INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, exrel. MIKE GREELY, Attorney General, Relator,

WATER COURT OF THE STATE OF MONTANA, and theHonorable W. W. Lessley, Chief Water Judge, etal., 

# F Respondents.

PER CURIAM: On December 18, 1985, thisCourt entered its Opinion in this cause. It has sincebeen 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 citationto "§ 83-2-701, MCA" is deleted and "585-2-701, MCA" is substituted therefor. On page 17, second paragraph under subsection (5)

## , the citation "S 85-2-803 (3),MCA" isdeleted and "S 85-2-702 (31, MCA" is substitutedtherefor. The Clerk is directed to mail a true copy hereof to counsel of record forallpa.rties. DATED this/./ gday of January, 1985.INTHE 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, etal., 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, MontanaAMICUS 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 LVMr. Justice Fred J. Weber delivered the Opinion of the Court. The Attorney General for the State ofMontana,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 conductof the litigationcommenced in thisCourt 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 Indiansand 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 ofMontana? The Attorney General requested an ex parte opportunity topresent oral argument on our acceptanceoforiginal jurisdiction. Such oral argumentwas 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. ThisCourt then ordered abriefing 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,anda 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 allproceedings 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 allwaters 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 regardingMontana'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 consistentwith this chapter and. to provide for the wise utilization, development, and conservation of the waters of the state for the maximum benefit of itspeople with the leastpossible degradation of the natural aquatic ecosystems.



# ..." Section 85-2-101(3),MCA. In 1979, the Water Use Act wa.samended 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 intentof the legislature regarding Indian reserved water rights is set forth in § 83-2-701,MCA: "Legislative Intent. Because the water and water riqhtswithin eachwaterdivision are interrelated. it-is the intent of the legislature to conduct unified proceedings for the general adjudicationof 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 reservedwater rights within the state." At the same time tha.tPart 7 (Indianand FederalWater Rights) was added to Title 85, Chapter 2, the Act was also amended to direct theAttorney General tobegin the statewide proceedings as follows: "Petition attorney general. Within 20 days after May 11, 1979, the state of Montana upon relationof the attorney general shallpetition the Montana supreme court to require allpersons 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-ingIndian reservedwater rights (S85-2-701,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 orprivate corporation, city

or other municipality, county, state agency of the state of Montana and federal agency of the United StatesofAmerica 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 tribeswere 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 inprogress,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: "Whilenegotiations for the conclusion of a compact under part 7 are being pursued, allproceedings 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 supervisionof thispart, 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 choosenot to negotiate their reserved water rights shall be subject to the full operation of the state adjud.icationsystem and may not benefit from the suspension provisions of this section.I' Is thepresent request for supervisory control prohibited as a proceeding to generally adjudicate reserved Indian water rights? While not allmembers of this Court so agree, we conclude that this proceeding does not fall within the prohibitionsof 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. Oursupervisory control is directed toward that existing action and does 

# - not constitute a proceeding, "to generally adjudicate reserved Indianwater 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.icateany Indianreservedwater 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.terCourt 

## - can conduct unified proceedings for the general adjudication of all existingwater 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 jurisdictionby theWater Court andwhether 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 suspensionprovision ofS- 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 judgmentproceeding and the present proceeding is for supervisory control, the factors considered in taking of original jurisdiction are relevant and worthy ofdiscussionhere: 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.blemanner, 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 theproceedings before this Court. 2. Grossman sought this Court's interpretationofpure legal questions of statutory and constitutionalconstruction. 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. InGrossmanwe 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 similarmanner, until the issueshere presented are resolved,theWater 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.tesin 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 inMontana, 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 (9thCir. 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. InGrossman,we reasoned that itwas appropriate to accept jurisdiction in order that legislative correction could be made in the Bond Act should that be necessary. Similarly if theWater Use Act is not adequate toprotect 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 ofwater rights litigation in Montana isappropriate. 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 CheyenneTribehad 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 determinationof thewater rightson its ownbehalf and of a number of Indian tribes, including theNorthern Cheyenne. TheNorthern Cheyenne's actionwas consolidated with one of the Government's actions. Other concerned tribes intervened. Each of the federal actionswas 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 federalcases. The federal actions were stayed in Montana pending the United States Supreme Court's decision in Colorado River Conservation Districtv. United States (1976), 424U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483. That case held that (1) the McCarran Amendment (43U.S.C. 

### 5 666),whichwaived 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 courtwas 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 therights of various Indian tribes in other P-lontanastreams. In November 1979, federal JudgesBattin and Hatfield consolidated the cases pending before various divisions of the United States District Court and dismissed each of the federal actions. Northern Cheyenne Tribev. Tongue River Water Users

(D.C. Mont. 1979), 484F.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 legislaturehad treated the Montana Reserved Water Rights Compact Commission by that time aswell. 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 (9thCir. 1982), 668 F.2d 1080. The Court ofAppeals held that (1)FJhen a statehas 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 ColoradoRiver, 424U.S. 800,was not applicable to the Montana litigation because of Colorado River's "limited factual circumstance," the infancy of both federaland state proceedings inMontana, 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 towater. In turn,that decisionwas appealed to the United States Supreme Court, which reversed the Ninth Circuit Court ofAppeals. Arizona v. San Carlos ~ppache ~ribe(1983)~ U.S. 

## , 103 S.Ct. 3201, 77L.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 Indianwater rights at issue here,we must assume, until informed otherwise, that at least insofar as state law is concerned such jurisdiction exists." San Carlos, 77L.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 duplicativeand wasteful,generating 'additional litigation through permitting inconsistent dispositions of property' Colorado River, 424U.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 seriouspotential 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 decisionmaking by either forum. 

# . .

# ." 77L.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 stateproceedings.

# .

# .." 77L.Ed.2d at 858. Addressing the propriety of deciding Indian reserved water rights in a state court proceeding, theUnited States Supreme Court stated: "We also emphasize, as we did in Colorado River, that our decision in noway changes the substantive Lawby which Indian rights7instate 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 Indianwater rightsprotected 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." 77L.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 (9thCir. 1983), 721 F.2d 1.187. The Court reserved two questions for state court determination.: (1) the question of jurisdictionunder state law,and (2)the question of the adequacyof theparticular stateproceeding to adjudicate the reserved water rights. Adsit, 721 F.2d at 1188. These were the same twoquestionswhich the SupremeCourt Left open for considerationon remand in SanCarlos, 77L.Ed.2d at 858,

n. 20. TheAttorney General states inhisMemorandum 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 criticalwater law issues which face the people of this state." If a state constitutional impediment exists or theWater 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 finaldecreesover the next severalyears 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 reservedwater right claimants, it is essential that, upon expiration of the R.eserved Water Rights Compact Commission's negotiation deadline, statewideproceedings go forward without unreasonable delay. These factors clearly indicate the type of an urgency or emergency which requires that thisCourt take jurisdiction.InMontana 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 similarmanner,

we conclude that the prompt determination of these fundamental questions with regard to P40ntana1swater 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 judicialeconomy. 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. Severalof the Indian tribes have argued that theAttorney 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 requestdismissal. We nowdesignate 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,

THEUNITED STATES OF AMERICA, Individuallyand as Trustee for each of the hereinafternamed Indian Tribes,and THEBLACKFEET NATION, THECROW TRIBE,THE CONFEDERATED SALISH AND KOOTENAI TRIBESOF THEFLATHEAD RESERVATION, THEGROSVENTRE AND ASSINIBOINE TRIBES OF THEFORTBELKNAPAND FORT PECK RESERVATIONS, THENORTHERN CHEYENNE OF THENORTHERN CHEYENNE INDIANRESERVATION,and THECHIPPEWA-CREE INDIANSOF THEROCKY BOY'S RESERVATION, and the TURTLEMOUNTAIN CHIPPEWATRIBE, aNorth Dakota Tribe with allotments to land in the State ofMontana, Respondents. IV. Following are the issues which we desire that the pa.rties brief and argue in thisproceeding: 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 reservedwater rightsheld, 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 forbriefing,we set forth some of the contentions which have beenmade 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 inanyway limiting the contentions whichmay be made by anyparty.(1) BeneficialUse State law defines beneficial. use, specifies that a statementof the purpose of the use shallbe included in each claim, a.~drequires 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 inpart upon non-use. Federal cases indicate that apresent consumptiveuse is not required to maintain an Indian reserved water right. Under the Winters Doctrine (Wintersv. 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 isnecessary to fulfill the very purposes forwhich a federal reservationwas treated." United State v. New Mexico (1978), 438 U.S. 696, 702, 98 S.Ct. 3012, 3014, 57 L.Ed.?d 1052. United Statesv. 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 substanceheld 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 beenmade that theWater Use Act does not sufficiently describe these differences in water rights reserved for a federal or tribal purpose and Montana appropriation rights for abeneficialuse. (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 courseof the stream for otherpurposes. "[Tlhe entitlement consists of the right to prevent other appropriators from depleting the stream'swaters 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 reservationwas created. The contention ismade that theAct does not sufficiently address these differences in themethod ofquantification. (4) Priority Date The Water Use Act requires a statement of the date 

### of priority of the claimedwater ri9h.t. Section 85-2-234(4)(c)

## , MCA. The priority date isbased upon "the approximate datesof 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 reservationwas created. That date may not in anyway relate to the date thewaterwas 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 apriority date of time immemorial. Adair, 723 F.2d at 1414. The contention ismade that theAct doesnot 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 exclusivemethod for the appropriationof water after July 1, 1973. Section 85-2-301,MCA. A question ha.sbeen raised as to the manner in which Indian cla.imsfor reserved water rights,which have not been resolved by compact, should be treated inview of the provision that Indian claims "shallbe 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 thisproceedingwaive 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 rightsby the Water Court. This Court's determination in the present proceedingwill 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 ownpoints ofview to this Court. In addition,

we will consider any contentionpresented to this Court with regard to adequate representationof the tribesby the United States,acting as trustee on theirbehalf. 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 appearingbefore thisCourt,amotion fordismissal 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 replybriefs. 4. This Court will set thematter for oral argumentby

a separateorder. VIII. In taking jurisdictionof thispetition,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

-- JusticesMr. JusticeJohn C. Sheehy, specially concurring:

I concur in the acceptance of jurisdiction herein for all of the reasons expressed by JusticeWeber. In addition, Iwould hold now that under Colorado River Conservation District, supra, the Water Court of our state has jurisd-ictionirrespective 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 themaiority opinion. I also feelthat the appropriation doctrine may be inadequate to adjudicate other federalreserved rights. I am expressing my opinions early to flag the legislature that if it desires to have an effective a.djudica.toryprocess to determine finally water rights in Montana.,it must take action in t.hj_slegislative 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 jurisdictionto the StateWater Court for suchperiod 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. jurisdictionvia 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" (585-2-701, MCA) and the federal government claiming non-Indian reserved water rights within this state 

## (s85-2-703, 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 litigationon the negotiating posture of the parties in Compact negotiations cannotbe ignored. 

# "b~&

# 4, Chief Justrce

Mr. JusticeL. C. Gulbrandson: I concur in the foregoingdissent of Mr. Chief Justice Ilaswell

# . /Mr. Justice Frank B. Morrison, Jr., dissenting. I respectfully dissent for the reason that, inmy opinion,this Court does nothave jurisdiction. Section 85-2-217, MCA, suspends "all proceedings to generally adjudicate reserved Indianwater 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. Idisagree. 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 theUnited Statesas a defendant in any suit (1) for the adjudicationof rights to the use ofwater

# ..." 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 sodoing, thisCourthas specificallyviolated the provisions of § 85-2-217,MCA. Furthermore,this is a supervisory control action, not a declaratory judgment action. In asserting supervisory control over thewater court,we become part of thatproceeding,

aproceeding 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 legislatureto broaden the suspensionprovisions of the statute. "Theword '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 itwhile 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, Iconcur with the comments made 

### by the Chief Justice in his dissent.