*1
MONTANA,
GREELY,
STATE OF
rel.,
MIKE
ex
Attor
ney General,
Petitioner,
v. WATER COURT MONTANA,
STATE OF
Lessley;,
and the Hon. W.W.
Respondents.
Judge,
al.,
Chief Water
et
No. 84-333.
Submitted Oct.
1984.
Decided Dec.
1984.
As Amended Jan.
Mike Atty. Chris Tweeten argued, Atty. Gen., Helena, Asst. petitioner. for Bozeman,
Sarah Arnott argued, respondents Hon. Lessley, Thomas, W.W. Chief Judge, Water Hon. B.W. Dis- Holter, trict Judge, Hon. Judge, Robert M. District Roy Hon. C. Rodeghiero, Judge. District James H. argued, Tribes, Goetz Salish and Kootenai Boze- man, Watson, Blake argued, Dept, U.S. of Justices for Fed. Agencies, D.C., Decker, Pablo, Washington, Daniel F. Boulder, Colo., Jeanne Whitening, Pelsyger, S. S. Robert Boulder, Colo.., Bull, Frances Lame L. Billings, Edward Meredith, Membrino., Billings, Joseph Washington, R. D.C., Joseph McKay, Browning, Peyton, Washing- J. Reid ton, D.C., Luebben, Philip Roy, E. Thomas E. Browning, Albuquerque, N.M., Rowland, Deer, Allen E. Lame Norman Hollow, Stewart, Poplar, Joseph Agency, Donald Crow Felsman, Pablo, Person, Browning, Earl Old Franklin R. Perez, Harlem, Belcourt, N.D., Windy Boy, John William Veeder, D.C.,
H. Washington, for amicus curiae. MR. Opinion JUSTICE WEBER delivered the Court. Montana,
The Attorney pursuant General for the State of M.R.App.Civ.P., Rule this Court for petitioned has an exercise of its supervisory power over the Water Court court, the State of Montana in their judges and the litigation pursuant conduct of the commenced this Court 85-2-211, MCA, to section ques- under cause no. 14833. The presented application tions as were: 1. Notwithstanding “disclaimer so-called clause” Constitution, Article I оf the Montana does the Montana law, jurisdiction, Water Court have as a matter of state adjudicate federal held States in trust for Indians and Indian tribes the State of Montana? adjudication Is the water process provided the Mon- *3 Act, 2,
tana MCA, Water Use Title ade- Chapter legally quate to adjudicate by federal reserved held rights water the United in States trust for Indians and tribes Indian the State of Montana.
The Attorney requested General parte opportunity an ex present to argument oral our acceptance original ju- on of argument presented risdiction. Such oral was this before by Court the Attorney by attorney General and the for the Tribes, rеquested Confederated Salish and Kootenai who leave to intervene curiae. This Court then or- as amicus respondent dered a the Water briefing granting schedule to every Court time which to file a brief. Each and Montana, Attorney tribe in the of United States State Montana, General, Attorney States United were also invited to Department States of Justice Attorney file The General was di- briefs as amici curiae. sup- petition, rected his the brief copy to serve a true of thereof, port Order on the United copy and a of the Court’s General, Attorney for Attorney United States States Montana, Justice, Department the United States of and all 29, 1984, Indian tribеs the matter Montana. On October orally was argued sitting before this Court en banc. accept jurisdiction We have concluded that will petition supervisory for writ of control of the Water Court.
I Is this Court barred from section 85- taking jurisdiction 2-217, MCA, provides gener- proceedings all ally adjudicate rights reserved Indian waters and federal re- the tribes are rights suspended served water are while negotiating? passed the Water Use administer, all regulate
Act control and system within the and to establish a State Montana 85-2-101(1), all Section rights. centralized records of such policy MCA. The Act Montana’s regarding defined water resources as follows: chapter policy purpose
“It is the of this state and a of this encourage use of the state’s water resources wise with making appropriation them available for consistent utilization, develop- chapter provide and to for the wise ment, the state for the and conservation of the waters of possible deg- maximum with the least people benefit of its “ ecosystems . . . Section aquatic radation of the natural 85-2-101(3), MCA. specify Water Use Act was amended are included
federal and Indian reserved water general adjudication existing for the intent of rights, by compact. general either as claims or is set legislature regarding *4 83-2-701, forth section MCA:
“Legislative Intent. rights and water Beсause the water interrelated, is the intent within each water division are it for the legislature proceedings to conduct unified general adjudication existing under Therefore, the intent of it is Montana Water Use Act. required in petition attorney general’s Indian of reserved 85-2-211 include all claimants author- parties under necessary indispensable rights as However, it is fur- by 43 U.S.C. 666. ity granted the state proceed under ther intended that the state of for compacts conclude part in an effort to provisions of waters between apportionment of equitable division and claim- Indian tribes people its and the several the state and the state.” ing reserved wаter within (Indian Water Federal time that Part 7 At the same 2, the Act was also Chapter to Title Rights) was added state- Attorney begin General amended to direct wide as follows: general. May by attorney
“Petition days after Within attorney 11, 1979, relation of the upon the state of Montana require supreme court to general petition shall the Montana to file a persons all a water division claiming right within 85-2-221, MCA. right provided claim of the section, petitioned Attorney General Pursuant to this an order petition sought in cause no. 14833. The Court Indian rights, including directed to all claimants of water MCA) (section 85-2-701, and this MCA) (section 85-2-212, issued such an order but not required every person, including 1979. That Order association, individual, public partnership, limited to an county, city municipality, private corporation, or other agency and federal agency of the state of Montana or as trustee of America on its own behalf the United States claim tribe, file a statement of or Indian July existing right arising prior to an Water Reserved between the Montana Negotiations were also several tribes Rights Compact Commission and & -702. 85-2-701 commenced 1979. See section currently contin are negotiations such We are advised that all but one Compact Commission uing between now in are negotiations such Montana Indian tribe. Because *5 progress, question has been raised whether this Court’s assumption of original jurisdiction wording violates the or 85-2-217, MCA, intent of section provides: “While negotiations compact for the conclusion of a under part being pursued, 7 are generally adju- all dicate rights reserved Indian and federal reserved water rights water of those agencies tribes and federal which are are negotiating suspended. obligation The to file water rights suspended. claims for those reserved rights is also suspension 1, 1985, This July shall be effective long until as negotiations as continuing completed are or ratification of a compact being sought. approval by If the state and tribes or federal agencies acсomplished by has not been July 1, 1985, suspension shall terminate on that date. Upon supervision part, termination of the of this the tribes and the agencies subject special federal shall be to the filing 85-2-702(3) requirements of requirements all other the state water adjudication system provided for Title 85, Chapter 2. Those agencies tribes and federal that choose not negotiate rights subject their reserved water shall be operation to the full adjudication system of the state may suspension provisions not benefit from the of this section.” present
Is the request supervisory prohibited for control a proceeding generally adjudicate reserved Indian watеr rights? While not all agree, members of this Court so we conclude that not fall within proceeding does prohibitions of section MCA.
The underlying action is No. action for cause an the adjudication of all existing water which was com- menced in 1979 with the of this Court’s order. See issuance 85-2-214(1), petition section MCA. The before us now re- quests powers supervisory that we exercise our control Court, over the Water which administers the Water Use Act. Our supervisory control is directed toward that ex- isting proceeding, gen- action and does not constitute a “to erally adjudicate reserved Indian Section 85- rights.” water
2-217, MCA, clearly prohibits proceeding such a while cоm- pact negotiations or are continuing. pro- ratification This ceeding will not generally adjudicate an Indian reserved water right right, either as a in part. whole or petition supervisory control asks this Court to de- scope
fine the State’s over Indian re- served presents preliminary question can of whether proceed- Water Court conduct unified ings general for the adjudication of all existing in Montana in the compact absence of a negotiation sus- *6 pension. The issues before us are limited to a determination of the effect of our constitutional disclaimer on mat- subject ter jurisdiction by the Water Court and whether the Water Use Act is adequate adjudicate rights. These questions any should be determined before further steps are generally taken to adjudicate Indian re- rights. served
We hold that suspension provision of section MCA, prohibit does not taking jurisdiction our in this cause.
II What is the basis for this Court’s assuming original jurisdiction of petition supervisory for control? cases, two recent we have discussed length at some reasons for our Grossman v. original jurisdiction. exercise of State, Dept. (Mont. Natural Resources 1984), P.2d [209 427,] 682 P.2d 41 Rep. (declaratory St. 804 judgment proceeding); Montana Power Company v. Public Service (Mont. 1984), Commission 76,] Mont. P.2d 41 [214 control). St. Rep. (request supervisory for While Grossman declaratory judgment is a and proceeding present control, proceeding supervisory is for the fac- tors considered in taking original are rele- vant worthy and of discussion here:
1. Grossman was recognized designed as a test case to ob- validity of coal judgment tain a final on the constitutional manner, comparable severance tax revenue bonds. judgment obtain a final present designed is application in view validity of Water Use Act on the constitutional I, Const. in Art. Mont. of the disclaimer clause contained for the first time questions presented legal 1972. Both are this Court. before Grossman interpretation pure le- sought this Court’s 2. statutory and constitutional construсtion. gal questions of manner, seeks answers to present petition In a similar statutory pure legal questions of both constitutional I, contained Art. construction of the clause disclaimer Const, in relation to Indian Mont. Water Use Act and the rights. In Grossman we concluded that emergency urgency These acceptance original jurisdiction. factors argued proposed to issue inability factors included the of the state re- until raised were coal severance tax bonds issues manner, until the issues solved this Court. In a similar resolved, unable to the Water Court presented here are of water proceed general adjudication with the tribe Montana, by аn Indian including the water held The Water capacities. the United State of its adjudi- with the prepared proceed organized Court is decrees, requires preliminary process. process cation That *7 ultimately final decrees. hearings, proof, argument, in Mon- claimants right Since there are of water thousands tana, to wait until that inappropriate it singularly would be appeal of a final process completed is and until an entire Court, this Court addresses decree is made to this before for petition in the presented issues that are the threshold by the issues been reserved supervisory control. These have Arizona See federal courts for state court determination. (1983), 545,-, 103 Apache San Carlos Tribe U.S. Tribe Cheyenne Northern 837, 852; S.Ct. 77 L.Ed.2d (9th un- 1983), 1188. If we wait v. Adsit 721 F.2d Cir. decrees, and ex- deal of time appeal great the of final til pense could be wasted. factors time and cost These urgency prompt demonstrate an determination Court. Grossman, appropriate
4. In we it to reasoned was accept in legislative order that correction could be in necessary. made the Bond Act should that be Simi- larly if adequate protect the Water Use Act not adjudicate held rights, Indian order, pursuant tribes to treaties executive then it is im- portant early to reach that in determination at an datе or- der to allow opportunity an correct the Act.
In considering factors, history these a brief of the review of water in rights litigation appropriate. Montana is Mon- 1973; however, tana’s Water Use Act was enacted state- wide adjudicatory did not until commence after time, Act was amended 1979. Prior to that Northern Cheyenne action in brought Tribe had an United January States District Court Montana in seeking adjudication an of its certain Montana Shortly thereafter, streams. brought two States suits in court, seeking same a determination its rights on own and of a behalf number tribes, including Cheyenne. The Northern Northern Cheyenne’s was action consolidated with one of the Govern- ment’s actions. Other tribes intervened. Each of concerned the federal actions general adjudication sought was a inter sese of all users of the streams determine the at issue. activity forum,
While taking place was in the federal the State of proceeding Montana was under Water Use Act, as originally July enacted. Montana De- partment peti- of Natural and Conservation filed Resources tions in commencing comprehensive proceedings state court adjudicate at issue in in the same streams the federal cases. stayed pending federal actions were
152 in Colorado River Supreme United decision States Court’s v. (1976), Cоnservation District United States 424 U.S. (1) 800, 1236, 96 483. That case held that S.Ct. 47 L.Ed.2d 666), (43 section the McCarran Amendment U.S.C. to immunity waived of the United States as sovereign provides comprehensive rights adjudications, state water to Indian water jurisdiction adjudicate state courts with (2) States, in light in rights held trust United Amend- policies federal the McCarran underlying clear ment, brought by suit the United States rights a water in favor of concur- properly federal court was dismissed same issues comprehensive adjudication reaching rent River the Colorado decision Colorado state court. When down, filed a motion to dismiss came the State of Montana 1976, Although argued the federal suits. the motion was it was not decidеd until 1979. 1979, April
In States filed four more suits rights federal court seeking adjudicate its In No- of various Indian tribes in other Montana streams. 1979, vember Battin and Hatfield consoli- Judges various divisions of pending dated the cases before United each of the fed- States District Court and dismissed Tongue Cheyenne Tribe River eral actions. Northern (D.C. 1979), Water Users F.Supp. Mont. 31. meantime, Supreme the Montana Court extended existing under filing the deadline for claims of 30, 1982. January April Use from Water Act 1228; Rights re See, (1979), Su- Water Order St.Rep. 1981). (Dec. 7, preme The Court Order 14833 Compact Rights had created the Water Montana Reserved well. MCA Commission time as Section (1979). reversed Appeals
On Ninth appeal, Circuit Court Northern cases. the district courts’ dismissal of the federal 1982), Cheyenne (9th Tribe v. Adsit Cir. 668 F.2d (1) cho- When a state has Appeals held over subject jurisdiction sen disclaim matter lands, I, as Montana did Art. Const. Mont.
court adjudicate Indian water lack- *9 (2) ing repeal disclaimer; a absent valid of the the and River, Colorado in Supreme United States Court’s decision 800, 424 L.Ed., 483, applicable U.S. 47 2d was to the not of Colorado River’s “limited litigation because circumstance,” infancy factual the of both federal and state proceedings Montana, in possible inadequacy the state proceedings, might and the fact the Indians not be adequately represented by States in light court of conflicts of interest Federal between thе responsibilities Government’s as trustee and its claims own to water. turn, appealed that decision was the United States
Supreme Court, which reversed the Ninth Court of Circuit Apache Arizona San Carlos Appeals. Tribe (1983), 463 545,103 U.S. S.Ct. 77 L.Ed.2d States 837. United Supreme Court stated: the extent that a jurisdiction claimed bar to state
“[T]o these premised cases is respective on the state Constitu- tions, that question a of state law over which the state authority. courts have binding of Because each these cases, the state courts have the In- jurisdiction taken over here, dian at assume, issue we until in- must otherwise, formed that at is con- least insofar as state law Carlos, San cerned such U.S. at exists.” __77 L.Ed.2d at the state have the In- proceedings jurisdiction over
“[I]f here, case, dian water at appears issue to be the then proceedings likely dupli- concurrent federal are to be wasteful, cative generating litigation ‘additional through permitting dispositions property’ of inconsistent River, Colorado 1237,]. 424 U.S. at S.Ct. at More- [96 over, ordinarily since a be judgment by either court will res judicata other, pro- the existence such concurrent an un- ceedings potential spawning creates the serious seemly and see forum resolve destructive race to can - contrary spirit first race to the entire same issues least, say prejudicial, the McCarran Amendment and decision-making by either fo- possibility to the of reasoned at_, .” S.Ct. at 77 L.Ed.2d rum. . . 463 U.S. at 856. us, adju-
“. the state assuming . . the cases before adequate quantify the at issue dications are suits, the McCarran taking into account discussed, expertise have policies just Amendment we courts, machinery available to the state administrative suits, bias infancy general judicial the federal to the against piecemeal litigation, and convenience were cor- parties, we conclude that the District Courts must . .” . . 77 L.Ed.2d deferring rect in to the state at 858. deciding
Addressing propriety *10 the United States Su- rights proceeding, a state court preme Court stated: River, that in Colorado our emphasize,
“We also
as we did
by
way
substantive
law
changes
decision
no
judged.
in state
must be
rights
adjudications
Indian
water
courts,
courts,
much
have a solemn obli-
State
as federal
Moreover,
court deci-
gation
law.
state
follow federal
protected by
rights
sion
water
alleged
abridge
receive,
expect
if
for review
brought
federal
law
can
Court,
scrutiny
particularized
exacting
before
in safe-
powerful
interest
commensurate with the
463 U.S.
from
encroachment.”
guarding
rights
those
state
3216,
_,
103 S.Ct. at
L.Ed.2d at
remand,
stayed all
ultimately
Court
On
the Ninth Circuit
pending
the federal actions
Cheyenne
Northern
proceedings.
outcome
state court
(9th
1983),
The
Tribe Adsit
porting Application for Supervisory Control “Supreme Court’s in San decision Carlos was the culmina- tion nine-year of a battle Montana authorities to secure a state court forum for litigation of the critical water law issues which face people of this state.” If a state consti- impediment tutiоnal exists or the Water Use Act is not ade- quate to adjudicate those which were reserved treaty law, and federal then it would be a waste of time and expense for water claimants system and the court to allow state proceedings to appealable culminate in final decrees over the years next several before this Court considers the questions fundamental set forth in petition. the State’s the interest of protecting the claimants, of all including Indian claimants, reserved it is es- that, sential upon expiration of the Rights Reserved Water Compact negotiation deadline, Commission’s pro- statewide ceedings go forward without delay. unreasonable These fac- clearly tors indicate type urgency an or emergency which requires that this Court take jurisdiction.
In Montana Power, 41 St. Rep. we considered simi- lar issues in reaching a conclusion supervisory control accepted. would be emphasized There we that a factor to be considered is the importance statewide of the decision with profound its manner, far-reaching effects. a similar we conclude that the prompt determination of these funda- *11 questions mental with regard adjudica- Montana’s water tion proceedings profound have far-reaching and effects on all of the in the state of in Mоn- Montana. As Power, tana we conclude that the resolution of the issues in this cause profound will have a people effect on the Montana, State of delay that irreparable will result harm, and that assumption original jurisdiction now will 156
promote judicial economy. factors, taking that our
Based on all of these we conclude interests of all appropriate and the best right within Montana. claimants the State of
III. Attorney argued that Several of the Indian have tribes parties and General and the Water Court are not adverse recog- controversy not exist. We that as a result a live does parties opposing so that realignment nize the need for a may presented. properly views on the substantive issues be Carlos, San U.S--n. recognize We also that under 17, n. we S.Ct. n. L.Ed.2d at at 3213 granted parties as could have the tribes leave to intervene however, exigency of time proceeding; because it is not original proceeding, in this we have concluded naming we are advisable follow route. While opportunity to respondents, we them an grant tribes as also request dismissal. parties now as follows: designate
We GREELY, Attorney MONTANA, STATE OF rel. MIKE ex General, OF THE STATE MON- WATER COURT OF Petitioners, COURT, THAT TANA and THE JUDGES OF AMERICA, Individually and THE UNITED STATES OF Tribes, Trustee for of the hereinafter named each TRIBE, NATION, THE THE CROW BLACKFEET KOOTENAI THE CONFEDERATED SALISH AND RESERVATION, THE OF THE FLATHEAD TRIBES THE TRIBES OF GROS VENTRE AND ASSINIBOINE RESERVATIONS, PECK FORT AND FORT BELKNAP OF THE NORTHERN THE NORTHERN CHEYENNE RESERVATION, THE CHIP- CHEYENNE INDIAN BOY’S RES- THE PEWA-CREE INDIANS OF ROCKY CHIPPEWA ERVATION, MOUNTAIN TURTLE to land TRIBE, a Dakota Tribe with allotments North Montana, Respondents. State of
157 IV. parties desire
Following are the issues which we that brief and argue proceeding:
1. Is prohibited the Water Court of Montana from exercis- on ing jurisdiction over Indian reserved water based I Article of the or otherwise? 1972 Montana Constitution Act, 85, 2, 2. Is the Chapter Montana Water Use Title MCA, adequate adjudicate rights? Act, 2, MCA, Is 85, Chapter
3. the Water Use ade- Title held, quate adjudicate on reserved behalf, its own any agencies? the United States or of its
V. In view of the absence of court lower record contain- ing proof and parties contentions of the and in view of limited time allowed for set forth briefing, we some of contentions which have regard been made with to the so, expres- Water Use Act. In not in doing any way we are sing opinion an on the addi- merits of these contentions. tion, we any way are not in limiting contentions which may by any be party. made
(1) Use Beneficial use, State law defines specifies beneficial that a statement purpose claim, of the use shall included in be each requires each final decree state the purpose which the water in the 85-2- right included used. Sections 102(2), (e) 85-2-234(4) 85-2-224(1) (d), MCA. Section provides may MCA be appropriation right that an part upon abandoned based in non-use.
Federal consumptive cases indicate that a use is present required not right. to maintain an Indian (Winters the Winters Doctrine v. United State Under (1908), 564, 207, 340), 207 U.S. 28 S.Ct. 52 L.Ed. Supreme States repеatedly Court has concluded that may necessary be by implication, reserved “water is where fulfill very purposes for which a federal reservation 158 United State New Mexico (1978), U.S. 438
was created.” United 696, 702, 3012, 3014, 98 L.Ed.2d S.Ct. 57 States v. Adair (9th 1984), Cir. F.2d states right the full such a need not be measure of reserved (1963), Arizona v. immediately. exercised California 546, 600, 1468, 1498, U.S. 10 L.Ed.2d sub- S.Ct. with right stance held that reserved connection the water all “irrigate water to reservation was sufficient *13 practicably acreage the on the reservation.” irrigable Act The contention that the Water Use has been made in water sufficiently does not describe differences these purpose reserved for a federal tribаl and use. appropriation rights for beneficial (2) Diversion means of requires place
The Water Use Act the 85-2- specified diversion be in the final decree. Section 234(4) (g), MCA. valid required of in order to have a
Diversion
water is not
has
right.
The Ninth Circuit
treaty
further a
right
the
held that
to water reserved
non-con-
fishing
basically
is
hunting
purposes
tribe’s
from
tribe to divert water
sumptive and does not entitle the
purposes.
stream
other
the natural course of the
for
“[T]he
appropria-
other
right
prevent
entitlement consists of the
protected
below a
depleting
tors from
the stream’s waters
apply.”
non-consumptive
area
the
level
where
Fishing
Washington
Adair,
1411. Sеe
723 F.2d at
also
Ass’n
(1979,
658, 686, 99 S.Ct.
3074-
Vessel
443 U.S.
(“moderate
applied
standard
living”
The contention made that the Water is appropriative differences adequately address these rights. reserved
(3) Quantification Act Use shall Final decrees under Water existing water, each of and volume included amount rate law, 85-2-234(4) (b), Under state MCA. right. Section quantity dependent of is use upon water the beneficial 85-2-224(l)(c), is it claimed. Section MCA. Winters Doctrine and case contrast under the law, the measure reserved to the amount dependent Indian people upon purposes is for which the reservation was created.
The sufficiently contention is made the Act does not quаntification. address these differences in the method (4) Priority Date requires Water Use Act a statement of the date of
priority 85-2-234(4) right. (c), the claimed water Section MCA. The priority date upon is based “the approximate dates of first putting water to use beneficial for the various 85-2-224(1) (c) amounts and times” of claimed use. Section & (f), MCA. Winters noted, Doctrine,
As previously an In- under dian right generally has a date priority as of on date which the reservation was That created. date may in any way not relate to the was date first put Adair addition, beneficial use. substance holds that an aboriginal right not treaty, created but *14 continued right may existence of such a by be confirmed treaty. Aboriginal water rights carry are to a priority stated Adair, date of time F.2d immemorial. at 1414. The contention is made sufficiently that the Act does not address these pri- differences in the of determining method ority dates.
(5) Exclusive Method provides Water Use Act system designated a which is as the exclusive method appropriation for the of after water July 1973. Section MCA.
A question has been as in which In- raised to the manner dian claims for rights, reserved have not been water by compact, provi- resolved the should be treated view of sion that Indian given claims be similar to “shall treatment 85-2-803(3), to given all other Section MCA. filings.”
VI. issues, In the to this responding parties these none of to jurisdiс- to proceeding any factually-based challenge waive by of adequacy tion to the of a determination quan- may appeal water to courts. Parties choose actual adjudication rights by the Water tification present proceed- Court. This Court’s determination in the ing any will on factual issue such ruling not constitute appeal. an addition, recognizes
In the contention of several this States, acting of the tribes as trustee behalf, protect to fiduciary obligation their fulfill its cannot because asserting Government’s of interest other conflict may contradict rights, which conflict with and of that recognition tribes. by claimed the Indian contеntion, named the various specifically this Court has dispose question Indian as This should parties. tribes opportunity inadequate representation giving points present their own tribes to individual addition, any conten- we consider view to this Court. will adequate repre- presented regard tion this Court with States, acting as trus- United sentation of tribes tee on their behalf. all of the tribes recognizes
This that some or Court also parties may they should not be named contend that Should sovereign immunity. this based on their lawsuit appear- rather than prefer grounds tribe dismissal on those be Court, dismissal should a motion for ing before made to this Court.
VII. proceeding: in this This to be followed schedule рeti- all opinion, days of the date of thirty Within *15 of on each file serve briefs prepare, shall tioners respondents. named respon- sixty days opinion
2. Within of date of all this desiring dents so file serve their prepare, do shall petitioners. answering briefs on each of the named seventy-five opinion, 3. Within of of days the date this petitioners reply will their prepare, file and serve briefs. argument
4. This will set for oral Court the matter separate order.
VIII. In taking jurisdiction petition, of this this does not adversely negotiations desire to affect the Indian between tribes and the Rights Compact Nothing Water Commission. Opinion supersede shall be construed to affect or susрension proceedings contained section MCA, relating to reserved Indian rights during negotiation period pro- vided therein or during any legislative extension of such period.
MR. JUSTICES SHEA HARRISON and concur. SHEEHY, MR. JUSTICE specially concurring: I acceptance concur in the all of herein for expressed reasons Justice Weber. addition, Colorado River I would hold now that under District, Conservation supra, the Water Court of our state jurisdiction irrespective has provisions our state I constitution. am also now of the our opinion present that Water Act inadequate Use adjudicate reserved water rights, by treaty origination, aboriginal whether majority reasons stated in the I also opinion. feel the appropriation may inadequate doctrine be to adjudicate other rights. federal reserved my
I expressing opinions early am flag if process it adjudicatory desires to have an effective Montana, finally determine it must ac- take tion legislative session of 1985 to make curative *16 in to amendments to the Water Use Act. Failure act would, a of my opinion, jurisdiction session mean loss period legis- time as the the State Water Court for such important upon project itself to No more lature took it act. faces the or this state. HASWELL, dissenting:
MR. CHIEF JUSTICE acceptance jurisdic- original I dissent from this Court’s I this ac- extraоrdinary at this time. consider tion via writ premature Compact negotiations are tion until such time as concluded. may not vio- this time
While the Court’s intervention at law, of Montana’s spirit it violates the late the letter compacts for public to make “an effort to conclude policy between equitable of waters apportionment division and Indian tribes claim- people its and the several state and (section 85-2- within the state” ing rights reserved water 701, MCA) claiming non-Indian government and the federal (section 85-2-703, within this MCA). opinion is majority litigation spawned The despite protes- compact negotiations inimical successful The inherent coer- contrаry by majority. tations to the negotiating on contemporaneous litigation cive effect of cannot be posture parties Compact negotiations ignored. GULBRANDSON, dissenting:
MR. JUSTICE Justice of Mr. Chief foregoing I concur in the dissent Haswell. MORRISON, dissenting:
MR. JUSTICE that, my opinion, I for the reason respectfully dissent jurisdiction. have Court does not MCA, gen- “all suspends Section rights and federal erally Indian water adjudicate reserved agencies tribes and federal of those reserved statute, if sus- applicable, . .” This . negotiating which are assumes July majority until 1985. The pends proceedings here holding provisions of this stat- ute apply do not I “supervisory proceeding. to this control” disagree.
Thе majority opinion of joins this Court the United States party defendant. This is pursuant done to the McCar- Amendment, ran 43 U.S.C. section 666. That Amendment provides:
“(a) Consent is given join the United States as a de- (1) fendant suit for the adjudication to the use of .” water . . only way personam jurisdiction could have been ac-
quired over the pursuant United States is pro- to the above vision of the By McCarran Amendment. asserting jurisdic- *17 States, tion over the United the majority has conceded that this is a proceeding to adjudicate to the use of water. In so doing, specifically this Court has violated the provisions of section MCA.
Furthermore, supervisory action, this is a control not a de- clаratory judgment action. In asserting supervisory control over court, the water we part proceeding, become of that proceeding adjudicate water rights. 85-2-217, MCA, section was amended to substi
tute the word “proceedings” for the word “actions.” This further shows an part intent on the broaden suspension provisions of the statute. “The word ‘proceeding’ applies step to be taken a cause which is authorized law in order to enforce the rights of parties or effectuate proper conduct of it while court.” State ex rel. Bruce v. District Court of pending Second Judicial District (1905), 359, 362, 33 Mont. P. 642. The clearly amendment to the statute embraces petition supervisory control. In addition to the I foregoing, concur with the comments made the Chief Justice his dissent.