Salish and Kootenai Tribes v. Stults

• Citation: 59 P.3d 1093,2002 MT 280
• Decision Date: 06 December 2002
• Docket Number: No. 01-415.,01-415.
• Parties: THE CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE FLATHEAD RESERVATION, State of Montana, Petitioners, v. Jack STULTS, Administrator, Water Resources Division, Montana Department of Natural Resources and Conservation; Bud Clinch, Director, Montana Department of Natural Resources Conservation; Montana Department of Natural Resources and Conservation; Donald D. MacIntyre, Special Assistant Attorney General, Montana Department of Natural Resources and Conservation; Reginald C. Lang, Respondents.
• Court: Montana Supreme Court

59 P.3d 1093

2002 MT 280

THE CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE FLATHEAD RESERVATION, State of Montana, Petitioners, v. Jack STULTS, Administrator, Water Resources Division, Montana Department of Natural Resources and Conservation; Bud Clinch, Director, Montana Department of Natural Resources Conservation; Montana Department of Natural Resources and Conservation; Donald D. MacIntyre, Special Assistant Attorney General, Montana Department of Natural Resources and Conservation; Reginald C. Lang, Respondents.

No. 01-415.

Supreme Court of Montana.

Argued and Submitted December 11, 2001.

Decided December 6, 2002.

James H. Goetz (argued), Goetz, Gallik, Baldwin & Dolan, PC, Bozeman, Montana, John B. Carter (argued), Daniel F. Decker, Confederated Salish and Kootenai Tribes, Pablo, Montana, For Petitioners.

Greg L. Ingraham (argued), Ingraham Law Firm, Ronan, Montana, Harley R. Harris (argued), Gary L. Davis, Candace Payne, Special Assistant Attorneys General, Luxan & Murfitt, PLLP, Helena, Montana, Hon. Mike McGrath, Attorney General; Candace West (argued), Assistant Attorney General, Helena, Montana, For Respondents.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Petitioners, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, have petitioned this Court to exercise original jurisdiction and enjoin the issuance of a Beneficial Water Use permit to Reginald C. Lang. The Tribes further request that we find the Department of Natural Resources and Conservation (DNRC) and the individual Respondents, Jack Stults, Bud Clinch and Donald MacIntyre, in contempt of a prior order of this Court. We permanently vacate the Final Order issued in In the Matter of the Application for Beneficial Water Use Permit 76-L109371 by Reginald C. Lang but decline to decide whether Respondents are in contempt of court.

¶ 2 The Tribes' Petition raises the following issues:

¶ 3 1. Is this an appropriate case in which to exercise original jurisdiction?

¶ 4 2. Should the Final Order authorizing issuance of a Beneficial Water Use permit to Lang be dissolved?

¶ 5 3. Should Respondents Stults, Clinch, the DNRC, and MacIntyre be held in contempt?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Respondent Reginald C. Lang purchased real property on the Flathead Reservation a few miles north of Hot Springs, Montana, where he intended to commercially bottle water. Lang applied for a Beneficial Water Use Permit on September 21, 1999. On January 10, 2000, the DNRC notified Lang that two objections had been filed. One of those was filed by the Confederated Salish and Kootenai Tribes, who objected on the basis that the DNRC did not have the jurisdiction to issue water use permits on the Reservation.

¶ 7 The DNRC held a hearing concerning Lang's application on September 7, 2000. The Tribes did not participate in that hearing. On May 8, 2001, Hearings Officer Charles Brasen issued the DNRC's Proposal for Decision. The Hearings Officer proposed that the DNRC grant Lang's permit application based on his conclusion that although our holding in Confederated Salish and Kootenai Tribes v. Clinch, 1999 MT 342, 297 Mont. 448, 992 P.2d 244, enjoined the DNRC from issuing permits on the Reservation until the Tribes' reserved water rights have been quantified, that holding did not apply to "a ground water source that is not hydrologically connected to the surface source." As a result, the Hearings Officer concluded that Lang met the statutory requirements for issuance of a beneficial water use permit codified at § 85-2-311, MCA. Nevertheless, the Hearings Officer concluded that the DNRC should not enter a final order in the matter until this Court dissolved or modified the holding of Clinch.

¶ 8 On or about May 11, 2001, the DNRC filed a "motion" with the Clinch caption in which it asked this Court, pursuant to Rule 22, M.R.App.P., to dissolve or modify our Order in Clinch. The DNRC contended that the injunctive relief granted in Clinch was overbroad because there is no precedent for the proposition that the Tribes have a reserved water right in groundwater. Further, the DNRC noted that Lang's application had been processed and that after a hearing, the Hearings Officer proposed that a permit be issued. The DNRC asked that the facts pertinent to the Lang application be reviewed pursuant to Rule 22, M.R.App.P., and that we modify our prior order to specify that it does not apply to groundwater. Finally, the attached affidavit of Administrator Jack Stults opined that the Clinch order enjoined only "the issuance" of beneficial use permits within the Flathead Reservation "but did not enjoin the processing of applications."

¶ 9 On May 31, 2001, this Court denied the DNRC's motion. We held that the motion procedure utilized by the DNRC was not appropriate and that resolution of DNRC's request that we revisit the Lang application was dependent on facts this Court was ill-equipped to develop.

¶ 10 Nevertheless, Stults issued a Final Order on Lang's application on June 7, 2001. The Final Order granted Lang's application by adopting the Findings of Fact and Conclusions of Law proposed by the hearing examiners with the exception of Conclusion of Law No. 2, which was revised to state as follows:

The Department made application to the Montana Supreme Court to dissolve or modify its injunction as it applies to the above-styled application. By order of May 31, 2001, the application was denied. However, the Supreme Court stated that the relief sought by the Department is dependent on facts which the Supreme Court is not well equipped to develop and that the issue would be more appropriately considered following a fully developed factual record. A factual record having been developed in this matter and to accord the parties their due process rights to appeal on the record, the final order in this matter may be entered.

¶ 11 The Tribes filed a Petition for Writ of Supervisory Control with this Court on June 18, 2001. The Tribes first requested that we suspend the Final Order authorizing issuance of a new water permit to Lang, and second that this Court find Respondents in contempt of court. On June 19, 2001, we stayed the DNRC's Final Order on Lang's application pending further order of this Court.

¶ 12 On July 11, 2001, Stults, Clinch and the DNRC moved to dismiss the contempt claim, as did Respondents MacIntyre, Hall, and Robinson on July 12, 2001. The Tribes later amended their Petition by dismissing Hall and Robinson as Respondents.

¶ 13 On August 1, 2001, the Respondents moved this Court to require mediation.

¶ 14 On August 14, 2001, we entered an Order which took the motion to dismiss, the contempt charge, and the motion to compel arbitration under advisement. We then deferred all pending motions until we addressed the merits of the Tribes' petition for original jurisdiction.

¶ 15 The DNRC and Lang then responded to the Petition and we held oral argument on November 13, 2001.

DISCUSSION

ISSUE 1

¶ 16 Is this an appropriate case in which to exercise original jurisdiction?

¶ 17 Exercise of original jurisdiction is provided for by Article VII, Section 2(1) of the Montana Constitution. The exercise of original jurisdiction is limited to those cases where the applicant demonstrates that:

(1) constitutional issues of major statewide importance are involved;

(2) the questions involved are purely legal questions of statutory or constitutional construction, and;

(3) urgency and emergency factors exist which make the normal appeal process inadequate.

Stuart v. Dept. of Social and Rehab. Services (1991), 247 Mont. 433, 439, 807 P.2d 710, 713.

¶ 18 The DNRC argues that the Tribes cannot satisfy the three-pronged test for original jurisdiction because factual issues remain that could be addressed through the normal trial and appeal process. Moreover, the DNRC contends that the issues raised by the current Petition are different than the issues raised in Clinch because no administrative proceedings were pending in that case. Lang additionally argues that the Tribes have failed to show that their reserved water rights would be affected and therefore cannot demonstrate that irreparable harm would result from the permit he was issued.

¶ 19 We conclude that this is an appropriate case in which to exercise original jurisdiction. Our reasons for accepting original jurisdiction in this matter are identical to the reasons for exercising original jurisdiction in Clinch. See Clinch, ¶ 9. The Petition implicates Article IX, Section 3(1) of the Montana Constitution; tribal water rights are of state-wide importance; the decisive issue in this case is purely legal or constitutional; and the normal litigation process is inadequate.

¶ 20 Those issues of fact which precluded consideration of the DNRC's May 11, 2001, motion to dissolve or modify our order in Clinch (i.e., whether groundwater is necessary for the purpose for which the reservation was established) are not presented in this case and, for reasons which should have been apparent from our prior decisions, cannot be decided other than by negotiation or general water rights adjudication. In contrast, the issues raised here are purely legal (i.e., whether permits of any kind can be issued prior to quantification of the Tribes' water rights). The normal litigation process is inadequate because Stults has already issued the Final Order authorizing a new water permit for Lang to the potential detriment of the Tribes' unquantified reserved water rights. Furthermore, as repeatedly pointed out by this and other courts, the Tribes need not participate in piecemeal agency proceedings to defend their reserved water rights.

ISSUE 2

¶ 21 Should the Final Order authorizing issuance of a Beneficial Water Use permit to Lang be vacated?

¶ 22 The Tribes urge us to give effect to our decisions in In the Matter of the Application for Beneficial Water Use Permit Nos. 66459-76L, Ciotti;...