negated by passage [Ciotti] be the approval of this Of course, a statement of intent cannot accomplish any itself particular result; rather, pertinent the statutory language must be amended accordingly. Thus, Legislature’s while the Statement of Intent is to analysis, relevant our the language amended of 85-2-311 and 85- § § ultimately 2-402 dispositive. respect 85-2-311, Legislature With the § inserted the (1):

following three sentences in subsection permit may A be prior issued under this part the adjudication of existing water in of a source In a supply. permit proceeding under this part presumption there is no that an applicant permit for a cannot statutory meet the criteria this prior adjudication section to the water pursuant chapter. making section, In a determination under this department not alter the terms and conditions of an existing certificate, water or an issued permit, state water reservation. (1997). 85-2-311(1),

Section MCA The Legislature also revised (l)(a) (i) subsection to require applicant prove that “there is physically water proposed point available in diversion (ii) amount applicant that the seeks to appropriate” and that “water reasonably can legally during be considered period available applicant which the appropriate, seeks to in the requested, amount based on the department records and other provided evidence (1997). department.” ll(l)(a)(i)-(ii), Section 85-2-3 MCA Significantly, Legislature eliminated the requirement subsection (l)(e) that the applicant prove proposed that the use will not “interfere unreasonably’ with the uses for which water has been “reserved.” At time, however, Legislature the same requirement retained (l)(b) subsection that the applicant prove that the water of a prior appropriator “existing under an right” water will not be (1997). “adversely ll(l)(b), Furthermore, affected.” Section 85-2-3 MCA (1997) “existing right” 85-2-102, amended to define MCA was § created under federal law.” including “Indian reserved Clinch, argued Legislature’s effort to the Tribes that the pervasive permits disregard of the Tribes’ allow the issuance 3(1) IX, unquantified reserved water violated Article Section Constitution, “recognizefs] confirm[s]” all the 1972 Montana which 1,1973. Clinch, 18; rights existing July as of See Mont. Const. 3(1). IX, Analyzing this contention and the effects of the 1997 art. amendments, reasoned as follows: we previously

It clear from the statement of intent to which we S.B. 97 to legislature referred intended allow prior quantification Department permits to issue water use rights which we held that it could of the Tribes’ reserved water However, it clear that to issue water use not in Ciotti. is also do prior quantification to the permits the Flathead Reservation right requires which reserved use water pervasive the Tribes therefore, IX, would, Article may belong to the Tribe and violate 3(1) existing protects of the Montana Constitution which Section unadjudicated or and which the rights adjudicated water whether rights includes reserved federal law to State concedes those Indian tribes.

Clinch, interpreted “legally available” under 85-2- § 27. We therefore ¶ 311(l)(a)(ii) which, other among to mean that “there is water available Clinch, tribes.” 28. things, federally ¶ has not been reserved for Indian spite of amendments to this held that in interpretation, Given we 85-2-311, the DNRC still § legally water available on

cannot determine whether Reservation, Department cannot Flathead Indian because affect permits the issuance of those would determine whether rights quantified by are existing rights water until the Tribe’s MCA, 85-2-702, byor a general compact negotiation pursuant § rights adjudication. inter sese water Clinch, DNRC not issue further Accordingly, 28. we ordered that the ¶ until the Tribes’ water use on the Reservation permits new water Stults, 28-29; Clinch, 28; see 36- quantified. also ¶¶ have been amending 85-2-402, Legislature, in this Turning now to § (1): in following two sentences subsection inserted the provision, of this change subject provisions to the right The to make a a water existing right, a or state permit, water section proceeding a change In recognized and confirmed. reservation is section, presumption applicant under this there is no that an for right a cannot lack of adverse change appropriation establish adjudication effect to the other in the source of prior supply pursuant chapter. (1997). 85-2-402(1), Legislature

Section MCA The also made the following (2)(a), revisions to which are indicated with subsection below (old (new strikethrough language) language): and italics [T]he shall department approve change in appropriation if the appropriator proves preponderance evidence that following criteria met:

(a) proposed change ttse appropriation right will not adversely affect the existing use water of other or persons perfected planned other or or developments uses permit which a has been issued or for which water certificate has beeirreserved' state water reservation been issued under part 3. (1997) 85-2-402(2)(a), added).

Section (strikethrough MCA and italics (Recall that 85-2-102 was amended right” to define “existing § law.”) as including “Indian reserved created under federal This statutory language has unchanged remained through present. comparing amended version of 85-2-311 § with 85-2-402, amended version of noteworthy provisions § both reject any presumption applicant that an for a new water use permit or a pertinent cannot meet the statutory criteria prior adjudication of existing in the source of supply. 85-2-311(1), See -402(1), Indeed, §§ MCA. the DNRC makes much of However, this new language. the new “no presumption” language did lead to a fact, different result in Clinch. In we held 85-2-311(1) under the amended version of that the DNRC still cannot determine whether the issuance of a use permit new water will affect the existing rights Tribes’ water rights until those have been quantified. Clinch, words, 28. In other the absence of a presumption that the applicant pertinent cannot meet the statutory criteria did not somehow enable the to DNRC do what it could not do under Cioiii-namely, determine whether the issuance a new water use permit adversely rights. will affect the Tribes’ reserved water And the same is equally change-of-use applications. true of in Just because change-of-use proceeding there is no the presumption applicant that “cannot prior adjudication establish lack adverse effect other in supply,” the source of it not does follow that the applicant necessarily can establish lack of adverse effect. The burden effect) (i.e., by a preponderance

to so lack of adverse do to establish the remains-presumption presumption-and or no still evidence case, therefore, many is is for question, possible, dispositive whether showing that before the Tribes’ reserved water applicant to make quantified. rights have been that it is authorized to position The crux of the DNRC’s now centerpiece of the the

approve change-of-use applications-indeed, Court and in this Court-is its arguments DNRC’s in the District Ciotti, “negate” Legislature only intended to that the not contention to 85-2-402. § did virtue of the 1997 amendments but fact so omitted), the asserting (emphasis law” Though that “Ciotti dead must, our Ciotti acknowledges, as it that we resurrected of new water use holding-at respect least with issuance then, Necessarily, acknowledges the DNRC that permits-in Clinch. “negate” quantification did not the 1997 amendments 85-2-311 § (in words, “negate” did not prerequisite proceedings in new-use other prove fact that in order to that Tribes’ reserved use, new those “adversely by proposed will not affected” be therefore, that the position, must first be DNRC’s quantified). accomplished what amendments 85-2-402 somehow § negating not-namely, quantification did amendments to 85-2-311 proceedings. prerequisite change-of-use However, persuasive explanation has no proffered the DNRC 85-2-402(2)(a)-requiring the why language of former § adversely affect the prove proposed “[t]he that use will not applicant materially distinguishable from the persons”-is of other applicant prove language 85-2-402(2)(a)-requiring ofamended § adversely not will proposed appropriation “[t]he persons’-probably of other affect the Rather, it the two. there is no material distinction between because inviting simply to do here is to revisit that what the DNRC is us seems analyze materially it under in Ciotti and the issue we addressed opposite language, but reach indistinguishable statutory we did Ciotti.16 conclusion nothing persistent. that the DNRC has if The record reflects The DNRC is not changes approving permitting to water uses on engaged in water use been Mr. Stults testified Act effective. since the Water Use became

Reservation in the District Court how when many permits have been issued and did know how new he during period, changes approved but he many the DNRC of use have been Notably, so over both “[i]t’s the DNRC done state that tens of thousands.” did routinely objections and a 1987 pro jurisdictional filed the Tribes forma threshold Court, that the DNRC which concluded First Judicial District decision of the Montana decisis, Notwithstanding the doctrine of majority stare the accepted I agree the DNRC’s invitation. While can that stare decisis is necessary not absolute and that it sometimes is for this Court revisit precedents, only one its when we do so we not we explain why must reconsidering previous holding also, it, why are the we but if overrule holding any analysis was erroneous. The lack of in the Court’s 85-2-402(2)(a) today why Opinion explaining the language former § materially distinguishable is from the language amended 85-2- § 402(2)(a) suggests today’s majority simply disagrees with decision in this Court reached Ciotti and taking is opportunity implement words, different reason, result. other “[p]ower, not is currency Tennessee, new of this decisionmaking.” Payne Court’s v. (1991) 808, 844, 501 U.S. (Marshall, J., S.Ct. dissenting). I submit personnel that mere of this Court

not a overruling valid basis for prior one of our holdings. There is no differently reason conclude that, than we did in Ciotti Clinch law, a matter of lack of adverse effect proven cannot be until Tribes’ reserved reasons, have quantified. been For these arguments DNRC’s based on the 1997 amendments to 85-2-402 § unavailing. are

B Notwithstanding the absence of a material difference between the version of 85-2-402 at issue in § Ciotti and the version of 85-2-402 § review, now under necessary it is still to address a point critical made by the DNRC in the Specifically, District Court. the DNRC explained that when it considers change-of-use adverse effect in a proceeding, it analysis bases its distinguishable on factors that are from the factors it relies on when considering adverse effect in a proceeding. new-use permits could of specially concurring) (noting issue under § 85-2-311 until the the source supply Ciotti, quantified, 61-64, 923 (Nelson, J., see 278 Mont. at P.2d at 1080-82 litigating that the DNRC was in Ciotti an issue the DNRC already litigated, unsuccessfully, materially indistinguishable had statutory under language Conserv., Dept. in United States Mont. Nat. Resources and No. 50612 (Mont. 1987)). Although finally 1st prevailed Jud. Dist. June the Tribes particular objections relitigate decision, they that culminated in our Ciotti have been forced to statutory the issues decided in Ciotti virtue amendments discussed resumption Then, above and the DNRC’s concomitant of activities on the Reservation. following having Clinch, again (recounting our reaffirmation of Ciotti in the Tribes found themselves Stults, to defend this Court’s decision. See ¶¶ DNRC’s get modify” holding effort in this Court to “dissolve or our in Clinch and grant application despite seemingly DNRC’s decision to at issue in Stults “the clear Clinch”). Now, again, asking mandate of Ciotti and this Court to revisit holding simply that it does not like. of the amendments Essentially, irrespective the DNRC contends that 85-2-402, the adverse effect test applies 85-2-311 and the DNRC to § proceedings proceedings. versus new-use differently change-of-use analysis view, change-of-use it uses its In the DNRC’s factors change adversely proposed it to will enable determine whether asserts, thus, it is rights; water the DNRC affect the Tribes’ reserved should reach set forth in 85-2-402 and we satisfy able criteria The District Court result in this case than we did in Clinch. a different summary for argument granting the Tribes’ motion rejected this properly I that the court did so. judgment, and conclude hearing preliminary motion for a At the on the Tribes’ major on direct examination that injunction, Mr. Stults testified proceeding change-of-use and a proceeding criterion in both new-use However, he existing rights].” [on effect water is "lack of adverse use, “[y]ou’re looking at with to a new explained respect further that taken of the diversion, being additional water out new whether water unable to source, existing make it-n user will somehow contrast, reasonably right.” By their water fulfill you’re looking the-you have an change application with a put to and it’s been used existing water that has been use you’re And period use over a time. so pattern and has a it it increase so looking changing going at whether is somehow consumption or increased burden it-you that have an increased historically that really looking make sure on the source. You’re X went back into the X taken out of the stream and has been stream, change place take X make sure if the were to and to go and X would still back. You still come out of the stream would can’t have X minus one. get plus going X one back. You could guess you piece if had a just looking to make sure that-I You’re change somebody piece to make a on wanted property, internally they don’t make they change long it so as can property, up somebody property. else’s bigger taking and end property size, exactly the same that you just as can tell that it’s long So as for.[17] you’re looking is-that is the test above, putative state- water nor the neither the Tribes’ reserved As noted the Reservation have been appropriation on non-reserved waters law Thus, assumption n.9, supra. quantified. adjudicated or See 90¶ otherwise change you application... argument-namely, underlying have an DNRC’s Reservation that “with the DNRC’s entire (The doubtful, is right of the on the existing right”-is if same true not unfounded. water appropriation assumption exercise of a state-law However, rights.) already infringing the Tribes’ reserved is not applied analytical on evaluating change-of-use framework the DNRC’s the sake of ¶132 Thus, in a proceeding new-use determines whether any here available in source of for the supply proposed use, only ew which can occur after the existing in the supply quantified. ource of have been The DNRC then considers proposed upon whether the new diversion will impinge however, rater In a rights. change proceeding, only the DNRC looks it use applicant’s “pattern over a time” period of and does not scope objectors’ rights onsider the supply. the source of This pproach is based on the premise long proposed that so as the change oes not amount to a in the change quantity being of water diverted source, rom and returned to the it adversely will not affect the ibjectors’ rights. look [sic] “What we’re is whether the being s proposed way would in some [applicant’s] right alter the so hat than larger was somehow what been it had before. If its nnsumptive increases, it creates more of a burden the source.” But, source, “if it’s unaltered in its burden on the it does not-it can’t any lave different impact historically.” than it’s had The inherent inadequacy this “full approach bucket” mmediately obvious from the DNRC’s property analogy. One need >nly a open local to newspaper realize that a property may owner :hange or his her internal of a particular piece of property, without making property the and bigger, adversely still affect his or her íeighbors’ instance, uses of their properties. Jerome, Idaho, For the STationalPark Service expressed concern the about effects of a feedlot iroposed to be upwind built miles of the Minidoka Internment IV2 STationalMonument. specific Of concern impacts on air quality, (insects) pests dust, increases in possible water, and effects management issues of waste and traffic. See Proposed Feedlot Next to (Dec. Monument Stirs Opposition, Helena Independent Record 7A 2006). the interpretation 85-2-402(2)(a), however, Under DNRC’s of § the uses neighboring properties “adversely of are not long affect[ed]” as property “exactly the at issue is the same before change. size” as the interpretation obviously This does not close scrutiny. bear As fact, a matter analogy of the DNRC’s actually analytical illustrates the focusing solely flaw in on “whether a would change increase the the burden on source.” As District astutely pointed out, the Court an may though adverse effect occur applicant’s even the burden on the supply source of changed. change “[C]ouldn’t not the use affect Reservation, ensuing proceeds premise the change the discussion under the that the applicant’s right right claimed water is an otherwise valid to non-reserved waters. dry swamp create a when groundwater, up swamp a or

somebody’s Indeed, 85-2-401, MCA, a o speaks of number wasn’t one before?” occurrence, o such as the increase of water “condition[s] different table, lowering of a water artesiai streamflow or the decrease of ; level,” affected adversely could or water that be pressure, change of proposed use. Mr. on cross respect Stults conceded point, to With coul( diversion, instance, change in of point

examination that a an increase in th< existing right without adversely affect agreed right if exists to £ Specifically, he that burden on the source. the points the diversion that in-stream flow between particular to, tha1 applicant to will affect change from applicant wishes words, if a right by changing point of diversion. In other stream A, C, etc., way point Z B, all the point point point flows from Q point change point his of diversion applicant wishes Q points J and will be J, the of the stream between point flow has nof adversely-even though applicant affected-possibly from the stream. See diverting water he is changed quantity of (1974). P.2d 963 If Harvey, 164 Mont. e.g., Thompson in that right particular to a flow stream Tribes have a reserved Q, infringed by be J and their will points between possibly until change-something the DNRC cannot determine been quantified. have Tribes’ reserved use, use, storage or of purpose place of change place A in such point diversion consequences. could similar While have same, of return or the route return may point be the situations Indeed, the be, just scenario discussed. ultimately creating not change in the impacted mere dynamics ecosystem may of an be storage on the use, use, place of water purpose place change-of-use assessing variable in property-an essential applicant’s if the presuming instead ignores, the DNRC application than he or drawing water out of source not be more applicant will adversely then the will change, did the proposed she before rights. else’s anyone affect go can out and applicant us “a that The assures rights.” This exercising their water everyone actually is evaluate how the however, inadequacy illustrates assurance, only further reserved water reality that Indian ignores it approach: DNRC’s at Greely, use. 219 Mont. present a or actual exist without rights may go to out and applicant not for an 90, possible 712 at 762. It is P.2d

361 that “actually exercising” are how Tribes’ evaluate put to use. yet not been defined have that keep to in mind some Likewise, necessary it is They may include non-consumptive. are

Tribes’ reserved water at a particular particular a flow in a stream right particular to Flathead, and Irr. Mission Jocko See Joint Bd. Control point. 1987). (9th States, 1127, 1131-32 The 832 Cir. v. United F.2d Districts hunting, Treaty aboriginal fishing, Tribes’ Hellgate 1855 secured the (see n.8, turn supra), 89 which in gathering, pasturing and (or being being of water located may require quantity particular located) recognized point respect with particular at a location. We Greely, stream waters in where we stated: hunting and preserve

The to water reserved to tribal right fishing rights non-consumptive. unusual in that it is A reserved hunting fishing purposes right and “consists depleting the stream waters prevent appropriators other level area protected any non-consumptive below where the Adair, at 1411. right applies.” 723 F.2d 93, Furthermore, Greely, 219 at at 764. we Mont. P.2d noted: held under Supreme implied- Court has also doctrine, reservation-of-water-rights are Indians entitled preserve, produce sufficient “to or sustain food and develop, reservation, v. other resources of the make livable.” Arizona entered, 599-600, 83 California, [decree U.S. at S.Ct. at 1497 (1964)]. 340, 755, “[I]ndian 376 U.S. 84 S.Ct. 11 L.Ed.2d 757 treaty rights thoroughly to a natural resource once was as, much no Indians secures so but exclusively exploited than, provide the Indians with necessary more say, living.” Washington is to a moderate livelihood-that Ass’n, 658, 3055, 686, [443 99 S.Ct. Fishing Vessel U.S. (1979)]. (first 93,

Greely, 219 at 712 P.2d at 764-65 two alterations Mont. original). elusive, ubiquitous these water Because Reservation, 84, Greely, see 219 Mont. at

likely pervasive on the River, 811, 96 1243); Colorado S.Ct. at (quoting P.2d at U.S. Ciotti, DNRC’s in a 278 Mont. at 923 P.2d focus applicant exclusively on whether will change-of-use proceeding change-i.e., proposed his or enlarge appropriation her will be proposed change taken after the quantity whether out impact no for the change-with than consideration greater before that the change might of use have on the surrounding ecosystem or on the Tribes’ water, future uses of wholly inadequate for making no- adverse-effect determination vis-á-vis unquantified Tribes’ reserved rights. respect With proposed Axes’ change, instance, for

defies common sense to conclude that long so as the Axes are not diverting any more water than they diverted historically, their change in use irrigation from pasture hay fields to an 11.75-surface- acre manmade pond water-ski adversely cannot affect the use of water rights reserved for aboriginal hunting fishing. Again, this is not Stults, rocket science. (Nelson, J., See specially concurring). Once one understands and accepts that system “[a] water unitary is a resource” and “[t]he actions of one user have an immediate and users,” direct effect on Walton, other 647 F.2d at one should recognize that a determination of no adverse effect on the Tribes’ reserved cannot be made until those have been quantified. “ Notably, the previously DNRC has ‘[mistaken stated that nonrecognition objector’s of an right, and grant of a change ” thereon, authorization based could irreparably damage objector.’ Matter Application Change Appropriation Rights Water Nos. 101960-41S Royston, 425, 430, 816 101967-41S 249 Mont. (1991) P.2d (quoting from the record in the underlying administrative proceeding). Such reasoning is consistent with the fact that the burden in change-of-use proceedings is not on objector prove but, rather, adverse effect applicant prove lack thereof. 85-2-402(2), MCA; Section Royston, 249 Mont. at 816 P.2d at 1057.18Unfortunately, the DNRC has since adopted the contrary view any “speculation” as to adverse effect should be resolved in favor applicant. Yet, nothing in statutory changed; scheme has change-of-use burden in proceedings is still on the applicant prove effect, lack of adverse and the DNRC so to find. The DNRC cannot do so respect with to waters on the long Reservation as as the possibility regard, In this it is interrogatory curious that the DNRC submitted an asking nature, Tribes in the the claimed water result... scope “[d]escribe District Court them to and extent of injured injury that will be and the nature of the that will granting change from a evidently of a of use authorization to Axe.” The DNRC point making has missed the that “the past twenty years, the Tribes have been for the which is nature, scope presently and extent” of their reserved water is not quantification process known and will not be nature of the complete, known until the and thus the injury, any, granting change-of-use if that will result from the of a yet authorization to Axe is not ascertainable. the Tribes’ adversely affect change of use will that a exists rights. unquantified reserved water a water “Might any change of Nevertheless, posits: the DNRC adversely affect another conditions that in different stream

right result automatically every proposed Certainly.... Does right? Thus, Certainly not.” rights? effect to other water result adverse precluded should not be change-of-use applicants argues, or the because the Tribes “[j]ust effect trying prove lack adverse cases where adverse might, may, or could be district court feel there DNRC, decides that majority Agreeing with might effect occur.” to lack of opportunity prove should have the change-of-use applicants 38, 40. Opinion, adverse effect. ¶¶ mistakenly, However, majority presume, and the DNRC might, may, or could have on proposed change the effects a

that and measured rights actually can be identified Tribe’s reserved water testimony elicited Again, the rights quantified. those have been before hearing premise District Court establishes that this at the in the that “no more applicant might prove incorrect. be able to While currently,” he or she Opinion, water will be diverted than is ¶ rights has prove, scope cannot until the of the Tribes’ reserved water determined, proposed change adversely that the will not affect been by increasing decreasing the rights way (e.g., those in some other or stream, by raising lowering in a stretch of a or a water protected flow area, table, in a pressure, protected artesian or water level Thus, majority provided impeding aboriginal practices). that, prove something to change-of-use applicants opportunity with time, law, yet proven. In the mean as a matter of cannot be position having change-of-use in the to contest Tribes will be course, separate thousands of applications, potentially as a matter of 57, supra. cases. See ¶ Affected Landowners contend point, On a related Amici Curiae that conclusively presume Court to request [this]

that “the Tribes by every right holder on the Reservation every change of use water Amici are also of the view adversely rights.” affect their always will in Ciotti. Amici presumption” such a “conclusive adopted that we clear, there analysis makes foregoing counts. As the mistaken on both lack adverse effect or “conclusively presuming” either is no basis for been Rather, reserved water have thereof. until the Tribes’ words, determined; in other cannot be simply adverse effect quantified, requisite make the applicant at this time for an possible it is not holding point of our in Ciotti and is the showing, which was basis of the discussion here. concluding, appropriate Before it is to address a concern raised Legislators the DNRC and echoed Amici Curiae of the State of the interest in “economic the DNRC Citing development,”

Montana. argues changes existing that it must water permitted approve be during right throughout pendency uses the State vein, adjudications. Legislators opine In a similar that if the DNRC approve changes cannot water uses on the Reservation until quantified, the Tribes’ reserved water have been then “the any unadjudicated prevent in an existence of basin would administration doing any the State from of water and water use words, adjudication.” appears perception In other there to be a prior Ciotti, holding that a this case consistent with our decisions Clinch, and Stults would result in a shutdown of water use statewide (A regulation. dissenting opinions similar view was noted in the cases.) each those Clinch, Ciotti, or not the enunciated in principles Whether involving

Stults be extended to cases not Indian reserved water (and I no in that do not express opinion regard, given we hand), reasoning have such facts before us in the case at equates and amici is flawed to the extent Indian rights. As appropriative reserved water with state above, there are crucial distinctions between the two. See explained Clinch, IV, And, Ciotti, supra. reading Part as is clear from a careful portion Greely three of in which we quote and Stults—aM which rights water appropriative discussed the differences between state Indian reserved rights-the unique Indian reserved water nature of cases, my rights informed our decisions in those as it informs water analysis herein.

C stun, the version In there is not a material difference between in Ciotti and the version of 85-2-402 now under of 85-2-402 issue § § Thus, than did differently there is no reason to hold here we review. Clinch, of new respect in Cioííi-and as we held in with issuance may changes in permits-that approve the DNRC not water 85-2-402, MCA, on the Reservation existing pursuant water uses to § quantified by have been rights until the Tribes’ reserved water 85-2-702, MCA, inter by general or a compact negotiation pursuant § rights adjudication. sese water evaluating analytical approach But even when DNRC’s

148¶ impression matter of first considered as a change-of-use applications is Ciotti), clear that holding in it is (i.e., of our independently as the long that so premise-specifically, on an invalid approach rests quantity to an increase change does not amount proposed source, it will not from and returned to being water diverted rights. For the reasons set adversely affect the Tribe’s reserved water above, indeed result in an increase change a in water use could forth streamflow, raising lowering of a a protected or decrease of location, in a table, protected artesian or water level pressure, quantity of water ecosystem-though on the impact or some other is still the same. And whether being that is diverted from source rights cannot infringe the reserved water such a result would Tribes’ rights is known. The DNRC scope determined until the of those be 85-2-402(2)(a) by avoid the no-adverse-effect criterion cannot excluding change-of-use relevant variables from its expedient mere equation.

VII conclusion, jurisdiction over within the DNRC lacks waters power ofthe State administrative the exterior boundaries Reservation. rights until respect is not authorized with to Indian reserved water (or adjudicated by compact rights quantified those have been respect And exist with negotiation). regulatory power while waters, excess, presently possible non-reserved it is not to know such even exist on the Reservation and whether whether waters non-reserved particular putative state-law water such yet have not been waters since the Tribes’ reserved water quantified. Likewise, DNRC, law, as a matter of cannot determine to an use on the proposed

whether “adversely affect” the Tribes’ reserved water Reservation will entirely quantified. have been It is conceivable until those drawing any not be more proposed change, though applicant will historically, supply than he or she has drawn water from the source table, conditions, or other affect stream a water will nevertheless way that the Tribes’ surrounding ecosystem in such a aspects the Tribes’ preserve reserved non-consumptive adversely practices are fishing, hunting, gathering aboriginal simply quantified, have been affected. Until those make this determination. possible to result, today In a reaching majority different the revises 85-

¶151 2-402(2)(a), MCA, determination requires only such that it that now currently.” Opinion, more than is 38. In so “no water will be diverted “adversely doing, majority emasculates the statute’s affect” prohibition exposes and the Tribes’ reserved to routine piecemeal infringement by the DNRC. outset, Lastly, genuine as I stated at the there are no issues as any needing material facts in resolution the District Court. The by majority yet ripe. only factual issues identified are not implicated by factual matter the Tribes’ complaint this case is how change-of-use DNRC determines lack of adverse effect proceeding. question, The District Court took evidence on this and no genuine issues remain to it. All other herein questions raised are and, legal above, questions; reasons discussed the Tribes are judgment “adversely entitled to as a matter affect” of law on both 56(c). jurisdictional and the question question. M. R. Civ. P. Unfortunately, majority’s proceeding as a result disregard presently of the factual circumstances that exist on the Reservation, being the District Court is instructed this Court to do (a) (b) something impossible yield practical that will no is, remand, binding thing, result. For one the District Court on analyze sovereignty complete issues of tribal in a factual vacuum. knowing Without of reserved quantity waters non-reserved (if any) Reservation, possibly waters the court cannot make the requested by majority today’s determinations 29-32 of ¶¶ Furthermore, Opinion. any ruling rendered the District Court excess, respecting regulatory authority state over non-reserved waters meaningless juncture, given on the Reservation will be at this that we therefore, Ultimately, do not know whether such waters even exist. Catch-22, majority placing the District Court in a while simultaneously encouraging pursue regulatory authority the DNRC to plainly “Having sight obligation that it does not have. lost of our have, worse, swamp, drain the we thrown the trial court into the water alligators.” with instructions to subdue the Montana Power Co. v. Co., 224, 245, Burlington Northern R. 272 Mont. 900 P.2d (1995) (Nelson, J., dissenting). First, facets of this case mention. closing, two deserve Court and several of the

arguments presented convey open-ended amici sense of frustration with the nature general “regulatory of the Tribes’ reserved water and the vacuum” Affected they present. claim exists on the Reservation at Amici Curiae being treated they Landowners, complain in particular, frustrations, I any of these intending to minimize “unfairly.” Without instructive on this issue to be both Circuit’s comments find the Ninth compelling: growing are a rights that water recognize open-ended We their extent uncertainty in the West. Until source of conflict and relied on determined, rights water cannot be is state-created property owners. quantifying reserved problem

Resolution of the is found rights, limiting not in their use. water (citations omitted). Indeed,

Walton, the Tribes’ reserved 647 F.2d at 48 16,1855 Treaty recognized by July or are rights spring water from [Tribes], treaty grant rights That was “not a of but Hellgate. of granted.” them-a of those not United grant a from reservation (1905). Winans, 371, 381, 662, 664 States 198 U.S. 25 S.Ct. exist; they may for the sake of convenience ignored not be Rather, expansion. competing expressed or economic interests by seeing the parties quantification and amici will best be served through. process Second, years litigation leading I that case and the note

¶ which our up question presumptions to it call into one of the Greely respect part decision in rested. With to “the fear on subjection that the of Indian water to state court parties various jurisdiction necessity people,” Greely, hurt the Indian Mont. will “ 766, 95, at that ‘Indian interests be at 712 P.2d we observed ” law,’ Greely, 219 Mont. satisfactorily regimes under of state protected 551, (quoting Apache, at San Carlos 463 U.S. at at 712 P.2d River, quoting in turn Colorado 424 U.S. at 103 S.Ct. 1243). Use Act Unfortunately, to the extent Montana’s Water

S.Ct. satisfactorily regime a which designed regime-i.e., was as such a being regulatory provisions Indian interests-its are not protects such, following Greely decision twenty years as which the our applied and the facts of the case at hand further confirm. bear out itself regard, illuminating perceives In this it is that the DNRC the constitutional agency “defending “entrusted” with ... state hand, Indeed, in the case at the DNRC right of water holders.” putative for the interests of actually taken on the role of advocate 9; Opinion on the Reservation. See right ¶ state-law water holders Brief, n.4, Opening “[t]he DNRC explains As the DNRC its supra. is at stake to magnitude of the what appealed this case because the Flathead existing right holders on fee land within water Brief, states: Reply Reservation.” And its paid alleged much attention has been to the harms Too claim allowing existing them from water the Tribes will befall case, prove enough their and not opportunity users existing being paid attention is to the constitutional why state. That the DRNC has right holders of this in terms of the framed the issue in this case first and foremost change holders to their right right constitutional rights. against sanctions noteworthy pursue It is also that rather than 85-2-402(1), (prohibiting Axes for their with MCA noncompliance in use appropriator making without DNRC’s seeking ratify after the fact approval), the DNRC noncompliance. interests of state-law water litigate These efforts to Tribes, that is adversarial procedural posture

holders-and long-standing position the DNRC’s question no less-calls into serious being “adequately protected” unquantified tribal Simonich, Indeed, given the See 29 F.3d at 1401. by the DNRC. DNRC, routinely put to which it political pressure and economic on twenty the last as demonstrated its track record over succumbs years, pure fantasy expect agency-which that the the view alleged harms that the paid “[t]oo much attention has been Indian water satisfactorily protect claim will befall them”-will Tribes step Decades of one forward and proceedings. in the course of its little recourse but to seek a steps two back have left the Tribes with that have been on hold. remedy proceedings the federal court summary judgment grant I affirm the District Court’s would based, ground not considered part, in favor Tribes-albeit contrary this Court’s decision. by the District Court. I dissent from in the dissent of JUSTICE NELSON. joins JUSTICE COTTER

Case Details

Case Name: Confederated Salish and Kootenai Tribes v. Clinch

Court Name: Montana Supreme Court

Date Published: Mar 12, 2007

Citation: 158 P.3d 377

Docket Number: 04-042

Court Abbreviation: Mont.