IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, ex rel. 

MIKE GREELY, Attorney General, 

Relator, 

WATER COURT OF THE STATE OF 

MONTANA, and the Honorable W. W. 

Lessley, Chief Water Judge, et al., 

Respondents. F 

PER CURIAM: 

On December 18, 1985, this Court entered its Opinion in 

this cause. It has since been discovered that two clerical 

errors appear therein. 

IT IS HEREBY ORDERED that the Opinion of this Court in 

this cause dated December 18, 1984, is amended a.s follows: 

On page 4, line 2, the citation to "§ 83-2-701, MCA" is 

deleted and "5 85-2-701, MCA" is substituted therefor. 

On page 17, second paragraph under subsection (5) , the 

citation "S 85-2-803 (3), MCA" is deleted and "S 85-2-702 (31, 

MCA" is substituted therefor. 

The Clerk is directed to mail a true copy hereof to 

counsel of record for all pa.rties. 

DATED this /./ gday of January, 1985. 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, ex rel., 

MIKE GREELY, Attorney General, 

Petitioner, 

VS. 

WATER COURT OF THE STATE OF MONTANA, 

and the HON. W. W. LESSLEY, Chief Water Judge, et al., 

Respondents. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Petitioner: 

Hon. Mike Greely argued, Attorney General, Helena, 

Montana 

Chris Tweeten argued, Assistant Attorney General, 

Helena,, Montana 

For Respondents : 

Sarah Arnott argued, Bozeman, Montana 

Hon. W. W. Lessley, Chief Water Judge, Bozeman, Montana 

Hon. B. W. Thomas, District Judge, Chinook, Montana 

Hon. Robert M. Holter, District Judge, Libby, Montana 

Hon. Roy C. Rodeghiero, District Judge, Roundup, Montana 

For Amicus Curiae: 

James H. Goetz argued, Salish and Kootenai Tribes, 

Bozeman, Montana 

Blake Watson argued, U.S. Dept. of Justices for Fed. 

Agencies, Washington, D. C. 

Daniel F. Decker, Pablo, Montana 

Jeanne S. Whitening, Boulder, Colorado 

Robert S. Pelsyger, Boulder, Colorado 

Frances Lame Bull, Billings, Montana 

Edward L. Meredith, Billings, Montana 

Joseph R. Membrino, Washington, D. C. 

Joseph J. McKay, Browning, Montana 

Reid Peyton, Washington, D. C. 

Philip E. Roy, Browning, Montana 

Thomas E. Luebben, Albuquerque, New Mexico 

Allen E. Rowland, Lame Deer, Montana 

Norman Hollow, Poplar, Montana 
AMICUS CURIAE CONTINUED: 

Donald Stewart, Crow Agency, Montana 

Joseph Felsman, Pablo, Montana 

Earl Old Person, Browning, Montana 

Franklin R. Perez, Harlem, Montana 

John Windy Boy, Belcourt, North Dakota 

William H. Veeder, Washington, D. C. 

submitted: October 26, 1984 

~~~id~d: December 18, 1984 

Filed: . . , td$4 LV 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

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 Elontana 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 reserved 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 fi1.e a brief. Each and every Indian tribe in the 

State of Elontana, 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 s~~pport 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. 

Is this Court barred from taking jurisdiction by § 

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 (I), 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 wa.s 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 § 83-2-701, MCA: 

"Legislative Intent. Because the water and water 

riqhts 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 tha.t 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 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, includ-ing Indian 

reserved water rights (S 85-2-701, MCk) and this Court issued 

such an order (§ 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 

Corn-pact Commission and several tribes were also commenced in 

1979. See s§ 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 S 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 adjud.ication system and may 

not benefit from the suspension provisions of this 

section. I' 

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 5 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 ~85-2-214 (I), 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, 

KCA clearly prohibits such a proceeding while compact 

negotiations or ratification is continuing. This proceeding 

wi.11 not generally adjud.icate 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 pre1imina.r~ question 

of whether the Wa.ter 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 are limited to a determination of the 

effect of our constitutional disclaimer on subject matter 

jurisdiction by the Water Court and whether the Water Use Act 

is adequate to adjudicate 1ndia.n reserved water rights. 

These questions should be determined before any further steps 

are taken to generally adjudicate Indian reserved rights. 

We hold that the suspension provision of S- 85-2-217, MCA 

does not prohibit our taking jurisdiction in this cause. 

What is the basis for this Court's assuming original 

jurisdiction of this petition for supervisory control? 

In two recent cases, we have discussed at some length 

the reasons for our exercise of original jurisdiction. 

Grossman v. State, Dept. of Natural Resources (Mont. 1984) , 

682 P.2d 1319, 41 St.Rep. 804 (declaratory judgment proceeding) ; Montana Power Company v. Public Service Commission 

(Mont. 1984), P.2d , 41 St.Rep. 1601 (request for 

supervisory control). 
While Grossman is a declaratory judgment proceeding and 

the present proceeding is for supervisory control, the factors considered in taking of original jurisdiction are relevant and worthy of discussion here: 

1. Grossman was recognized as a test case designed to 

obtain a final judgment on the constitutional. validity of 

coal severance tax revenue bonds. In a compara.ble manner, 

the present application is designed to obtain a final judgment on the constitutional validity of the Water Use Act in 

view of the disclaimer clause contained in Art. I, Mont. 

Const. 1972. Both are legal questions presented for the 

first time in the proceedings before this Court. 

2. Grossman sought this Court's interpretation of pure 

legal questions of statutory and constitutional construction. 

In a similar manner, the present petition seeks answers to 

pure legal questions of both constitutional and statutory 

construction of the disclaimer clause contained in Art. I, 

Mont. Const. and the Water Use Act in relation to Indian 

water rights. 

3. In Grossman we concluded that urgency and emergency 

factors argued for acceptance of origin.al jurisdiction. 

These factors included the inability of the state to issue 

proposed coal severance tax bonds until the issues raised 

were resolved by this Court. In a similar manner, until the 

issues here presented are resolved, the Water Court is unable 

to proceed with the general adjudication of water rights in 

Montana, including the water rights held by any Indian tribe 

or by the United Sta.tes in any of its capacities. The Water 

Court is organized and prepared to proceed with the adjudication process. That process requires preliminary decrees, 

hearings, proof, argument, and ultimately final decrees. 

Since there are thousands of water right cl-aimants in 
Montana, it would be singularly inappropriate to wait until 

that entire process is completed and until an appeal of a 

final decree is made to this Court, before this Court addresses the threshold issues that are presented in the petition for supervisory control. These issues have been 

reserved by the federal courts for state court determination. 

See Arizona v. San Carlos Apache Tribe (1983), U.S. 

, 103 S.Ct. 3201, 77 L.Ed.2d 837, 852; Northern Cheyenne 

Tribe v. Adsit (9th Cir. 1983), 721 F.2d 1187, 1188. If we 

wait until the appeal of final decrees, a great deal of time 

and expense could be wasted. These factors of time and cost 

demonstrate an urgency for prompt determination by this 

Court. 

4. In Grossman, we reasoned that it was appropriate to 

accept jurisdiction in order that legislative correction 

could be made in the Bond Act should that be necessary. 

Similarly if the Water Use Act is not adequate to protect and 

adjudicate Indian reserved water rights, held by Indian 

tribes pursuant to treaties or executive order, then it is 

important to reach that determination at an early date in 

order to allow the legislature an opportunity to correct the 

Act. 

In considering these factors, a brief review of the 

history of water rights litigation in Montana is appropriate. 

Montana's Water Use Act was enacted in 1973; however, statewide adjudicatory proceedings did not commence until after 

the Act was amended in 1979. Prior to that time, the Northern Cheyenne Tribe had brought an action in the United States 

District Court in Montana in January 1975 seeking an adjudication of its rights in certain Montana streams. Shortly 

thereafter, the United States brought two suits in the same 

court, seeking a determination of the water rights on its own 
behalf and of a number of Indian tribes, including the Northern Cheyenne. The Northern Cheyenne's action was consolidated with one of the Government's actions. Other concerned 

tribes intervened. Each of the federal actions was a. general 

adjudication which sought to determine the rights inter sese 

of all users of the streams at issue. 

While this activity was taking place in the federal 

forum, the State of Montana was proceeding under the Water 

Use Act, as originally enacted. In July 1975, the Montana 

Department of Natural Resources and Conservation filed petitions in state court commencing comprehensive proceedings to 

adjudicate water rights in the same streams at issue in the 

federal cases. 

The federal actions were stayed in Montana pending the 

United States Supreme Court's decision in Colorado River 

Conservation District v. United States (1976), 424 U.S. 800, 

96 S.Ct. 1236, 47 L.Ed.2d 483. That case held that (1) the 

McCarran Amendment (43 U.S.C. 5 666), which waived the sovereign immunity of the United States as to comprehensive state 

water rights adjudications, provides state courts with jurisdiction to adjudicate Indian water rights he1.d in trust by 

the United States, and (2) in light of the clear federal 

policies underlying the McCarran Amendment, a water rights 

suit brought by the United States in federal court was properly dismissed in favor of a concurrent comprehensive adjudication reaching the same issues in Colorado state court. 

When the Colorado River decision came down, the State of 

Montana filed a motion to dismiss the federal suits. Although the motion was argued in 1976, it was not decided 

until 1979. 

In April 1979, the United States filed four more suits 

federal court seeking adjudicate its rights the 
rights of various Indian tribes in other P-lontana streams. In 

November 1979, federal Judges Battin and Hatfield consolidated the cases pending before various divisions of the United 

States District Court and dismissed each of the federal 

actions. Northern Cheyenne Tribe v. Tongue River Water Users 

(D.C. Mont. 1979), 484 F.Supp. 31. 

In the meantime, the Montana Supreme Court extended the 

deadline for filing claims of existing water rights under the 

Water Use Act from January 1, 1982, to April 30, 1982. See, 

In re Water Rights Order (1979), 36 St.Rep. 1228; Supreme 

Court Order 14833 (Dec. 7, 1981). The legislature had treated the Montana Reserved Water Rights Compact Commission by 

that time as well. Section 2-15-212, MCA (1979). 

On appeal, the Ninth Circuit Court of Appeals reversed 

the district courts' dismissal of the federal cases. Northern Cheyenne Tribe v. Adsit (9th Cir. 1982), 668 F.2d 1080. 

The Court of Appeals held that (1) FJhen a state has chosen to 

disclaim subject matter jurisdiction over Indian lands, as 

Montana did in Art. I, Mont. Const. 1972, state court jurisdiction to adjudicate Indian water rights is lacking absent 3. 

valid repeal of the disclaimer; and (2) the United States 

Supreme Court's decision in Colorado River, 424 U.S. 800, was 

not applicable to the Montana litigation because of Colorado 

River's "limited factual circumstance," the infancy of both 

federal and state proceedings in Montana, the possible inadequacy of the state proceedings, and the fact that the Indians 

might not be adequately represented by the United States in 

state court in light of conflicts of interest between the 

Federal Government's responsibilities as trustee and its own 

claims to water. 

In turn, that decision was appealed to the United States 

Supreme Court, which reversed the Ninth Circuit Court of 
Appeals. Arizona v. San Carlos ~ppache ~ribe (1983)~ 

U.S. , 103 S.Ct. 3201, 77 L.Ed.2d 837. The United States 

Supreme Court stated: 

"[Tlo the extent that a claimed bar to state jurisdiction in these cases is premised on the respective state Constitutions, that is a question of 

state law over which the state courts have binding 

authority. Because in each of these cases, the 

state courts have taken jurisdiction over the 

Indian water rights at issue here, we must assume, 

until informed otherwise, that at least insofar as 

state law is concerned such jurisdiction exists." 

San Carlos, 77 L.Ed.2d at 852. 

" [I] f the state proceedings have jurisdiction over 

the Indian water rights at issue here, as appears 

to be the case, then concurrent federal proceedings 

are likely to be duplicative and wasteful, generating 'additional litigation through permitting 

inconsistent dispositions of property' Colorado 

River, 424 U.S. at 819. Moreover, since a judgment 

by either court will ordinarily be res judicata in 

the other, the existence of such concurrent proceedings creates the serious potential for spawning 

an unseemly and destructive race to see which forum 

can resolve the same issues first - a race contrary 

to the entire spirit of the McCarran Amendment and 

prejudicial, to say the least, to the possibility 

of reasoned decision making by either forum. . . ." 

77 L.Ed.2d at 856. 

". . . In the cases before us, assuming that the 

state adjudications are adequate to quantify the 

rights at issue in the federal suits, and taking 

into account the McCarran Amendment policies we 

have just discussed, the expertise and administrative machinery available to the state courts, the 

infancy of the federal suits, the general judicial 

bias against piecemeal litigation, and the convenience to the parties, we must conclude that the 

District Courts were correct in deferring to the 

state proceedings. . . ." 77 L.Ed.2d at 858. 

Addressing the propriety of deciding Indian reserved water 

rights in a state court proceeding, the United States Supreme 

Court stated: 

"We also emphasize, as we did in Colorado River, 

that our decision in no way changes the substantive 

Law by which Indian rights7in state water adjudications must be judged. State courts, as much as 

federal courts, have a solemn obligation to follow 

federal law. Moreover, any state court decision 

alleged to abridge Indian water rights protected by 

federal law can expect to receive, if brought for 

review before this Court, a particularized and 

exacting scrutiny commensurate with the powerful 

federal interest in safeguarding those rights from 

state encroachment." 77 L.Ed.2d at 859. 
On remand, the Ninth Circuit Court ultimately stayed all 

proceedings in the federal actions in Montana pending the 

outcome of state court proceedings. Northern Cheyenne Tribe 

v. Adsit (9th Cir. 1983), 721 F.2d 1.187. The Court reserved 

two questions for state court determination.: (1) the question of jurisdiction under state law, and (2) the question of 

the adequacy of the particular state proceeding to adjudicate 

the reserved water rights. Adsit, 721 F.2d at 1188. These 

were the same two questions which the Supreme Court Left open 

for consideration on remand in San Carlos, 77 L.Ed.2d at 858, 

n. 20. 

The Attorney General states in his Memorandum Supporting 

the Application for Supervisory Control that the "Supreme 

Court's decision in San Carlos was the culmination of a 

nine-year battle by Montana authorities to secure a state 

court forum for litigation of the critical water law issues 

which face the people of this state." If a state constitutional impediment exists or the Water Use Act is not adequate 

to adjudicate those rights which were reserved by treaty and 

federal law, then it would be a waste of time and expense 

for water claimants and the court system to allow state 

proceedings to culminate in appealable final decrees over the 

next several years before this Court considers the fundamental questions set forth in the State's petition. In the 

interest of protecting the water rights of all claimants, 

including Indian reserved water right claimants, it is essential that, upon expiration of the R.eserved Water Rights 

Compact Commission's negotiation deadline, statewide proceedings go forward without unreasonable delay. These factors 

clearly indicate the type of an urgency or emergency which 

requires that this Court take jurisdiction. 
In Montana Power, 41 St.Kep. 1601, we considered similar 

issues in reaching a conclusion that supervisory control 

would be accepted. There we emphasized that a factor to be 

considered i.s the statewide importance of the decision with 

its profound and far-reaching effects. In a similar manner, 

we conclude that the prompt determination of these fundamental questions with regard to P40ntana1s water adjudication 

proceedings have profound and far-reaching effects on all of 

the water rights in the state of Montana. As in 

Montana Power, we conclude that the resolution of the issues 

in this cause will have a profound effect on the people of 

the State of Montana, that delay will result in irreparable 

harm, and that assumption of original jurisdiction now will 

promote judicial economy. 

Based on all of these factors, we conclude that our 

taking jurisdiction is appropriate and in the best interests 

of all water right claimants within the State of Montana. 

111. 

Several of the Indian tribes have argued that the Attorney General and the Water Court are not adverse parties and 

that as a result a live controversy does not exist. We 

recognize the need for a realignment of parties so that 

opposing views on the substantive issues may be properly 

presented. We also recognize that under San Carlos, 77 

L.Ed.2d at 856, n. 17, we could have granted the tribes leave 

to intervene as parties in this proceeding; however, because 

of the exigency of time in this original proceeding, we have 

concluded that it is not advisable to follow that route. 

While we are naming the tribes as respondents, we also grant 

them an opportunity to request dismissal. 

We now designate the parties as follows: 

STATE OF MONTANA, ex rel. 
MIKE GREELEY, Attorney General, 

WATER COURT OF THE STATE OF 

MONTANA and THE JUDGES OF THAT 

COURT, 

Petitioners, 

THE UNITED STATES OF AMERICA, 

Individually and as Trustee for 

each of the hereinafter named Indian 

Tribes, and THE BLACKFEET NATION, THE CROW 

TRIBE, THE CONFEDERATED SALISH AND 

KOOTENAI TRIBES OF THE FLATHEAD RESERVATION, 

THE GROS VENTRE AND ASSINIBOINE TRIBES OF 

THE FORT BELKNAP AND FORT PECK RESERVATIONS, 

THE NORTHERN CHEYENNE OF THE NORTHERN CHEYENNE 

INDIAN RESERVATION, and THE CHIPPEWA-CREE 

INDIANS OF THE ROCKY BOY'S RESERVATION, and 

the TURTLE MOUNTAIN CHIPPEWA TRIBE, a North 

Dakota Tribe with allotments to land in the 

State of Montana, 

Respondents. 

IV. 

Following are the issues which we desire that the pa.rties brief and argue in this proceeding: 

1. Is the Water Court of Montana prohibited from exercising jurisdiction over Indian reserved water rights based 

on Article I of the 1972 Montana Constitution or otherwise? 

2. Is the Montana Water Use Act, Title 85, Chapter 2, 

EICA, adequate to adjudicate Indian reserved water rights? 

3. Is the Water IJse Act, Title 85, Chapter 2, MCA, 

adequate to adjudicate federal reserved water rights held, on 

its own behalf, by the United States or any of its agencies? 

In view of the absence of any lower court record containing proof and contentions of the parties and in view of 

the limited time allowed for briefing, we set forth some of 

the contentions which have been made with regard to the Water 

Use Act. In doing so, we are not in any way expressing an 

opinion on the merits of these contentions. In addition, we 

are not in any way limiting the contentions which may be made 

by any party. 
(1) Beneficial Use 

State law defines beneficial. use, specifies that a 

statement of the purpose of the use shall be included in each 

claim, a.~d requires each final decree to state the purpose 

for which the water included in the right is used. Sections 

85-2-102 (2), 85-2-224 (1) (e) and 85-2-234 (4) (d) , MCA. Section 

85-2-404, MCA provides that an appropriation right may be 

abandoned based in part upon non-use. 

Federal cases indicate that a present consumptive use is 

not required to maintain an Indian reserved water right. 

Under the Winters Doctrine (Winters v. United States (1908) , 

207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340), the United States 

Supreme Court has repeatedly concluded that water may be 

reserved by implication, where "water is necessary to fulfill 

the very purposes for which a federal reservation was treated." United State v. New Mexico (1978), 438 U.S. 696, 702, 

98 S.Ct. 3012, 3014, 57 L.Ed.?d 1052. United States v. Adair 

(9th Cir. 1984), 723 F.2d 1394, 1416, states that the full 

measure of such a reserved right need not be exercised immediately. Arizona v. California (1963), 373 U.S. 546, 600, 83 

S.Ct. 1468, 1498, 10 L.Ed.2d 542, in substance held that the 

water right reserved in connection with that Indian reservation was sufficient. water to "irrigate all the practicably 

irrigable acreage on the reservation." 

The contention has been made that the Water Use Act does 

not sufficiently describe these differences in water rights 

reserved for a federal or tribal purpose and Montana appropriation rights for a beneficial use. 

(2) Diversion 

The Water Use Act requires that the place and means of 

diversion be specified in the final decree. Section 

85-2-234 (4) (g) , MCA. 
Diversion of water is not required in order to have a 

valid Indian reserved water right. The Ninth Circuit Court 

has held that the right to water reserved by treaty to further a tribe's hunting and fishing purposes is basically 

non-consumptive and does not entitle the tribe to divert 

water from the natural course of the stream for other purposes. " [Tlhe entitlement consists of the right to prevent 

other appropriators from depleting the stream's waters below 

a protected level in any area where the non-consumptive 

rights apply." Adair, 723 F.2d at 1411. See also Washington 

v. Fishing Vessel Ass'n (1979), 443 U.S. 658, 686, 99 S.Ct. 

3055, 3074-75, 61 L.Ed. 2d 823 ("moderate living" standard 

applied to treaty fishing rights). 

The contention is made that the Water IJse Act does not 

adequately address these differences in appropriative and 

reserved rights. 

(3) Quantification 

Final decrees under the Water Use Act shall state the 

amount of water, rate and. volume included in each existing 

right. Section 85-2-234 (4) (b) , MCA. Under state law, the 

quantity of water is dependent upon the beneficial use for 

which it is claimed. Section 85-2-224 (1) (c) , MCA. 

In contrast under the Winters Doctrine and federal case 

law, the measure of the amount of water reserved to the 

Indian people is dependent upon the purposes for which the 

reservation was created. 

The contention is made that the Act does not sufficiently address these differences in the method of quantification. 

(4) Priority Date 

The Water Use Act requires a statement of the date of 

priority of the claimed water ri9h.t. Section 85-2-234 (4) (c) , 

MCA. The priority date is based upon "the approximate dates 
of first putting water to beneficial use for the various 

amounts and times" of claimed use. Section 85-2-224 (1) (c) & 

(f), MCA. 

As previously noted, under the Winters Doctrine, an 

Indian reserved. water right generally has a priority date as 

of the date on which the reservation was created. That date 

may not in any way relate to the date the water was first put 

to beneficial use. In addition, Adair in substance holds 

that an aboriginal right is not created by treaty, but the 

continued. existence of such a right may be confirmed by 

treaty. Aboriginal water rights are stated to carry a priority date of time immemorial. Adair, 723 F.2d at 1414. 

The contention is made that the Act does not sufficiently address these differences in the method of determining 

priority d.ates. 

(5) Exclusive Method 

The Water Use Act provides a system which is designated 

as the exclusive method for the appropriation of water after 

July 1, 1973. Section 85-2-301, MCA. 

A question ha.s been raised as to the manner in which 

Indian cla.ims for reserved water rights, which have not been 

resolved by compact, should be treated in view of the provision that Indian claims "shall be given treatment similar to 

that given to all other filings." Section 85-2-803(3), MCA. 

VI. 

In responding to these issues, none of the parties to 

this proceeding waive any factually-based challenge to jurisdiction or to the adequacy of a determination of rights by 

the water courts. Parties may choose to appeal the actual 

quantification and adjudication of water rights by the Water 

Court. This Court's determination in the present proceeding 
will not constitute a ruling on any factual issue in such an 

appeal. 

In addition, this Court recognizes the contention of 

several of the tribes that the United States, as trustee 

acting in their behalf, cannot fulfil its fiduciary obligation to protect Indian reserved water rights in Montana 

because of the Government's conflict of interest in asserting 

other federal water rights, which conflict with and may 

contradict the rights claimed by the Indian tribes. In 

recognition of that contention, this Court has specifically 

named the various Indian tribes as parties. This should 

dispose of the question of inadequate representation by 

giving the opportunity to the individual Indian tribes to 

present their own points of view to this Court. In addition, 

we will consider any contention presented to this Court with 

regard to adequate representation of the tribes by the United 

States, acting as trustee on their behalf. 

This Court also recognizes that some or all- of the 

tribes may contend that they should not be named as parties 

to this lawsuit based on their sovereign immunity. Should 

any tribe prefer dismissal on those grounds rather than 

appearing before this Court, a motion for dismissal should be 

made to this Court. 

VII. 

This is the schedule to be followed in this proceeding: 

1. Within thirty days of the date of this opinion, all 

petitioners shall prepare, file and serve briefs on each of 

the named respondents. 

2. Within sixty days of the date of this opinion all 

respondents desiring to do so shall prepare, file and serve 

their answering briefs on each of the named petitioners. 
3. Within seventy-five days of the date of this 

opinion, the petitioners will prepare, file and serve their 

reply briefs. 

4. This Court will set the matter for oral argument by 

a separate order. 

VIII. 

In taking jurisdiction of this petition, this Court does 

not desire to adversely affect negotiations between the 

Indian tribes and the Water Rights Compact Commission. 

Nothing in this Opinion shall be construed to affect or 

supersede the suspension of proceedings contained in § 

85-2-217, MCA, relating to reserved Indian water rights and 

federal reserved water rights during the negotiation period 

provided therein or during any legislative extension of such 

period. 

We concur: 

Chief Justice h 

-- 

Justices 
Mr. Justice John C. Sheehy, specially concurring: 

I concur in the acceptance of jurisdiction herein for 

all of the reasons expressed by Justice Weber. 

In addition, I would hold now that under Colorado River 

Conservation District, supra, the Water Court of our state 

has jurisd-iction irrespective of the provisions of our state 

constitution. I am also now of the opinion that our present 

Water Use Act is inadequate to adjudicate reserved Indian 

water rights, whether by treaty or aboriginal origination, 

for the reasons stated in the maiority opinion. I also feelthat the appropriation doctrine may be inadequate to 

adjudicate other federal reserved rights. 

I am expressing my opinions early to flag the 

legislature that if it desires to have an effective 

a.djudica.tory process to determine finally water rights in 

Montana., it must take action in t.hj_s legislative session of 

1985 to make curative amendments to the Water Use Act. 

Failure to act in this session would, in my opinion, mean a 

loss of jurisdiction to the State Water Court for such period 

of time as the legislature took it upon itself to act. No 

more important project faces the legislature or this state. 
Mr. Chief Justice Frank I. Haswell, dissenting: 

I dissent from this Court's acceptance of original. 

jurisdiction via extraordinary writ at this time. 1 consider 

this action premature until such time as Compact negotiations 

are concluded. 

While the Court's intervention at this time may not 

violate the letter of the law, it violates the spirit of 

Montana's public policy to make "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" 

(5 85-2-701, MCA) and the federal government claiming 

non-Indian reserved water rights within this state 

(s 85-2-703, BICA). The litigation spawned by the majority 

opinion is inimical to successful compact negotiations despite protestations to the contrary by the majority. The 

inherent coercive effect of contemporaneous litigation on the 

negotiating posture of the parties in Compact negotiations 

cannot be ignored. 

"b~& 4, 

Chief Justrce 

Mr. Justice L. C. Gulbrandson: 

I concur in the foregoing dissent of Mr. Chief Justice 

Ilaswell . / 
Mr. Justice Frank B. Morrison, Jr., dissenting. 

I respectfully dissent for the reason that, in my opinion, this Court does not have jurisdiction. 

Section 85-2-217, MCA, suspends "all proceedings to 

generally adjudicate reserved Indian water rights and federal 

reserved water rights of those tribes and federal agencies 

which are negotiating. . . " This statute, if applicable, 

suspends proceedings until July 1, 1985. The majority assumes jurisdiction here by holding that the provisions of 

this statute do not apply to this "supervisory control" 

proceeding. I disagree. 

The majority opinion of this Court joins the United 

States as a party defendant. This is done pursuant to the 

McCarran Amendment, 43 U.S.C. § 666. That Amendment 

provides : 

"(a) Consent is given to join the United States as 

a defendant in any suit (1) for the adjudication of 

rights to the use of water . . ." 

The only way in personam jurisdiction could have been 

acquired over the United States is pursuant to the above 

provision of the McCarran Amendment. By asserting jurisdiction over the United States, the majority has conceded that 

this is a proceeding to adjudicate the rights to the use of 

water. In so doing, this Court has specifically violated the 

provisions of § 85-2-217, MCA. 

Furthermore, this is a supervisory control action, not a 

declaratory judgment action. In asserting supervisory control over the water court, we become part of that proceeding, 

a proceeding to adjudicate water rights. 

In 1981, 5 85-2-217, MCA., was amended to substitute the 

word "proceedings" for the word "actions. " This further 

shows an intent on the part of the legislature to broaden the 

suspension provisions of the statute. "The word 'proceeding' 
a.pplies to any step to be taken in a cause which is authorized by law in order to enforce the rights of the parties or 

effectuate the proper conduct of it while pending in court." 

State ex rel. Bruce v. District Court of the Second Judicial 

District (1905), 33 Mont. 359, 362, 83 P. 641, 642. The 

amendment to the statute clearly embraces this petition for 

supervisory control. 

In addition to the foregoing, I concur with the comments 

made by the Chief Justice in his dissent.