State ex rel. Greely v. Water Court of State of Mont., 84-333

• Decision Date: 14 January 1985
• Docket Number: No. 84-333,84-333
• Parties: STATE of Montana, ex rel., Mike GREELY, Attorney General, Petitioner, v. WATER COURT of the STATE of MONTANA, and the Hon. W.W. Lessley, Chief Water Judge, et al., Respondents.
• Court: Montana Supreme Court

Page 833

691 P.2d 833

214 Mont. 143

STATE of Montana, ex rel., Mike GREELY, Attorney General, Petitioner, v. WATER COURT of the STATE of MONTANA, and the Hon. W.W.

Lessley, Chief Water Judge, et al., Respondents.

No. 84-333.

Supreme Court of Montana.

Submitted Oct. 26, 1984.

Decided Dec. 18, 1984.

As Amended Jan. 14, 1985.

Mike Greely argued, Atty. Gen., Helena, Chris Tweeten argued, Asst. Atty. Gen., Helena, for petitioner.

Sarah Arnott argued, Bozeman, for respondents Hon. W.W. Lessley, Chief Water Judge, Hon. B.W. Thomas, District Judge, Hon. Robert M. Holter, District Judge and Hon. Roy C. Rodeghiero, District Judge.

James H. Goetz argued, Salish and Kootenai Tribes, Bozeman, Blake Watson argued, U.S. Dept. of Justices for Fed. Agencies, Washington, D.C., Daniel F. Decker, Pablo, Jeanne S. Whitening, Boulder, Colo., Robert S. Pelsyger, Boulder, Colo., Frances Lame Bull, Billings, Edward L. Meredith, Billings, Joseph R. Membrino, Washington, D.C., Joseph J. McKay, Browning, Reid Peyton, Washington, D.C., Philip E. Roy, Browning, Thomas E. Luebben, Albuquerque, N.M., Allen E. Rowland, Lame Deer, Norman Hollow, Poplar, Donald Stewart, Crow Agency, Joseph Felsman, Pablo, Earl Old Person, Browning, Franklin R. Perez, Harlem, John Windy Boy, Belcourt, N.D., William H. Veeder, Washington, D.C., for amicus curiae.

WEBER, Justice.

The Attorney General for the State of Montana, pursuant to Rule 17, M.R.App.Civ.P., has petitioned this Court for an exercise of its supervisory power over the Water Court of the State of Montana and the judges of that court, in their conduct of the litigation commenced in this Court pursuant to section 85-2-211, MCA, under cause no. 14833. The questions as presented in that application were:

1. Notwithstanding the so-called "disclaimer clause" in Article I of the Montana Constitution, does the Montana Water Court have jurisdiction, as a matter of state law, to adjudicate federal reserved water rights held by the United States in trust for Indians and Indian tribes in the State of Montana?

2. Is the water adjudication process provided in the Montana Water Use Act, Title 85, Chapter 2, MCA, legally adequate to adjudicate federal reserve water rights held by the United States in trust for Indians and Indian tribes in the State of Montana?

The Attorney General requested an ex parte opportunity to present oral argument on our acceptance of original jurisdiction. Such oral argument was presented before this Court by the Attorney General and by the attorney for the Confederated Salish and Kootenai Tribes, who requested leave to intervene as amicus curiae. This Court then ordered a briefing schedule granting to the respondent Water Court time in which to file a brief. Each and every Indian tribe in the State of Montana, the United States Attorney General, the United States Attorney for Montana, and the United States Department of Justice were also invited to file briefs as amici curiae. The Attorney General was directed to serve a true copy of his petition, the brief in support thereof, and a copy of the Court's Order on the United States Attorney General, the United States Attorney for Montana, the United States Department of Justice, and all Indian tribes in Montana. On October 29, 1984, the matter was orally argued before this Court sitting en banc.

We have concluded that this Court will accept jurisdiction of the petition for writ of supervisory control of the Water Court.

I.

Is this Court barred from taking jurisdiction by Sec. 85-2-217, MCA, which provides that all proceedings to generally adjudicate reserved Indian water rights and federal reserved water rights are suspended while the tribes are negotiating?

In 1973, the Montana legislature passed the Water Use Act to administer, control and regulate all water rights within the State of Montana and to establish a system of centralized records of all such rights. Section 85-2-101(2), MCA. The Act declared all waters within the state to be the property of the state and subject to appropriation for beneficial uses. Section 85-2-101(1), MCA. The Act defined state policy regarding Montana's water resources as follows:

"It is the policy of this state and a purpose of this chapter to encourage the wise use of the state's water resources by making them available for appropriation consistent with this chapter and to provide for the wise utilization, development, and conservation of the waters of the state for the maximum benefit of its people with the least possible degradation of the natural aquatic ecosystems...." Section 85-2-101(3), MCA.

In 1979, the Water Use Act was amended to specify that federal and Indian reserved water rights are included in the proceedings for the general adjudication of existing water rights, either as claims or by compact. The general intent of the legislature regarding Indian reserved water rights is set forth in Sec. 85-2-701, MCA:

"Legislative Intent. Because the water and water rights within each water division are interrelated, it is the intent of the legislature to conduct unified proceedings for the general adjudication of existing water rights under the Montana Water Use Act. Therefore, it is the intent of the legislature that the attorney general's petition required in 85-2-211 include all claimants of reserved Indian water rights as necessary and indispensable parties under authority granted the state by 43 U.S.C. 666. However, it is further intended that the state of Montana proceed under the provisions of this part in an effort to conclude compacts for the equitable division and apportionment of waters between the state and its people and the several Indian tribes claiming reserved water rights within the state."

At the same time that Part 7 (Indian and Federal Water Rights) was added to Title 85, Chapter 2, the Act was also amended to direct the Attorney General to begin the statewide proceedings as follows:

"Petition by attorney general. Within 20 days after May 11, 1979, the state of Montana upon relation of the attorney general shall petition the Montana supreme court to require all persons claiming a right within a water division to file a claim of the right as provided in 85-2-221." Section 85-2-211, MCA.

Pursuant to this section, the Attorney General petitioned this Court in cause no. 14833. The petition sought an order directed to all claimants of water rights, including Indian reserved water rights (Sec. 85-2-701, MCA) and this Court issued such an order (Sec. 85-2-212, MCA) in 1979. That Order required every person, including but not limited to an individual, partnership, association, public or private corporation, city or other municipality, county, state agency of the state of Montana and federal agency of the United States of America on its own behalf or as trustee for any Indian or Indian tribe, to file a statement of claim to an existing right arising prior to July 1, 1973.

Negotiations between the Montana Reserved Water Rights Compact Commission and several tribes were also commenced in 1979. See Secs. 2-15-212, 85-2-701 & -702. We are advised that such negotiations are currently continuing between the Compact Commission and all but one Montana Indian tribe. Because such negotiations are now in progress, the question has been raised whether this Court's assumption of original jurisdiction violates the wording or intent of Sec. 85-2-217, MCA, which provides:

"While negotiations for the conclusion of a compact under part 7 are being pursued, all proceedings to generally adjudicate reserved Indian water rights and federal reserved water rights of those tribes and federal agencies which are negotiating are suspended. The obligation to file water rights claims for those reserved rights is also suspended. This suspension shall be effective until July 1, 1985, as long as negotiations are continuing or ratification of a completed compact is being sought. If approval by the state legislature and tribes or federal agencies has not been accomplished by July 1, 1985, this suspension shall terminate on that date. Upon termination of the supervision of this part, the tribes and the federal agencies shall be subject to the special filing requirements of 85-2-702(3) and all other requirements of the state water adjudication system provided for in Title 85, Chapter 2. Those tribes and federal agencies that choose not to negotiate their reserved water rights shall be subject to the full operation of the state adjudication system and may not benefit from the suspension provisions of this section."

Is the present request for supervisory control prohibited as a proceeding to generally adjudicate reserved Indian water rights? While not all members of this Court so agree, we conclude that this proceeding does not fall within the prohibitions of Sec. 85-2-217, MCA.

The underlying action is cause no. 14833, an action for the adjudication of all existing water rights which was commenced in 1979 with the issuance of this Court's order. See Sec. 85-2-214(1), MCA. The petition before us now requests that we exercise our powers of supervisory control over the Water Court, which administers the Water Use Act. Our supervisory control is directed toward that existing action and does not constitute a proceeding, "to generally adjudicate reserved Indian water rights." Section 85- 2-217, MCA clearly prohibits such a proceeding while compact negotiations or ratification is continuing. This proceeding will not generally adjudicate any Indian reserved water right or any federal reserved water right, either as a whole or in part.

The petition for supervisory control asks this Court to define the scope of the State's jurisdiction over Indian reserved water rights and presents the preliminary question of whether the Water Court can conduct unified proceedings for the general adjudication of all existing water rights in Montana in the absence of a compact negotiation suspension. The issues before us...