*1 AND THE SALISH CONFEDERATED THE FLATHEAD TRIBES OF KOOTENAI MONTANA, STATE OF RESERVATION, Petitioners, v. STULTS, Administrator, Water
JACK Department Montana Division, Resources Conservation; Resources and of Natural Department Director, BUD Montana CLINCH, Conservation; of Natural Resources NATURAL MONTANA DEPARTMENT OF CONSERVATION; RESOURCES AND Special MacINTYRE, D. Assistant DONALD Attorney General, Montana Conservation; of Natural Resources and LANG, REGINALD C. Respondents. No. 01-415.
Argued 2001. and Submitted December Decided December 2002.
JUSTICE TRIEWEILER Petitioners, Kootenai Tribes of the Confederated Salish and ¶1 Reservation, petitioned this Court exercise the Flathead have a Beneficial Water Use original jurisdiction enjoin issuance of Reginald request C. that we find the Lang. The Tribes further (DNRC) and the of Natural Resources Conservation Stults, Clinch and Donald Respondents, Jack Bud individual permanently in order of Cotut. We MacIntyre, of a contempt Application Final in In the Matter vacate the Order issued by Reginald Water Use Permit 76-L109371 Lang C. but Beneficial Respondents decline to decide whether in contempt of court. following The Tribes’ Petition raises the ¶2 issues: appropriate 1. Is this an original ¶3 case in which to exercise jurisdiction? 2. Should the Final Order authorizing issuance of a Beneficial
Water Use permit Lang be dissolved? Stults, Clinch, 3. Should Respondents DNRC, MacIntyre
be held in contempt?
FACTUALAND PROCEDURAL BACKGROUND Respondent Reginald Lang purchased C. property real on the Flathead Reservation a fewmiles Springs, Montana, north ofHot where he intended commercially Lang bottle water. applied for a Beneficial Water Use September 21, Permit on 10, 2000, 1999. January On Lang DNRC notified objections that two had been filed. One of those was filed Tribes, Confederated Salish and Kootenai who objected on the basis that the DNRC not jurisdiction did have the to issue water on the Reservation. The DNRC hearing held a concerning Lang’s application on September 7, 2000. The Tribes did participate hearing. On May 8, 2001, Hearings Officer Charles Brasen issued the DNRC’s Proposal for Hearings Decision. The proposed Officer that the DNRC grant Lang’s permit application based on his conclusion although holding our Salish and Kootenai Tribes v. Confederated 342, 297 MT Mont. enjoined P.2d the DNRC from issuing permits on the Reservation until the Tribes’ quantified, that holding did not apply ground to “a water source
that is not hydrologically result, connected to the surface source.”As a the Hearings Officer concluded Lang statutory met requirements for issuance of a beneficial water use permit codified at 85-2-311, Nevertheless, § MCA. Hearings Officerconcludedthat the DNRC should not enter a final order in the matter until this Court dissolved or modified holding of Clinch. On May or about the DNRC filed a “motion” with the caption
Clinch Court, pursuant which it asked this to Rule M.R.App.P., modify to dissolve or Order Clinch. The DNRC injunctive contended that the granted relief in Clinch was overbroad *4 precedent because there is no proposition for the that the Tribes have right groundwater. Further, the DNRC noted that Lang’s application processed had been hearing, that after a the Hearings proposed Officer permit that a issued. DNRC asked pursuant Lang application be reviewed pertinent to the
that the facts specify to modify order 22, M.R.App.P., and that we to Rule affidavit of Finally, the attached apply groundwater. not that it does the Clinch enjoined only order opined Jack Stults Administrator the Flathead Reservation within issuance” of beneficial “the processing applications.” enjoin “but did not the held 31, 2001, the DNRC’s motion. We May this Court denied On ¶9 appropriate was not utilized the DNRC procedure motion the Lang revisit the request that we resolution of DNRC’s and that ill-equipped to facts this Court was dependent on application was develop. Lang’s on Nevertheless, application on issued a Final Order Stults by adopting Lang’s application granted Final Order
June 2001. The hearing by the proposed of Law Findings of Fact and Conclusions 2, which was Conclusion of Law No. exception with the examiners as follows: revised to state Court Supreme Montana application made to the Department above-styled to the modify injunction applies its as it
to dissolve or denied. 31,2001, application was By May order of application. sought by the the relief Supreme Court stated Supreme Court is facts which the dependent on more issue would be develop and that equipped to well record. following fully developed factual considered appropriately in this matter and developed having A record factual record, appeal on the process due parties their accord may be entered. final order in this matter Supervisory Control with Petition for Writ of The Tribes filed a suspend the requested that we 18,2001. The Tribes first on June Court Lang, a new water authorizing issuance of Final Order June of court. On contempt Respondents find second that this Court Lang’s application on DNRC’s Final Order stayed we order of this Court. pending further dismiss Stults, DNRC moved to 11, 2001, Clinch and the July On Hall, MacIntyre, and Robinson claim, Respondents as did contempt by dismissing Petition later amended their 12,2001. The Tribes July
on Respondents. Hall and Robinson require Court to moved this Respondents August On
mediation. the motion which took 14, 2001, an Order we entered August On compel arbitration motion to dismiss, charge, and the contempt motions until we pending all then deferred We
under advisement. original jurisdiction. petition the merits of the addressed *5 the and we held Lang responded The and then Petition DNRC ¶15 argument 2001. oral on November
DISCUSSION ISSUE 1 appropriate original Is case in this an which exercise ¶16 jurisdiction? original jurisdiction by VII, provided Exercise of is for Article
¶17 2(1) original The of Section of the Montana Constitution. exercise jurisdiction applicant is limited to those cases where the demonstrates that:
(1) major of statewide importance constitutional issues are involved;
(2) questions purely legal questions statutory the involved are of construction, or and; constitutional
(3) urgency emergency factors exist which make the normal appeal process inadequate. (1991), v. Dept.
Stuart Social and Rehab. Services 247 Mont. of 439, 807 P.2d 713. argues satisfy DNRC Tribes three-pronged the cannot the original for jurisdiction test because factual issues remain that could be through process. Moreover, addressed the normal trial appeal DNRC contends that the by issues raised the current Petition are than issues in different raised Clinch no because administrative proceedings pending Lang additionally argues were in that case. the Tribes have failed to that their show would be affected and irreparable therefore cannot demonstrate that harm permit would result from he was issued. appropriate We conclude that this is an in which case jurisdiction. original
exercise Our accepting original reasons for jurisdiction in this matter identical exercising are to the reasons for original jurisdiction implicates Clinch. See 9. Petition ¶ The 3(1) IX, Constitution; Article Section ofthe Montana tribal of importance; purely statewide the decisive issue this case is constitutional; legal process inadequate. or normal litigation is precluded Those of fact which issues consideration of DNRC’s May (i.e., or Clinch modify motion to dissolve order in groundwater necessary purpose whether for the for which the established) and, presented reservation was are not this casé for apparent decisions, from our prior reasons which should have been cannot by general be other negotiation decided than contrast, (i.e., adjudication. purely legal In issues here are raised quantification whether kind can be issued ofthe rights). inadequate litigation process Tribes’ water The normal already authorizing has issued the Final Order because Stults new Lang potential for detriment of Furthermore, unquantified rights. pointed reserved as repeatedly courts, need participate out this and other Tribes piecemeal agency proceedings to defend their reserved water ISSUE Final of a authorizing Should the Order issuance Beneficial Water Lang Use permit to vacated? urge give us to effect to our decisions in In the Matter Tribes 66459-76L, Application Water Use Permit Nos. for Beneficial Ciotti; 64988-G76L, Starner; Change Application *6 G15152-S76L, (1996),
Appropriation Right Pope 278 Mont. Water No. 923 and and the Order P.2d Clinch vacate Final which following approved Lang’s application. water As the discussion demonstrates, legal and in Ciotti issues addressed resolved find Accordingly, Clinch were the same the issues raised here. we our analyses dispositive. in and Clinch Ciotti may Our 1996 decision in held that the State not issue new Ciotti ¶23 prior permits water on the Flathead Reservation until Tribes’ rights federally quantified, have been either preeminent reserved compact general rights adjudication by inter sese or Compact negotiations Rights the Montana Reserved Water with 85-2-702, Ciotti, at pursuant Commission MCA. Mont. § P.2d at 1080. Clinch, light in In Ciotti of S.B. which amended § we revisited
85-2-311,MCA(1997),by eliminating requirement subparagraph (l)(e) proposed applicant permit prove that for a that the an unreasonably use for water has use will not interfere with the which Instead, requirement that Legislature inserted been reserved. terms prove “legally is available.” those were applicant three-part other in a circular test defined in the Water Use Act than 85-2-311(l)(A)- requires “legal See § which consideration of demands.” (1999). (C), held, holding that the MCA We similar our on legally available cannot determine whether water DNRC way no to determine because there is Flathead Indian Reservation existing water permits would affect the Tribes’ issuance of whether Clinch, 28. quantified. ¶ until those Clinch, the clear mandate of Ciotti and Despite seemingly that the Tribes’ Proposal for Decision reasoned Hearings Officer’s Then, federally right encompass groundwater. reserved water does not despite denying modify our order the DNRC’s motion to dissolve or Lang’s application, Clinch as it related to Stults issued the Final Order granting Lang’s application. subject It is that action which is the of the present Petition. Petition, support In of their contend the Final Tribes that 85-2-311,MCA, illegal pursuant
Order is decisions Ciotti and § Clinch, May 31,2001. and our Order of further contend Tribes sovereign they as a required nation should not be to defend their water rights in piecemeal proceedings before a hostile forum. Lang respond The DNRC and developed the DNRC a factual response May 31,
record in to our Findings Order and that the Officer, Hearings Order, adopted which were the Final were supported by substantial evidence. Never mind that the factual record developed was without participation. The DNRC additionally argues that Ciotti should not be extended to this situation because groundwater legally the Tribes’ uncertain. We conclude that the Final Order should be vacated and that
the DNRC permits cannot issue beneficial water use groundwater until federally the Tribes’ have been defined and In we reviewed the legal principles relevant thoroughly explained the holding reasons for our in Ciotti: Ciotti],
[In we were asked to decide whether the had authority grant permits new water use on the Flathead Indian Reservation to settlement adjudication of the Tribes’ water requirements We noted that the for issuance water use were 85-2-311(1), MCA, set forth at § (e) required subsection of that statute applicant that an demonstrate that:
The proposed use will unreasonably not interfere with other *7 planned developments uses or for which a has been issued or for which water has been reserved....
* * * *
P.2d we noted that: appropriative State rights and Indian reserved water rights in origin rights differ and definition. State-created water 428 governed by
are state law. reserved defined and Indian rights by treaty, or recognized are created federal federal governed by statutes or executive order and are federal law. Appropriative rights Appropriation are on actual for based use. governed by beneficial use is state law. Reserved water purposes are established reference to reservation (Citations actual, present rather than to the water. omitted.) distinguished reserved on the
We also basis they need not be diverted from the stream we observed when that: right preserve hunting
The reserved tribal fishing non-consumptive. it is A rights is unusual fishing for right hunting purposes reserved “consists ofthe right prevent from appropriators depleting other stream protected waters level area where the non- below [(9th consumptive rights applies.” [United v.] States Adair Cir. 1983)], [1394,] 1411, denied, 1252, 104 [cert. F.2d 467 U.S. 723 (1984)]. 841 S.Ct. 82 L.Ed.2d also Supreme Court has held that under the doctrine, implied-reservation-of-water-rights Indians develop, preserve, produce entitled to sufficient water “to reservation, sustain and other of the to make it food resources [(1963)], [546,]599-600, v. U.S. livable.”Arizona California 542], 1468, 1497-98, [83 S.Ct. 10 L.Ed.2d Court held that reserved water on the Fort Winters Belknap beneficially used for “acts of Reservation could be agricultural purposes. as as for Winters v. civilization” well (1908)], [564], 207, 211, [28 S.Ct. [United States 207 U.S. may such civilization” will 340]. 52 L.Ed. It be that “acts of consumptive purposes. industrial We have not include uses for federal the extent ofIndian water found decisive cases on for uses classed as “acts of civilization.” clear, however, Indian
It
reserved
California,
v.
Neither Ciotti nor Clinch
groundwater
excluded
holding
from our
an applicant for a
water use
prove
requested
cannot
that the
unreasonably
will not
interfere with the Tribes’ reserved
rights
because those
fact,
have never
been
In
the dissent to
decision Clinch
groundwater
made clear that
implicated by
was
our decision.
457,
this Court party either supports the conclusion that there is no distinction between surface groundwater water and purposes determining what water are reserved because those necessary purpose to the of an Indian Tweedy reservation. In v. Texas (D.Mont. 1968), Co. 383, 385, 286 F.Supp the U.S. District Court for the State of Montana stated as follows:
When the created, Blackfeet Indian Reservation was the waters of the reservation were for the benefit of the reservation reserved States, lands. Winters v. United 207 U.S. 28 S.Ct. 52 (1908). L.Ed. 340 only Winters case dealt with the surface water, but the implications same Supreme which led the Court to hold that surface waters had been apply reserved would underground waters as well. land was arid-water would make useful, it more and whether the waters were found on the surface of the land or under it should make no difference. (9th In United Cappaert 1974), 313, 317, States v. Cir. 508 F.2d
Ninth Circuit Appeals Court of likewise cited Winters for the proposition that much necessary so water is reserved as is accomplish purpose of a reservation and went on to conclude that the water reserved is may not limited to surface underground water but include water. (1976), In v. U.S. Cappaert United States 96 S.Ct. Supreme L.Ed.2d groundwater Court concluded at physically concluding
issue was with surface water before interrelated government had federal reserved an interest then groundwater. plainly the Court stated that: Thus, implied doctrine since reservation of water *9 necessity purpose the based on of water for the of the federal reservation, we hold the can its protect that United States water diversion, subsequent from whether the diversion is of surface or groundwater. at at
Cappaert, 426 U.S. 96 S.Ct. 2071. Finally, only by party in the cited state court decision either which issue, analysis Supreme includes of the the Arizona Court In re (Ariz. 1999), 739, 747, System Gila River and Source 989 P.2d held that: summary, In the have lead us if cases we cited to conclude that intended, the implicitly States when it established United reservations, to unappropriated to reserve sufficient water meet needs, must intended that reservation reservations’ it of particular water to come from whatever sources each reservation question had at The for the of significant purpose hand. rights doctrine is not whether water runs above or reserved necessary accomplish it ground but below the whether purpose the reservation. of reasons, Arizona Court held that Supreme For those rights not applies only
federal reserved water
doctrine
surface but to
However,
decide,
decide,
groundwater.
that Court did not
we do
necessary
accomplish
groundwater
whether the
at issue was
by
Supreme
of
the Arizona
Court:
purpose
the reservation. As stated
of a
and to determine the
purpose
To determine
reservation
inevitably
necessary
fact-
accomplish
purpose
waters
reservation-by-
must
made on a
inquiries
intensive
Mexico,
U.S.
v. New
at
reservation basis. See United States
3012.
98 S.Ct.
System,
Gila River
¶35 excluding groundwater rights federally reserved water from the Montana Reserved Water Legislature in this has created the case. Commission, body task of charged with the difficult Rights Compact Quantifying negotiating rights. Indian reserved water quantifying and another simply Tribes is groundwater the amount available to the parties’ If it done to the inquiry. cannot be component of adjudication proper is the satisfaction, comprehensive rights then forum in which to make that determination. nothing scope There is unclear about the of our decision in Clinch:
Accordingly, that the we order not issue further water permits on the Flathead Reservation until the Tribes’ quantified. have been
Clinch, 28. ¶ say clearly: We cannot it more process DNRC cannot issue beneficial water use on the Flathead Reservation until such time the prior pre-eminent of the Tribes have been We further conclude that the Tribes should required not be rights by participating
defend their water
hearings
the DNRC
process.
Tribes,
nation,
sovereign
generally
as a
enjoy sovereign
immunity
proceedings
from
in state courts.
the McCarran
Amendment,
enacted
Congress
expressly permits the
joinder
government
of the federal
involving
state suits
adjudication
purpose
See 43 U.S.C. 666. The stated
§
the McCarran
prevent piecemeal
Amendment
is to
adjudications by requiring
determination of all
in given
system
single
river
in a
proceeding. See United States v. District Court
(1971),
In
Eagle County
520, 525,
and For
998, 1002,
401 U.S.
91 S.Ct.
*10
The McCarran
in Colorado
encourages
allows and
state courts to
the
undertake
task
quantifying Indian
in
comprehensive
water
the course of
adjudications.
[Emphasis added.]
(1983),
545, 569, 103
v.
Apache
Arizona San Carlos
Tribe
463 U.S.
S.Ct.
3201, 3215,
¶39 Indian rights already general exist-a inter sese adjudication negotiations Rights with Montana Reserved Water Compact by analysis Commission. The DNRC’scase case of individual applications comprehensive adjudication. is not a Therefore, required participate the Tribes did not and were not in agency hearings concerning Lang’s application. Consequently, the 31,2001, attempt May grounds DNRC’s to circumvent our Order on the taken, agency developed adequate that the an factual record is not well reason, compel For that the motion to nor is their motion to mediation. compel is denied. mediation
ISSUE 3 Stults, Clinch, DNRC, MacIntyre Respondents Should the be in contempt? held Clinch, DNRC, suggest Stults, The that and the DNRC’s Tribes in
attorney MacIntyre, contempt disregard Don are for willful 3-1-501,MCA, injunction May 31,2001, Clinch and ofour order. Section judgment defines disobedience of lawful of the Court. contempt as monetary requiring The Tribes sanction and an order request attorney pay State to the Tribes’ fees. Respondents petition them move to dismiss the Tribes’ to have First, Respondents part in contend that contempt.
held that original three-prong exercising does meet the test for petition not presents since the issue issues of fact jurisdiction, especially contempt cannot decided in this which Court. by contempt that the claim presented Tribes contend issue enjoined this simple They point
is a one. out that Court from until issuing permits DNRC new water use on reservation In of that clear existing spite are Lang. proceeded issue a injunction, Respondents only The Tribes contend that the factual issue to determine which at a show-cause parties responsible that can be determined hearing Court. before this disagree Respondents’ with contention that this While we jurisdiction party typically Court would determine that not to. Court, by contempt disregard judgment for of a entered willful factual agree presents
we do with the DNRC the Petition before us example, and Clinch issues better resolved a district court. For Stults proceed issuance of they claim that did not make the decision to with They it was made then Governor Marc Racicot. permits but that acted on of counsel and that this Court’s they also claim that advice clearly unambiguously prohibit new decision Clinch did reasonable groundwater. MacIntyre gave contends he interpretation his ofour Respondents advice to the other based on attorney-client privilege, he presumably on decisions. based *11 attorney is not in specify nature ofthat advice. The Tribes’ does not are we. specific that advice and neither position know the nature of that there was disagree Respondents’ we with the contention While decision, agree we do anything or unclear the Clinch ambiguous about what, contempt issues to the issue that there factual relevant any, if appropriate sanctions are as the result of contempt may Therefore, occurred. Respondents’ have motion to dismiss the petition Respondents contempt judgment have held in ofthis Court’s May 31,2001, in Clinch and granted prejudice. order is without properly matter should more be raised the trial court where venue is established so that can presented evidence and factual issues resolved. Therefore, previously stated, hold, for the reasons we as we did
in Ciotti and in Clinch that the DNRC cannot determine whether water legally Reservation, available on the Flathead Indian whether surface groundwater, water or because the DNRC cannot determine whether the issuance ofpermits existing would affect until Tribes’ water are defined and quantified compact negotiation pursuant 85-2-702,MCA, by general or § inter sese water rights adjudication. Accordingly, again we once order that the DNRC not issue further use permits on the Flathead Reservation until have been judgment This decision and pertains to permits. all water use COTTER, NELSON,
JUSTICES REGNIER and DISTRICT BUYSKE, sitting JUDGE for JUSTICE LEAPHART concur. RICE,
JUSTICE concurring part dissenting part. herein, For the reasons expressed I concur with the Court’s original exercise of jurisdiction, concur with the conclusion that groundwater is included within the rights, Tribes’ reserved dissent from the enjoinment ofthe Lang permit, issuance ofthe and would decide the contempt by holding charged issue individuals have not acted contemptibly. The use of undeniably water resources is linked to civilization’s indeed,
advancement and many its survival. people for the Montana, who must live and survive on the Flathead Reservation in critical, whom this issue is brought adjudication this Court has ofwater grinding halt. extremely, More it has even barred issuance provisional permits. Legislature’s water use It has rebuffed the attempt to resolve questions respects in manner that all water It discharging has barred state officials from their constitutionally-mandated duty to address issues for the benefit matter, Montana citizens. Its successive decisions in this which are legally any practical reality, artificial and disassociated with created for our citizens a impasse. monumental It is as if the Court simply flowing, government believes that water has stopped can suspend regulating, necessities, people postpone pursuing can life’s adjudicated negotiated until all water is either the manner it *12 434 appropriate.
deems attempted, and must continue named here have The state officials use ofwater in this state. duty, to administer the attempt, their not violate this in a manner that does They attempted to do so have the directives of the decisions, in accordance with and Court’s respond in accordance with attempted has also Legislature, which have alarmed the the officials’actions this Court’s decisions. conclusion from this Tribes, understandably draw the Court’s who altogether, adjudication permitting must cease that water decisions actions, causing into the officials’ read malicious motives and therefore original for charge petition in a contempt a remarkable them to make by a series of accusations jurisdiction. That has been followed Extraordinarily, Respondent parties. between the counter-accusations duties in this matter and attorneys have been relieved of their intimately they have been regard to issues with which been silenced expertise in many years, depriving this Court of their involved engage new counsel. The State has been forced conducting its review. The answers to these Who is at fault? How has this all come about? today, us as is really quite simple. The crisis before questions are the decisions obvious, of none other than is the end result painfully us. enemy, met the and it is by this Court. Wehave issued herein. I original jurisdiction of the Court’s exercise I concur with of statewide rights are the Tribes’ reserved water agree for the exercise of requirement ofthis importance. To the consideration sovereign status as a I add that the Tribes’ original jurisdiction, would broadly legal issues which presumption nation carries with it of the reservation general resources or welfare people, affect the whole, and are impact, as a have statewide vital to the state Further, original jurisdiction. of suitable for the exercise particularly grant, I so compelled, and would original jurisdiction of the exercise between State intergovernmental stalemate in order to resolve the decisions of arisen of the of that has because Tribes over the use water this Court. statutory in Ciotti based on decision was The Court’s least, was, plausible, at Use Act that ofthe Water
interpretation
Ciotti,
See
278
defer, although clearly subject to debate.
I
which will
C.J., dissenting.) What was
(Turnage,
P.2d at 1085
Mont. at
result that the Court’s
was the
the Ciotti decision
alarming about
permitting
ofthe water
“a shutdown
statutory interpretation required:
at
responded to Ciotti Legislature said had mandated its decision. which the Court (l)(e) 85-2-311, MCA, which had paragraph disputed § removed evidence, receiving after finding, to make a allowed the in excess ofTribal unappropriated water existed which was that a provision require proof interpreted The Ciotti Court had rights, because the proposed use would not interfere with Tribal but rights, adequately account for Tribal Department’s procedure did not had proof could not be met until burden Thus, Legislature its intention that response, clarified permitting pending should continue finalization ofthe provisional water water,” “unappropriated adjudication process, concept deleted broadly process to the issuance of and created a inclusive allow *13 provisional applicant if the could establish that water physically legally Legislature, and consistent was both available. protect existing rights, with the constitutional mandate to all included rights existing rights. enacting the definition of In these Tribal within provisions, Legislature duty protect fulfilled its constitutional all rights fulfilling within the state while at the same time its duty undisputed to the welfare all Montanans to administer water resources for purposes. beneficial legitimate, my view, The enactment of S.B. 97 was a and in very problems
successful effort to cure the in the statutes which the Court, however, Ciotti Court had cited. This was undaunted Legislature’s permitting, again enjoined effort to restore and once holding that process in Clinch. The basis for the Court’s was that the establishing legal availability process impossible under S.B. 97 was (1) (2) insufficiently defined, legal availability because and was rights, rights stated in Tribal were not the same as state water way, protected, could not quantified not be the same could be therefore, permitting enjoined. all water had to be First, erroneously simplistically Clinch decided. the Court was “‘[l]egally faulted S.B. available’ is not defined... other than 97 because Clinch, precedent in the test.” 15. There is no three-part circular ¶ circuity wording fatal to its proposition in a statute’s is true, many if other statutes implementation, intended and that were legal would have suffered the same fate. The statute’s definition availability, analysis physical legal an of all required which demands, rights, specific protection combined with its of reserved Secondly, should have been found to be sufficient. the Court offered which, mantra, reduced its what has become its tired and ill-founded different, they essence, cannot be this: because reserved expertise it apparently possesses The Court assumes that rights necessary to make such a determination without a in water record, this required it has never a record reach factual because statutes, regulators administer the conclusion. The who statutes, Obviously, claim these can be determined. various rights; I not appropriated are different from but will reserved precludes proper this difference a presume so bold as to to review opportunity determination ofthose until I have had effect, Indeed, in Clinch “in evidence on the issue. the Court was injunction holding hearing.” a factual entering permanent without Clinch, J., holding in (Rodeghiero, dissenting). Consequently, ¶ majority’s reality: practical consequences Clinch defied “The of the deprive some Montana citizens of significant decision will be will necessities, of water.” 33¶ one of life’s the use basic statute, J., dissenting). proper On the basis of a with its (Rodeghiero, rights, including constitutionally protected all emphasis preserving on rights, the Court in Clinch should have allowed Tribal stage for the conflict before us proceed. Its failure to do so set today. Court, So, question before the again once we find similar addressing groundwater. precedent specifically
time Given issue, on I concur with the Court’s presented by the Tribes groundwater is included within the Tribes’ reserved conclusion that larger consequence here. The claims. But that issue is of small up process dam the entire until attempting is that the Court is issue fooling itself if it believes that gets it the result it wants. Court legal will the fined leak in the dike. Water plugged this decision has stop needing not it. flowing, simply and Montanans will simply stop *14 humanity bring the issue back. The demands of will contempt in involved in this matter I would not hold the officials duty in a maimer statutory constitutional attempting to dotheir and decisions. I would was, this Covert’s arguably, consistent with lawyers who were creative officialsand zealous expect nothing less from duty precedent. and required to balance Lang Doing so enjoin permit. the issuance ofthe I decline to would issue, dormant, regarding long bring the forefront a critical would this issue for federal review. The Tribes have reserved . jurisdiction. resolution, and most forum for system appropriate court is the federal courts. In this long ago by the federal addressed should have been Leaphart’s of Justice following portion regard, agree I with concurring in Ciotti: opinion the fact however, to reckon with courts, have failed
The federal
437 (whether constitutionally are the tribes question that the federal Act) a threshold presents Use from the Montana Water exempt any has Montana i.e., the state of whether jurisdiction; of question That instance. Act in the first its Water Use apply jurisdiction addressed must be jurisdiction state question of fundamental awaiting resolution of be court which should first.... It is the state court, not vice versa. in federal jurisdictional question J., 1082, (Leaphart, 65, n.1, P.2d at n.1 at 278 Mont. position, us in a difficult placed courts have concurring). The federal thereby contributing to and enough rope hang ourselves giving us appreciated. The getting us back out would be help Their this mess. hold “run the hare and to continue to with should not be allowed Tribes 66, 923 at 1083 Ciotti, Mont. at P.2d on issue. the hounds” this with J., concurring). (Leaphart, issuance concerned about the Understandably, the Tribes would be one, impose upon potentially that could permit, provisional a even a
of
remedies, only
not
various
they would
be without
their
said for Mr.
courts. The same cannot be
of
is the federal
one which
remedies, the
provision
over the
Lang. Despite
professed
its
concern
him,
many
like him
live on
and the
others
who
Court has afforded
water,
remedy
Despite
and need to use
no
whatsoever.
reservation
Lang’s application
consideration of
providing
statutes
for the deliberate
thereby,
many
may
affected
he and
and all other water
Court,
opportunity
ofthe
deprived,
other Montanans have
simply regrettable.
That
proceed
manner.
GRAY,
dissenting
part:
concurring part
and
CHIEF JUSTICE
concurring
dissenting opinion
agree
I
JUSTICE RICE’S
with
portions discussing
those
Ciotti.
except for
specially concurs:
JUSTICE NELSON
rel.
trilogy
of the
of State ex
Opinion.
I
in our
The rules
concur
76,
(1985),219 Mont.
Salish and Kootenai Tribes
Greelyv. Confederated
(1996), 278 Mont.
UsePermits
P.2d Matter
Water
Beneficial
(Ciotti);
Salish & Kootenai Tribes
water to those reserved water have not been Reservation; quantified priority as to amount or on the Flathead Indian therefore, cannot grant party right the State third a some Furthermore, appropriate may or use that the State not water own. not, Congress it Supreme like or unless or the United States Court changes jurisprudence trilogy the laws and federal this which Court’s grounded, statutory finessing of cases is no amount of or mental legerdemain going change principles. is these Indeed, Department of Resources and Conservation Natural (DNRC) put permit-issuing was on notice that it had lost the battle as early years Greely, Judge two after when District Gordon Bennett stated United States and Montana Power Co. v. (DonBrown) (D. 15, 1987), June Natural Resources Mont. No. 50612: of only way unappropriated [there is] one to determine if an right a supply: exists in source of decide how much water is appropriated. available and how much of it has This been is, obviously requires existing rights. There quantification likewise, only way rights one to determine whether adversely prior appropriators will be affected additional appropriation. begin by determining You must what the water case, prior appropriators of the are. In either the need to existing inescapable determine is ....
Ciotti,
62-63,
(Nelson, J., concurring).
is for non-Indian residential and presumably political pressure is intense That, however, on the Flathead Reservation. development commercial government justify apologetics does not for those branches opinion that characterizes the dissent-an inflammatory rhetoric totally devoid of which, uncharacteristically for its author-is analysis. legal reasoned “legally states, trilogy Court’s of cases If, as the dissent bench, explanation
artificial,” public legal then the bar and owed If, why postures, as the there analysis as to that is so. dissent *16 “calamity” threatening proportions “crisis” and of “monumental” indeed, and, its on the Flathead advancement survival” “civilization’s then, honest, the Reservation, intellectually to be fair and dissent why this Court’s unequivocally to demonstrate prepared should be legally how we opinions and instant decision are incorrect and and clearly legal principles erred applying established body jurisprudence govern of federal and Indian extensive law which, rights-principles, jurisprudence law create, is, nonetheless, incidentally, this Court did but obligated constitutionally to follow. written, dissenting little more opinion accomplish As will than
provide media; sound bites for further strain relations between Indians governments; provide and the non-Indians Tribal State who, fodder for those as a matter of course and in furtherance of their misguided agendas, public own to the the law and this misrepresent More to opinions. point, railing against Court’s instead settled law, might profitably the dissent’s frustration be more directed towards encouraging put unqualified the State to into quantifying its efforts rights using legal instead provided, Tribe’s reserved tools constantly trying to devise statutes to thwart those Opinion. I concur in the Court’s