Salish and Kootenai Tribes v. Clinch

• Decision Date: 30 December 1999
• Docket Number: No. 97-609.,97-609.
• Citation: 992 P.2d 244,1999 MT 342
• Parties: CONFEDERATED SALISH AND KOOTENAI TRIBES, Petitioners, v. Bud CLINCH, Director, Montana Department of Natural Resources and Conservation, and the State of Montana, Respondents.
• Court: Montana Supreme Court

992 P.2d 244

1999 MT 342

CONFEDERATED SALISH AND KOOTENAI TRIBES, Petitioners, v. Bud CLINCH, Director, Montana Department of Natural Resources and Conservation, and the State of Montana, Respondents.

No. 97-609.

Supreme Court of Montana.

Argued and Submitted January 7, 1999.

Decided December 30, 1999.

James H. Goetz (argued), Goetz, Madden & Dunn, P.C.; Bozeman, Montana; John B. Carter (argued), Confederated Salish & Kootenai Tribes; Pablo, Montana, For Petitioners.

Hon. Joseph P. Mazurek, Attorney General; Harley Harris (argued), Assistant Attorney General; Helena, Montana; Donald MacIntyre (argued), Department of Natural

Resources and Conservation; Helena, Montana, For Respondents.

Jon Metropoulos, Gough, Shanahan, Johnson & Waterman, Helena, Montana; Steve Kelly, Northern Cheyenne Tribe, Lame Deer, Montana; Lois J. Schiffer, Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Holly Jo Franz, Gough, Shanahan, Johnson & Waterman, Helena, Montana; John E. Bloomquist, Attorney at Law, Helena, Montana; Jeanne S. Whiteing, Whiteing & Smith, Boulder, Colorado, and James Raymond, City Attorney, Polson, Montana, For Amici.

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

¶ 1 The Petitioner, Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation have petitioned this Court to accept original jurisdiction and issue an order or other appropriate writ enjoining the Respondents, Montana Department of Natural Resources and Conservation and Bud Clinch, its director, from issuing water use permits on the Flathead Indian Reservation until such time as the tribe's water rights have been quantified. We accept jurisdiction and grant the relief requested.

¶ 2 In its petition, the Tribes contend that following our decision in In the Matter of the Application for Beneficial Water Use Permit Nos. 66459-76L, Ciotti; 64988-G76L, Starner; and Application for Change of Appropriation Water Right No. G15152-S76L, Pope (1996), 278 Mont. 50, 923 P.2d 1073, which held that water use permits could not be issued on the reservation until the Tribes' reserved water rights had been quantified based on the terms of § 85-2-311(1)(e), MCA, the legislature passed and the governor signed, S.B. 97 which amended the relevant provision in § 85-2-311(1)(e), MCA, for the specific purpose of avoiding the result created by the Ciotti decision.

¶ 3 The Tribes contend that the enactment of S.B. 97 violates Article IX, Section 3(1) of the Montana Constitution, which protects existing water rights, and prior decisions of this Court discussing the pervasive nature of the Tribes' water rights on the reservation.

¶ 4 The Tribes' petition presents two issues:

1. Whether this is an appropriate case in which to exercise original jurisdiction?

2. Whether the Department should be enjoined from issuing further water use permits on the Flathead Reservation until the Tribes' rights are quantified?

ISSUE 1

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

¶ 6 Exercise of original jurisdiction is provided for by Article VII, Section 2(1) of the Montana Constitution. However, we have previously held that we will not exercise original jurisdiction unless the applicant demonstrates that:

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

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

(3) where, urgency and emergency factors exist making the normal appeal process inadequate.

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

¶ 7 We have also held that this Court may issue declaratory judgments pursuant to the same constitutional authority. See Grossman v. State Dep't of Natural Resources (1984), 209 Mont. 427, 435, 682 P.2d 1319, 1323.

¶ 8 The State of Montana on behalf of the Department contends that this is not an appropriate case for the exercise of original jurisdiction because a factual record is necessary in order to determine whether the Tribes' rights have been affected and the trial and appeal process is adequate for development of the factual and legal issues presented by the Tribes' petition.

¶ 9 We conclude that this is an appropriate case in which to exercise original jurisdiction and entertain the Tribes' petition. The petition implicates Article IX, Section 3(1) of the Montana Constitution; tribal water rights are of statewide importance; the decisive issue in this case is purely legal or constitutional; and the normal litigation process is inadequate. To proceed through the trial courts could take years. During that time, any number of permits could be issued and water appropriated pursuant to those permits, when in fact we conclude that it is unlawful to do so.

ISSUE 2

¶ 10 Should the Department be enjoined from issuing further water use permits on the Flathead Reservation until the Tribes' rights are quantified?

¶ 11 In the Matter of the Application for Beneficial Water Use Permit Nos. 66459-76L, Ciotti; 64988-G76L, Starner; and Application for Change of Appropriation Water Right No. G15152-S76L, Pope (1996), 278 Mont. 50, 923 P.2d 1073, we were asked to decide whether the Department had authority to grant new water use permits on the Flathead Indian Reservation prior to settlement or adjudication of the Tribes' water rights. We noted that the requirements for issuance of water use permits was set forth at § 85-2-311(1), MCA, and that subsection (e) of that statute required that an applicant demonstrate that:

The proposed use will not interfere unreasonably with other planned uses or developments for which a permit has been issued or for which water has been reserved....

Ciotti, 278 Mont. at 55, 923 P.2d at 1076.

¶ 12 We explained that there is a difference between State appropriated water rights and Indian reserved water rights and to illustrate, pointed out that:

In State ex rel. Greely v. Confederated Salish and Kootenai Tribes of the Flathead Reservation (1985), 219 Mont. 76, 89-90, 712 P.2d 754, 762, we noted that:

State appropriative water rights and Indian reserved water rights differ in origin and definition. State-created water rights are defined and governed by state law. Indian reserved water rights are created or recognized by federal treaty, federal statutes or executive order and are governed by federal law.

....

Appropriative rights are based on actual use. Appropriation for beneficial use is governed by state law. Reserved water rights are established by reference to the purposes of the reservation rather than to actual, present use of the water.

(Citations omitted.)

We also distinguished reserved rights on the basis that they need not be diverted from the stream when we observed that:

The right to water reserved to preserve tribal hunting and fishing rights is unusual in that it is non-consumptive. A reserved right for hunting and fishing purposes "consists of the right to prevent other appropriators from depleting the stream waters below a protected level in any area where the non-consumptive right applies." [United States v.] Adair [(9th Cir.1983)], 723 F.2d [1394,] 1411 [cert. denied, 467 U.S. 1252, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984) ].

The Supreme Court has also held that under the implied-reservation-of-water-rights doctrine, Indians are entitled to sufficient water "to develop, preserve, produce or sustain food and other resources of the reservation, to make it livable." Arizona v. California [(1963)], 373 U.S. [546,] 599-600 [83 S.Ct. 1468, 1497-98, 10 L.Ed.2d 542].

....

The Winters Court held that reserved water on the Fort Belknap Reservation could be beneficially used for "acts of civilization" as well as for agricultural purposes. Winters v. [United States (1908)], 207 U.S. [564,] 576 [28 S.Ct. 207, 211, 52 L.Ed. 340]. It may be that such "acts of civilization" will include consumptive uses for industrial purposes. We have not found decisive federal cases on the extent of Indian water rights for uses classed as "acts of civilization."

It is clear, however, that Indian reserved water rights may include future uses. Arizona v. California, 373 U.S. at 600-01, 83 S.Ct. at 1498; United States v. Ahtanum Irrigation District (9th Cir.1964), 330 F.2d 897, 914. Most reservations have used only a fraction of their reserved water. National Water Commission, Water Policies for the Future 51-61 (1973). However, reserved rights may reflect future need as well as present use. For example, the "practically irrigable acreage" standard applies to future irrigation or reservation land, not present irrigation practices and current consumptive uses.

We explained that it is undisputed that the Tribes possess reserved water rights which the Tribes were then attempting to quantify through negotiations with the State of Montana pursuant to §§ 85-2-701 through -705, MCA and that "[u]ntil the formal negotiations are resolved, however, the extent of the Tribes' reserved water rights remains unknown. Although it is likely that the Tribes' rights are pervasive, reserved water rights are difficult to quantify." See Ciotti, 278 Mont. at 59, 923 P.2d at 1079.

¶ 13 We held that because the Water Use Act requires that an applicant for a water use permit prove that it will not unreasonably interfere with the Tribes' reserved water rights and because of the nature of Indian reserved water rights:

[S]uch a showing cannot be made until the Tribes' rights are quantified by a compact negotiation pursuant to § 85-2-702, MCA, or by a general inter sese water rights adjudication.

Ciotti, 278 Mont. at 61, 923 P.2d at 1080. Therefore, we held that the Department did not have authority to issue water use permits on the reservation until quantification is complete. Ciotti, 278 Mont. at 61, 923 P.2d at 1080.

¶ 14 In response to Ciotti, the legislature passed S.B. 97 which amended § 85-2-311, MCA, by eliminating the...