MONTANA TROUT UNLIMITED, Objector and Appellant, v. BEAVERHEAD WATER COMPANY, GARRISON RANCHES, INC., PAUL H. CLEARY, JR. TRUST, MONTANA BOARD OF LAND COMMISSIONERS, HAIRPIN LC, SPENCO LLC, Claimants and Appellees.
No. DA 10-0382.
Supreme Court of Montana
Decided June 23, 2011.
Orally argued and submitted February 2, 2011.
2011 MT 151.
361 Mont. 77.
255 P.3d 179.
For Appellees: John E. Bloomquist (argued), Patti L. Rowland, Abigail J. St. Lawrence; Doney Crowley Bloomquist Payne Uda P.C., Helena (for Appellees Beaverhead Water Company; Garrison Ranches, Inc.; and Paul H. Cleary, Jr. Trust); Holly Jo Franz (argued); Franz & Driscoll, PLLP, Helena (for Appellees Hairpin LC and Spenco LLC).
For Amicus Curie: William A. Schenk (argued), Agency Legal Counsel, Special Assistant Attorney General, Montana Department of Fish, Wildlife and Parks, Helena (in support of Appellant Montana Trout Unlimited).
CHIEF JUSTICE McGRATH delivered the Opinion of the Court.
¶1 Montana Trout Unlimited (MTU) appeals from the Water Court‘s order filed June 4, 2010, dismissing its objections to water right claims by Beaverhead Water Company, Garrison Ranches and the Paul H. Cleary, Jr. Trust (Claimants). Those claims were contained in the Water Court‘s Temporary Preliminary Decree for the Big Hole River Basin issued on April 6, 2007. We reverse.
¶2 Pursuant to Article IX, Section 3(4) of the Montana Constitution, Montana law provides for an orderly process for adjudicating existing water rights. See generally
¶3 On April 6, 2007, the Water Court issued a temporary preliminary decree in Basin 41D, the Big Hole River. Pursuant to notice of the decree, MTU filed timely objections to several of the claims of each of the Claimants and requested a hearing. The Claimants moved to dismiss the MTU objections, arguing that MTU lacked standing to object. The Water Court converted the motions to dismiss to motions for summary judgment. MTU and Claimants waived their right to a hearing on summary judgment and stipulated that the Water Court could accept as true the assertions of fact made in their briefs and in the attachments to MTU‘s brief.
¶4 The Water Court determined that the motions involved only issues of law and ultimately granted summary judgment to the Claimants, holding that MTU lacked standing to file objections to the water right claims. In doing so the Water Court expressly incorporated its prior decision on similar standing issues issued in response to motions to dismiss objections filed by the Western Watersheds Project (Water Court Case No. 41D-2).
¶5 MTU is a membership conservation organization of anglers dedicated to the conservation, protection and restoration of coldwater fish, including wild and native trout in Montana. MTU has been actively involved in cooperative restoration efforts for arctic grayling and wild trout in the Big Hole River Basin and actively participates in the Big Hole Watershed Committee. MTU has contributed funding to support the implementation of a voluntary drought plan on the Big Hole which seeks to maintain minimum water flows without unduly
¶6 The Water Court acknowledged MTU‘s “historical contributions” in Montana‘s water adjudication efforts, noting its participation in litigation, the Water Right Adjudication Advisory Committee, legislative hearings, and the Water Court‘s rule-making proceedings. The Water Court concluded that MTU “contributed much to the outcomes.”
¶7 The Water Court decided the motions to dismiss MTU‘s objections by first applying
(1)(a) For good cause shown ... a hearing must be held before the water judge on any objection to a temporary preliminary or preliminary decree by:
(i) the department [of Natural Resources and Conservation];
(ii) a person named in the temporary preliminary decree or preliminary decree;
(iii) any person within the basin entitled to receive notice under 85-2-232(1); or
(iv) any other person who claims rights to the use of water from sources in other basins that are hydrologically connected to the sources within the decreed basin and who would be entitled to receive notice under 85-2-232 if the claim or claims were from sources within the decreed basin.
(b) For the purposes of this subsection (1), “good cause shown” means a written statement showing that a person has an ownership interest in water or its use that has been affected by the decree.
The Water Court held that while MTU was a person entitled to receive notice of the decree, it must also demonstrate “good cause” by showing “an ownership interest in water or its use that has been affected by the decree” when filing objections.
¶8 MTU filed a “statement of interest” to meet the “good cause” requirement. It recited MTU‘s participation in the Big Hole River fish and water flow protection and restoration efforts, its interest in promoting and protecting those efforts by insuring that water right
¶9 The Water Court held:
For purposes of the Claimants’ motions for summary judgment, the Court will assume that TU‘s statement of interest and the affidavits of its members sufficiently allege personal environmental and recreational interests of the members in the Big Hole River basin, distinct from the public at large, that arguably could be adversely affected by the temporary preliminary decree in the Big Hole River basin.
Under the broad standing requirements of the Montana Administrative Procedures Act and even broader standing requirements of most federal and Montana environmental protection statutes, such interests may be sufficient for persons to establish either constitutional or statutory standing to challenge the constitutionality of governmental acts or agency decisions.
However, personal environmental and recreational interests in the water, alone, are not sufficient to establish the “personal stake” required for standing to be heard on objections to claims in the present adjudication of existing water rights, unless those interests are coupled with an “ownership interest in water or its use ....” [Emphasis in original.]
The Water Court determined that the amendments to
¶10 The Water Court observed that there was no evidence that MTU or any of its members had filed any water right claims in the adjudication process or that they had applied for post-July 1, 1973 certificates or permits to use water. Further, the court determined that under Montana law, only the DNRC and the DFWP are authorized to “represent the public in the adjudication process.” See
Legislature and the Supreme Court have resolved the public policy and legal debate on who represents the public in the adjudication process. As a result, TU does not have standing to champion the public interests either through the filing of claims or through the filing of objections to claims.
MTU, therefore, was precluded from filing water claims for public recreational or wildlife purposes, from filing objections to claims or from requesting hearings on objections to claims.
¶11 Last, the Water Court considered MTU‘s contention that, in the alternative, it had a “legitimate role to play” in the Big Hole adjudication to insure that DNRC issue remarks were properly resolved. Issue remarks are statements by the DNRC added to its abstracts of water right to “identify potential factual or legal issues” associated with the claims.
¶12 The Water Court again recognized the role that MTU has played in the water adjudication process generally and in the habitat restoration and water administration efforts on the Big Hole River in particular. However, the Water Court concluded since MTU‘s interests “are not coupled with an enforceable ownership interest in the water or its use” acquired under Montana law, its role lies not in filing objections but in “the myriad other opportunities and programs established by state law that invite and encourage the kind of interests, dedication, and expertise evidenced by TU in this case.”
¶13 MTU raises issues on appeal that we restate as follows:
¶14 Issue 1. Whether the Water Court erred in holding that only the DFWP may represent public recreational and conservation interests in water adjudication proceedings.
¶15 Issue 2. Whether the Water Court erred in holding that only water right claimants may request a hearing on their objections in water adjudication proceedings.
¶16 The Water Court decided this case on summary judgment after determining that there were no material facts in dispute and only issues of law. This Court applies the same standards of review to the Water Court as it does to an appeal from a district court. Department of State Lands v. Pettibone, 216 Mont. 361, 368, 702 P.2d 948, 952 (1985). This Court reviews a lower court‘s conclusions of law concerning the construction of a statute de novo, to determine whether they are correct. Hulstine v. Lennox Ind. Inc., 2010 MT 180, ¶ 16, 357 Mont. 228, 237 P.3d 1277.
DISCUSSION
¶17 Issue 1. Whether the Water Court erred in holding that only the DFWP may represent the public recreational and conservation interests in water adjudication proceedings.
¶18 The Water Court noted that at least one of the goals of MTU‘s objections to the Claimants’ statements of claim was to insure that water would be available in the Big Hole River for fish habitat, and to fulfill the in-stream water reservation claim by the DFWP. In light of this purpose, the Water Court relied upon
¶19 This is an erroneously broad application of
¶21 In addition, the Water Court held that
¶22 When the time for filing objections and counter-objections has expired, the Water Court “shall fix a day when all parties who wish to participate in future proceedings are required to appear or file a statement. The water judge shall then set a date for a hearing.”
¶23 In summary, there is no statutory or regulatory restriction on who is entitled to file an objection to a claim of water right contained in a temporary preliminary decree, and the Water Court‘s holding to the contrary was in error.
¶25 The Water Court held that under
¶26
¶27 While the Water Court dismissed MTU‘s objections under
¶28 The Water Court applied the common law rules of standing and concluded that MTU had sufficiently alleged environmental and recreational interests of its members in the Big Hole River basin that
¶29 All waters in Montana are the property of the State of Montana for the use of its people.
¶30 The State holds title to the surface waters of Montana for the benefit of its citizens, including the Claimants and the members of MTU. This is reflected in Montana law.
¶31 This Court will harmonize statutes relating to the same subject in order to give effect to each. State v. Brendal, 2009 MT 236, ¶ 18, 351 Mont. 395, 213 P.3d 448. We also must view the statute within the context of the meaning and purpose of water rights adjudication in Montana.
Terminology can affect how people think about the subject. The words “property right” draw to themselves and connote a bundle of old, sacred, absolute, and inviolate ideas of exclusivity, possession and permanence. Although these concepts are not alien to water law, they are not the language of water law ... because water law does not deal with these things, but with uses, re-uses, sharing, and priorities rather than exclusivity, possession or even permanence.
Stone at 73.
¶32 Since inception of the water rights adjudication process, the Legislature has acknowledged these concepts in the doctrine of exchange and efficient use requirements. Stone at 61, 71; see also
¶33 A fundamental aspect of the present case is that the Water Court found that MTU, or more properly its members, had demonstrated personal environmental and recreational interests in the
¶34 We conclude, based upon the State‘s ownership of the waters of Montana which it holds in public trust for the benefit of its people, and the undisputed specific interests of the members of MTU in the Big Hole River basin that MTU—under the facts of this case—has a sufficient ownership interest in water or its use to demonstrate “good cause” to require the Water Court to hold a hearing or hearings on its objections under
¶35 Our interpretation of
¶36 The water right adjudication statutes begin with the broad requirement that all persons claiming water rights that arose before July 1, 1973, file notices of their claims.
¶37 The Water Right Adjudication Rules reflect the broad reach of the statutes. Rule 1(b), W. R. Adj. R., describes the adjudication process, including notices of decrees; the “opportunity for interested persons to review and object ... for good cause;” hearings by the Water Court on “issues raised in these proceedings;” and “the opportunity for interested parties to review and appeal the final decree.... ” Rule 5, W. R. Adj. R., specifies the content of objections and the time within which they must be filed, but does not otherwise restrict the persons who can file objections. Rule 9, W. R. Adj. R., requires the Water Court, after compilation of all objections to claims, to set the date when “persons other than the claimants, objectors, or counter-objectors to a particular claim shall file a notice of intent to appear ....” Rule 9(b), W. R. Adj. R., further describes these notices of intent to appear:
Any person other than the claimant or objector who intends to appear and participate in further proceedings for any claims or issues included on the objection list must file a notice of intent to appear in compliance with § 85-2-233, MCA.... The person filing a notice of intent to appear shall specify the claim number and include a statement of the appearing person‘s legal rights that might be affected by the resolution of the objections or issues involving the specified claim, and the purposes for which further participation is sought. Persons who file notices of intent to appear as provided in this rule shall receive notice of all future proceedings involving the claims specified in their notice and are entitled to participate in the resolution of the issues associated with those claims.
It is incongruous, at least, to exclude MTU from substantively participating in the adjudication of the Big Hole River, but to allow any other person to file a notice of intent to appear and to participate without meeting the “good cause” requirement of
¶38 Prior decisions of the Water Court also reflect a broad approach to participation in the adjudication process. In its 2002 opinion approving the Chippewa Cree Tribe Water Compact, 2002 ML 4232, Case No. WC 2000-01, the Water Court adopted an express “broad tent” policy with respect to considering objections to water compacts. As long as the objections are not arbitrary, irrational, unreasonable, or irrelevant then only a “minimal claim or interest in land or water that could feasibly be adversely affected” is sufficient to constitute “good cause.” The Water Court allowed objectors to the compact to
¶39 In the Bean Lake cases, which involved the issue of whether DFWP held a valid pre-1973 public recreational appropriation right for fish and wildlife, the Water Court recognized the importance of the issue, gave wide notice, and invited participation by interested persons who were “allowed the equivalent of objections.” Bean Lake I, 234 Mont. at 334, 766 P.2d at 230. Over 50 individuals and organizations accepted the Water Court‘s invitation and objected to DFWP‘s claimed public recreational use right. When the DFWP contested the standing of the Montana Stockgrowers Association to object because there were only two actual appropriators from the water source and neither was represented by the Association, the Water Court held that the Association had standing to proceed as a party on behalf of its members because they “could be affected” by the outcome of the case. Bean Lake I, 234 Mont at 336, 766 P.2d at 231.
¶40 The Water Court in a subsequent proceeding held that because of the significance of the issue of recreational water rights, the DFWP should be required to “bear all the costs” of the Stockgrowers Association‘s participation in the case. Shifting the burden of attorney fees was, in the view of the Water Court, necessary to “ensure full presentation of all public interests” and, without such funding, “certain viewpoints may not be presented and as a result the overall integrity and effectiveness of the adjudication process may be diminished.” Bean Lake II, 240 Mont. at 41-42, 782 P.2d at 899 (wherein this Court reversed the award of attorney fees on the ground that the recreational use claim by DFWP, even though unsuccessful at that time, had been made in good faith and in accord with constitutional and statutory mandates). The Water Court‘s view of Bean Lake and the
¶41 Decisions from this Court are similarly reflective of the importance of broad rather than narrow rights of participation in water adjudications. In In the Matter of Adjudication of Rights in the Yellowstone River, 253 Mont. 167, 832 P.2d 1210 (1992), which dealt primarily with the issue of abandoned water rights, the Court stated that “comprehensive participation, extinguishing duplicative and exaggerated rights, and ridding local records of stale, unused water claims” are “all necessary to meet the objective of adjudicating Montana‘s water.” Adjudication of Rights in the Yellowstone River, 253 Mont. at 179-80, 832 P.2d at 1217.
¶42 The Montana Water Use Act anticipates that there will be disagreements over the use of water among varying interests and “the integrity of Montana‘s adjudication process depends upon the assertion and ultimate resolution of these varying interests. The provisions of the Act charge all water users with the duty of asserting and defending their interests.” Bean Lake II, 240 Mont. at 42, 782 P.2d at 900. This Court has recognized the importance of an adjudication process to firmly establish existing water rights and the necessity of “comprehensive participation, extinguishing duplicative and exaggerated rights, and ridding local records of stale, unused water claims.” Adjudication of Rights in the Yellowstone River, 253 Mont. at 179-80, 832 P.2d at 1217.
¶43 The Water Court expressed concern in its opinions on this issue about the consequences of allowing MTU to litigate its objections to the Claimants’ claims. The Court expressed concern in the Western Watersheds opinion over using the public trust doctrine as a “trump card to rearrange the ladder of appropriation priorities in any water source ....” This is not an issue in the MTU case. Neither MTU nor any other participant has advocated using the public trust doctrine to rearrange appropriation priorities. The Water Court also expressed concern that if any person making recreational use of water has a property interest in the water rights adjudication, then they have not been receiving notice and the effort to adjudicate Montana‘s water rights “would be for naught.” It appears from the record that the Water Court has been scrupulously following the public notice requirements of the water adjudication statutes, including providing notice to all persons who request notice of decrees.
¶44 Last, the Water Court expressed concern that allowing MTU to be heard would “open the process to a multitude of objections” that would overwhelm the process. First, this is contrary to past cases such as Bean Lake I in which the Water Court invited all interested persons to participate as objectors. At that time participation by public interest groups like the Montana Stockgrowers Association was expressly viewed as a benefit to the adjudication process. Second, the Water Court, as a court, has sufficient procedural tools and powers to ensure that its proceedings do not get bogged down with the presentation of repetitive or immaterial evidence, or dilatory tactics. This includes, for example, the power to consider “relevant evidence” (
¶45 The decision of the Water Court is reversed and this matter is remanded for further proceedings consistent with this opinion.
JUSTICES BAKER, WHEAT, COTTER and MORRIS concur.
JUSTICE NELSON, concurring in part and dissenting in part.
¶46 I concur in the narrow result of the Court‘s decision, holding that MTU has standing in the Water Court vis-à-vis the Big Hole River basin water rights adjudication. Respectfully, however, I dissent from two facets of the Court‘s analysis.
¶47 First, while I agree that justiciability requirements (standing, in particular) apply to the Water Court, I do not agree that this is a matter of “common law.” Second, while I agree that MTU has standing under the governing statutes, I do not agree with the breadth of standing the Court has construed those statutes to accord. I address these two points in turn.
Justiciability
¶48 The Supreme Court has held that courts created under Article III of the United States Constitution are limited in their exercise of judicial power to the adjudication of “cases” and “controversies.” Flast v. Cohen, 392 U.S. 83, 94-95, 88 S. Ct. 1942, 1949-50 (1968). This Court has held that courts created under Article VII of the Montana Constitution are subject to the same limitation. Greater Missoula Area Fedn. of Early Childhood Educators v. Child Start, Inc., 2009 MT 362,
¶49 Why the Water Court is a court to which the justiciability doctrines apply is a threshold question left unaddressed by the Court‘s Opinion. Simply being denominated a “court” does not automatically bind a tribunal to the case-or-controversy restrictions. An example of this can be seen in the District of Columbia Superior Court and the District of Columbia Court of Appeals (which are distinct from the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit). Congress created these two “Article I courts” pursuant to Article I, Section 8, Clause 17 of the United States Constitution. Although they exercise federal judicial power with respect to local laws, the District of Columbia courts are not bound by the strictures of Article III. Palmore v. United States, 411 U.S. 389, 93 S. Ct. 1670 (1973); McIntosh v. Washington, 395 A.2d 744, 749 n. 10 (D.C. 1978). That includes the case-or-controversy limitation. Lee v. Dist. of Columbia Bd. of Appeals and Review, 423 A.2d 210, 216 n. 13 (D.C. 1980). Thus, while these courts have applied justiciability requirements for policy reasons, Atchison v. Dist. of Columbia, 585 A.2d 150, 153 (D.C. 1991), they have understood that those requirements may be legislatively overridden, Grayson v. AT&T Corp., 15 A.3d 219 (D.C. 2011) (addressing whether amendments to the D.C. Code eliminated the court‘s self-imposed standing requirement).1
¶50 The fact that the Water Court performs an adjudicatory function is also not dispositive. In Montana, there are various agencies that exercise a “quasi-judicial” function, which means “an adjudicatory function ... involving the exercise of judgment and discretion in making determinations in controversies.”
¶51 The error in the Court‘s Opinion, therefore, is the suggestion that our justiciability doctrines are based in common law. This poses the danger of importing these doctrines wholesale into contexts for which they were not intended, or the risk of misapplying the doctrines due to a lack of understanding of their function and purpose. Standing requirements, such as the showing of an injury to a property or civil right (Opinion, ¶ 27), were adopted to enforce the case-or-controversy limitation on a particular class of courts. Hence, the applicability of those requirements depends, obviously, on whether the given tribunal is limited, by the constitutional or statutory provision establishing it, to entertaining only “cases” and “controversies.”
¶52 Unlike Article III, Section 2, Clause 1 of the United States Constitution, there is no provision in the Montana Constitution limiting the judicial power of the state to specific classes of “cases” and “controversies.” The only express case-or-controversy limitation is in the grant of jurisdiction to the district courts under Article VII, Section 4. See Olson, 223 Mont. at 469-70, 726 P.2d at 1166 (observing that the language “all civil matters and cases at law and in equity” in Article
¶53 I need not delve into that issue here, however, as it is not apparent from the statutes establishing the water divisions and the water judges that the Water Court was set up as a specialized version of the district courts. There are four water divisions established to adjudicate water rights.
¶54 If the Water Court is effectively a specialized district court assigned to make water right determinations within its jurisdiction—and, in light of the foregoing statutes, I conclude that it is—then it follows that the Water Court is limited, like district courts, to adjudicating only cases and controversies. As such, MTU must
¶55 For the sake of brevity, I will not engage in an analysis of how MTU has satisfied the foregoing standing criteria. I agree with the result of the Court‘s decision on this point, as well as much of the Court‘s rationale. The purpose of this discussion is not to address whether MTU has met constitutional and prudential standing requirements. It is to explain, rather, why MTU must meet those requirements in the first place. As discussed, the reason is not due to generally applicable “common law rules” as the Court suggests, but because the Water Court is subject to the same case-or-controversy limitations as the district courts.
Statutory Construction
¶56 Besides the case-or-controversy requirements, there are statutory restrictions on who may appear before the Water Court. MTU contends that to the extent the statutory standing rules preclude it and its members from obtaining a remedy for alleged injuries, the statutes violate Article II, Section 16 of the Montana Constitution. Since I conclude that MTU has standing under the statutes, however, I do not reach that issue.
¶57 At the outset, I agree with the Court‘s holding (under Issue 1) regarding the Water Court‘s application of
¶58
¶59 At issue here is the “good cause” requirement. The Court reasons that because the State owns the waters of Montana and holds them in public trust for the benefit of its people, and because MTU‘s members have “personal environmental and recreational interests” in the Big Hole River basin, MTU therefore has a sufficient “ownership interest” in water or its use to demonstrate “good cause” for a hearing on MTU‘s objections. Opinion, ¶¶ 33-34. In so doing, the Court effectively reads the “good cause” requirement out of the statutory scheme. The Court holds that where a party has met all “common law” standing requirements and has satisfied the minimal statutory requirements of requesting notice and filing an objection, that is sufficient and the party is entitled to a hearing. The Court rejects the notion that such party must make any further showing. The statutory requirement of “good cause” either is not at issue or is simply subsumed into the party‘s request for notice and filing of an objection. I do not believe this approach is faithful to the intent of the statute.4
¶60 The Court has used the fact that “[t]he State holds title to the surface waters of Montana for the benefit of its citizens” (Opinion, ¶ 30) to drain the term “ownership” in the statute of any force or relevance. Indeed, according to the Court‘s reasoning in ¶ 34, a person has a “sufficient ownership interest” if (1) he or she is a citizen of Montana and (2) he or she alleges a personal environmental and recreational interest in the particular water basin. While the Court claims this approach does not render the word “ownership”
¶61 In my view, “the State‘s ownership of the waters of Montana” (Opinion, ¶ 34) is beside the point. The statute refers to “an ownership interest in water or its use.”
¶62 Indeed, MTU concedes that “an ownership interest in water” refers to “a water right claim.” The question, therefore, is what “or its use” refers to. Addressing this question, MTU points out that because a water right is a usufructuary right—i.e., “[a] right for a certain period to use and enjoy the fruits of another‘s property without damaging or diminishing it, but allowing for any natural deterioration in the property over time,” Black‘s Law Dictionary 1684 (Bryan A. Garner ed., 9th ed., Thomson Reuters 2009) (emphasis added)—it would be redundant for the statute to mean “an ownership interest in water or [an ownership interest in] its use,” as these two clauses mean the same thing. Being usufructuary, an ownership interest in water is an
¶63 The Water Court is required to provide notice of a temporary preliminary decree or preliminary decree not only to each person who has filed a claim of existing water right within the decreed basin, but also to any “other interested persons who request service of the notice.”
¶64 It seems to me that the critical limiting language of the statute is to be found in the phrase “that has been affected by the decree.” See
¶65 In light of the foregoing, I would hold that a demonstrated interest in the use of the water, coupled with a personal and concrete injury resulting from the decree, is necessary to establish “good cause” under the statute. Here, MTU has met this requirement in light of the organization‘s restoration efforts and accomplishments in the Big Hole River basin, its expenditures to achieve those ends, and the specific
Conclusion
¶66 In sum, I agree that the decision of the Water Court must be reversed. MTU has satisfied constitutional, prudential, and statutory standing requirements. But I disagree with the notion of “common law rules of standing,” and I also disagree with the Court‘s broad construction of
¶67 For the reasons set forth, I concur in the result of the Court‘s decision but dissent from the Court‘s analysis under Issue 2.
JUSTICE RICE, dissenting.
¶68 The Court offers several times that “there are no stated limits on who can file objections to claims in temporary preliminary decrees” under statute, see Opinion, ¶¶ 36, 21, 23, and reasons that this absence of limitation necessarily translates into a likewise broad right to a hearing. Opinion, ¶ 36. The Court concludes that MTU “has a sufficient ownership interest in water or its use” under
¶69 That there are “no limits on who can file objections” is true only in a most technical sense, for the statutes clearly impose a limitation upon objections which may proceed to hearing.
For good cause shown and subject to the provisions of subsection (9), a hearing must be held before the water judge on any objection to a temporary preliminary decree or preliminary decree by:
(i) the department;
(ii) a person named in the temporary preliminary decree or preliminary decree;
(iii) any person within the basin entitled to receive notice under 85-2-232(1); or
(iv) any other person who claims rights to the use of water from sources in other basins that are hydrologically connected to the sources within the decreed basin and who would be entitled to receive notice under 85-2-232 if the claim or claims were from sources within the decreed basin.
¶70 MTU is included on this list of eligible objectors because it requested service of notice of the temporary preliminary decree from the Water Court, under
¶71 First, “person” is defined as “an individual, association, partnership, corporation, state agency, political subdivision, the United States or any agency of the United States, or any other entity.”
¶72 Therefore, the conclusion that MTU “has a sufficient ownership interest” in either the water or its use is incorrect. Opinion, ¶ 34.
¶73 I agree with Justice Nelson‘s analysis that the Court has erred by importing common law standing concepts to this case. As he notes, the Water Court is a legislative creation, a specialized court created to perform a specialized function. In creating the Water Court, the Legislature specifically crafted the process to be followed by the court, including the standing requirements. I would enforce them as enacted and intended. While MTU makes several references to constitutional provisions within its arguments, it does not mount a constitutional challenge to the statutes governing the Water Court. I further agree with Justice Nelson that the Court has broadly opened the Water Court to a public participation process which was not intended under the statutes.