No. 88-093 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN THE MATTER OF THE ADJUDICATION OF THE 

EXISTING RIGHTS TO THE USE OF ALL THE WATER 

BOTH SURFACE AND UNDERGROUND, WITHIN THE 

DEARBORN DRAINAGE AREA, INCLUDING ALL 

TRIBUTARIES OF THE DEARBORN RIVER IN CASCADE 

AND LEWIS AND CLARK COUNTIES, MONTANA. 

APPEAL FROM: The Water Courts of the State of Montana 

The Honorable Roy Rodeyhiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert N. Lane argued, Helena, Ilontana 

For Respondent: 

Moore, Rice, O'Connell & Refling; Perry J Moore argued, 

Bozeman, Montana 

David C. Moon and Dorothy L. Brownlow, Rozeman, MT 

James D. Rector, Glasgow, Montana 

W. G. Gilbert, Jr: p Dillon, llontana 

James J. Bottomly, Bozeman, Montana 

William R. Morse, Absarokee, Montana 

John M. Dietrich, Billings, Montana 

John C. Doubek, Helena, Montana 

Lisa Leckie, Helena, Montana 

Chris Mangen, Jr., Billings, Montana 

For Amicus Curiae: 

Montana Wildlife Federation and Trout Unlimited 

Stan Bradshaw, Helena, Montana 

Thomas M. France, Missoula, Montana 

Submitted: September 9, 1988 

Decided: October 19, 1988 

dild: L; ;,,, 4 

k-- . - - *

I---) 4 

C3 -L6 

CLS 

** 

0 

cs x Clerk 4 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

We hold here that the Water Court was correct in 

determining on August 27, 1987, that the Department of Fish, 

Wildlife and Parks (DFWP) does not have a valid pre-1973 

appropriation water right claim to the in-lake or in-stream 

waters of Bean Lake, situated in the Dearborn River Drainage 

area. 

Bean Lake is a natural pothole lake, lying across the 

four common corners of Sections 13 and 14, Township 18 North, 

Range 7 West, and Sections 18 and 19, Township 18 North, 

Range 6 West, M.P.M. There is no defined water inlet to Bean 

Lake. Its sources are ground water seepage and run-off from 

precipitation. The lake has a surface area of about 200 

acres, a maximum depth of 31 feet and a total average volume 

of 2,862 acre-feet. Though the lake has a man-made overflow 

emptying to the north fork of the Dearborn River, no water 

flows out of the lake under normal circumstances. 

The Dearborn River Drainage area, which includes Bean 

Lake, is subject to the ongoing statewide adjudication of 

water rights commanded under Title 85, Ch. 2, Part 2 (SF 

85-2-201-243) , MCA (1987) . Acting under $5 85-2-221, 223, 

224, MCA, DFWP duly filed a claim for a use water right based 

on recreation to "all the water stored in [Bean] Lake." The 

Dearborn River Basin is designated by the Water Court as 

Basin 41U, and the claim of DFWP was assigned the claim 

number 41U-W-96936. DFFJP claims a "use" right under the 

Montana prior appropriation doctrine. Its claim is not based 

in any manner on the public trust doctrine. The claimed use 

was "recreation," but the claim was amended at trial before 
the Water Court to include use for "fish and wildlife" 

purposes. 

DFWP first planted fish in Bean Lake on May 27, 1933. 

Rainbow trout were planted in 1934, silver salmon in 1935, 

and then not again until 1951 when fish were planted every 

year thereafter. 

Prior to 1951, privately owned lands completely 

surrounded Bean Lake, with no public access. On May 15, 

1951, Wallace Bean, the owner of lands abutting Bean Lake, 

entered into a tripartite agreement with the then Montana 

State Fish and Game Department, and the Augusta Chamber of 

Commerce, whereby Bean permitted access over his lands to the 

water's edge for the public to use in boating and fishing on 

Bean Lake. In return, the Montana Fish and Game Department 

instigated a management plan and agreed to stock the lake 

with suitable fish. The Augusta Chamber of Commerce agreed 

to set up conveniences for visitors and in effect to police 

the area. The agreement provided that either party could 

terminate the agreement after two years, in which case the 

lake would revert "back to its original management as a 

privately owned lake." 

In 1964, Wallace R. Bean and Fern L. Bean, his wife, by 

warranty deed, conveyed to the State Fish and Game Commission 

!a predecessor of DFWP) 16.33 acres abutting Bean Lake. 

Under the deed, the grantors had the right to drain and lower 

the level of Bean Lake to a point on a permanent marker 

installed at the lake's edge. The Beans covenanted, to run 

with the land, that the lake would at all times be maintained 

at a level equal to or higher than the permanent marker. 

In 1963, at about the same time as the warranty deed 

transaction, the Beans filed a water right claim on Bean Lake 

for irrigation purposes. At least one other appropriator has 
an earlier appropriation water claim to Bean Lake for stock 

water. 

It is assumed by the Court that there has been extensive 

public use of Bean Lake for recreational and fishing purposes 

through the years herein mentioned, and yearly efforts by 

DFWP and its predecessors to manage the fisheries resource, 

compute Bean Lake surface levels, make studies regarding 

animal wastes in Bean Lake, enforce rules regarding use of 

motorboats, and other indicia of DFWP involvement regarding 

the lake. 

In the adjudication of the Dearborn River drainage area 

by the Water Court, a temporary preliminary decree was 

entered which omitted the claim of DFWP to an appropriative 

use right in the waters of Bean Lake. The remark of the 

Water Court in denying the DFWP claim was that the "Water 

Court finds no legal basis for this purpose to be considered 

as a beneficial use or appropriation of water." 

DFWP filed an objection to the Water Court's denial of 

its claim in adopting the temporary preliminary decree, and 

eventually the objection came on for a pre-hearing 

conference. The legal issues in the case were of a 

precedent-setting nature which required statewide notice by 

publication. The notice invited and provided for 

participation by interested persons in the legal issues 

presented and allowed the equivalent of objections to the 

potential quantity of DFWP's claimed right. Those who 

desired to participate were required to file a Notice of 

Intent to Appear. Over 50 different individuals or groups 

exercised an option to participate. DFWP1s claim came on for 

trial before the Water Court. On August 27, 1987, the Water 

Court entered its findings of fact, conclusions, judgment and 

decree to the effect that the claim of DFWP was not a valid 

appropriation water right. "because of the lack of diversion, 
intent, and notice." The claim of DFWP was therefore 

terminated. Appeal by DFWP to this Court followed. 

The first problem is whether the decision of the Water 

Court is appealable to this Court at this stage of the 

proceedings. No Rule 54 (b) certificate was sought or 

procured from the Water Court. 

In the recent consolidated causes no. 87-528 (relating 

to the Sage Creek Drainage area) and 88-092 (relating to the 

Boulder River Drainage area) decided October 11, 1988, we 

dismissed appeals where a Rule 54(b) certificate had not been 

obtained, in effect holding that the causes were not final 

for the purposes of appeal. We have decided not to take that 

course with respect to this case. We are informed that DFWP 

has filed 15 to 17 claims in various drainages which claim a 

water right based on the doctrine of appropriation, based on 

facts similar to those here. DFWP is given authority 

exclusively to represent the public for purposes of 

establishing any prior and existing public recreational use 

right in the ongoing water right determinations. Section 

85-2-223, MCA. Under this statute, DFWP considers itself 

duty-bound to file appropriative use claims in this and other 

drainages. The issue, of course, will recur, and any 

decision by us now as to the precise validity of such 

appropriation claims would help speed the water adjudication 

process. As we said in McDonald v. State (Mont. 1986), 722 

P.2d 598, 43 St.Rep. 576: 

The issue raised is not limited personally to 

McDonald and her co-petitioners, but extends 

throughout the whole process of the adjudication of 

irrigation of water rights by the Water Courts. 

The issue affects all of those rights. 

Adjudication by this Court now as to the issue 

raised would serve to guide the Water Court in this 

particularly important matter; would provide 

judicial economy in avoiding protracted litigation 

both in the Water Courts and in this Court; and 
would serve the public policy of the state by 

expediting the determination of existing water 

rights. It is therefore appropriate that we accept 

jurisdiction of this issue by way of declaratory 

relief, involved as it is with our duty to 

supervise the Water Courts. We have, moreover, a 

justiciable issue which does not require further 

determinations of factual issues either by a master 

or by a district court. (Citing authority.) . . . 

722 P.2d at 601, 43 St.Rep. at 579. 

The parties to this lawsuit are anxious for an early 

determination of the issues presented, and each urges us to 

take jurisdiction of the appeal. We could accept 

jurisdiction under our power to declare rights, status and 

other legal relations, whether or not further relief is or 

could be claimed ( 27-8-201, MCA) and to afford relief on 

certainty and insecurity with respect to those rights (S 

27-8-102, MCA). Lest there be any dispute about it, however, 

we accept jurisdiction of this cause under our power of 

general supervisory control over the Water Courts. Art. VII, 

S 2(2), 1972 Mont. Const. 

The second issue to be disposed of is the contention of 

DFWP that the Montana Stockgrowers Association has no 

standing as a party in this cause. DFWP contends that the 

Association represents no person who had a potential to be 

adversely affected by the DFWP claim in Bean Lake. The DFWP 

objected before the Water Court claiming that because there 

were only two other potential appropriation users in the Bean 

Lake adjudication, and since the Association did not 

represent either of them individually in a cause, no 

justiciable controversy or standing in the Association 

existed. 

The Montana Stockgrowers Association answers that the 

importance of the issue was recognized by the Water Court 

which. required statewide notice to be given and invitation 
for others to appear. Because of the large numbers of 

persons appearing, the law firm of Moore, Rice, OIConnell and 

Refling was appointed lead counsel for all those appearing to 

oppose the claim, including their client Montana Stockgrowers 

Association. The Association further claimed standing on 

behalf of its membership who could be affected. It appears 

that both of the appropriators in Bean Lake are also members 

of the Association. We agree that Stockgrowers must be able 

to show an interest in the subject matter of litigation which 

has been injuriously affected by the judgment or order to 

have standing on appeal. Holmstrom Land Company v. Newland 

Creek Water District (1979), 185 Mont. 409, 425, 605 P.2d 

1060, 1069. 

In the very recent case of New York State Club Ass'n., 

Inc. v. City of New York, et al. (Decided June 20, 1988, no. 

86-1836) , - U.S. -1 - S.Ct. I- L.Ed.2d - r 

the United States unanimously upheld the right of an 

association to proceed in an action on behalf of its members. 

The Supreme Court held an association has standing to sue on 

behalf of its members when "(a) its members would otherwise 

have standing to sue in their own right, (b) the interests it 

seeks to protect are germane to the organization's purpose; 

and (c) neither the claim asserted nor the relief requested 

requires the participation of individual members in the 

lawsuit." Those conditions for standing are all met here. 

We hold that the tests in -- New York State Club Assln., Inc., 

supra, also determine the standing of an association to 

appear as a party on behalf of its members in the state 

courts of Montana. In this cause, the Montana Stockgrowers 

Association has standing as a party. 

We turn now to the principal issue in this case, which 

is whether DFWP, for itself or for the people, has an 

enforceable appropriation water right claim for recreation, 
fish and wildlife purposes in Bean Lake that pre-existed 

1973. The DFWP claim is based exclusively on the doctrine of 

appropriation, and we can concentrate our discussion on the 

attributes of that doctrine in making a decision. 

What would be the effect if we agreed with DFWP that an 

appropriation right existed? DFWP argues for a priority date 

of 1951, the time that its predecessor entered into a 

tripartite agreement with the Beans and the Augusta Chamber 

of Commerce. Its claim is for the use of all the water 

"stored in Bean Lake." Thus DFWP's claim would be junior to 

the first appropriator's right, for which the Water Court 

awarded a priority date of 1864. It would be senior to the 

Bean appropriation of 1964. From our record, it appears that 

no other appropriator made claim to the use of Bean Lake 

waters in the adjudication process. 

DFWP urges that its claim of water right can be 

sustained on two grounds: (1) recreational fish and 

wildlife purposes are beneficial uses which will support an 

appropriation right; and (2) for this type of an 

appropriation, no diversion of the waters is required. 

The arguments of DFWP in support of its claim may be 

summarized: in-stream, in-lake, or in-source recreational 

fish and wildlife uses without a diversion are beneficial 

uses which support appropriation by the Department on behalf 

of the public. There is no question that the use in this 

case was established well prior to July 1, 1973. Art. IX, 

Sec. 3, 1972 Montana Constitution recognizes recreation as a 

beneficial use. The establishment by the legislature of 

"Murphy rights" in 1969 and 1973 shows that uses for 

recreational purposes are beneficial. 

Further summarizing, we note that DFWP contends the 

Water Court itself is divided on the necessity of diversion. 

In this case the Water Court Judge found that a diversion was 
necessary for a pre-1973 use right. In the OIFallon Creek 

Basin, (case 42L-5 in the Water Court) and in the Red Water 

River Basin (case 40P-2 in the Water Court) the Water Court 

held that the Department of Interior, Bureau of Land 

Management, would have recognized appropriation claims for 

wildlife in instances where the Bureau acted under a 

congressional mandate to protect wildlife. In the Kootenai 

River Drainage (case 76D-48 in the Water Court) the 

construction and maintenance of fish ladders, fish passage 

facilities and the barrier dam and fish trap were recognized 

as constituting an appropriation by diversion on Young Creek 

and the Tobacco River. Further, the Department urges that 

the purpose of diversion is to give notice of the 

appropriated use by the appropriator and in this case the 

extensive efforts and expenditures by the Department in 

developing and managing the fishery clearly gave such notice 

though no diversion occurred. In other words, the actual 

application of the water to a beneficial use meets the 

requirements of intent or notice. 

The respondents answer these contentions by insisting 

that an "existing right" must be a right to the use of water 

protected under the law as it existed prior to July 1, 1973. 

They claim that DFWP has not met the basic elements of a 

valid appropriation under the law prior to 1973, and that the 

claim of appropriation at this late date is simply an 

afterthought. The requirement of an intent to appropriate 

serves several elements, priority, quantity and the purpose 

of use. The most important function of diversion is notice 

that a water right is being appropriated. Respondents 

further contend that in the stocking and managing of Bean 

Lake, the Department had no intent at the time to make an 

appropriation on which to base a water right. The diversion 

requirement provides evidence of an intent that gives notice 
to other water users of the specifics of the appropriation, 

citing Holmstrom Land Company v. Newland Creek Water District 

(1979), 185 Mont. 409, 605 P.2d 160. 

These are the principal contentions of the parties. 

Both sides have also cited to us decisions of other states, 

but these are somewhat conflicting and depend in some 

instances on factors not present here, such as legislative 

action. We should note that DFWP relies particularly on 

Paradise Rainbows et al. v. Fish and Game Commission (19661, 

148 Mont. 412, 421 P.2d 717. In that case Warren DePuy had 

constructed a dam on Armstrong Spring Creek, and had taken 

all of the flow of that water for the construction of fish 

ponds. He was directed by the Commission (predecessor of 

DFWP) to construct a fishladder over the dam pursuant to a 

statute. DePuy refused and the Commission brought an action 

for mandatory injunction to compel the building of the fish 

ladder. The Court denied the mandatory injunction but in 

dictum it stated: 

The Commission does not deny that DePuy has a valid 

appropriative right to the waters of Armstrong 

Spring Creek. In fact the Commission made no 

attempt to prove that the amount of water actually 

put to beneficial use by DePuy was less than the 

amount claimed and diverted. The Commission does 

maintain that the public has a prior right to the 

waters of the creek which would require DePuy to 

release some water through a fishladder. The 

public right urged by the Commission would be based 

on the fact that the public had used the creek as a 

fishing stream and natural fish hatchery before 

DePuy built his dam. Under the rule of Bullerdick 

v. Hermsmeyer, 32 Mont. 541, 554, 81 P. 334, DePuy 

could not use the water to the detriment of prjor 

rights. 

Such a public right has never been declared in the 

case law of this state. California, an 

appropriation doctrine jurisdiction, whose 

constitutional provisions relating to water rights 

are virtually the same as Art. 111, Sec. 15 of the 
Montana Constitution [I8891 has recognized such a 

right and has upheld statutes requiring fishways 

(citing authority). Under the proper circumstances 

we feel that such a public interest should be 

recognized. This issue will inevitably grow more 

pressing as increasing demands are made on our 

water resources. An abundance of good trout 

streams is unquestionably an asset of considerable 

value to the people of Montana. 

While the Commission's argument is plausible, we 

cannot yield to it given the facts at hand. . . . 

148 Mont. at 419, 420, 421 P.2d at 721. 

We accept as given that the activities of the DFWP in 

stocking Bean Lake, maintaining the fishery resource, making 

studies of the Bean Lake surface levels and fish population, 

enforcing rules relating to motor boats, coupled with the 

general public use of Bean Lake for the purpose of 

recreation, wildlife, and fishing constituted a beneficial 

use of the waters within the meaning of the appropriation 

doctrine. In this case the Plater Court itself determined 

that use was in fact beneficial. This Court has never closed 

the list of what comprises a beneficial use. See Stone, 

"Legal Battle Background on R.ecreationa1 Use of Montana's 

Waters," 32 Mont. Law Review 1, 14 (1971). 

Recreation is recognized as a beneficial use in Art. IX, 

Sec. 3, 1972 Montana Constitution. 

The historical growth of Montana appropriation water law 

is well documented in our cases. See Stone, "Montana Water 

Law for the 1980's" (1981). It began with the needs of 

miners who engaged in placer mining and mill operations and 

nearly simultaneously with the needs of irrigators for farm 

lands. In these cases, the water was "captured" in the sense 

that the water was diverted from its main stream or channel 

and put to use by the appropriator. A completed 

appropriation meant an actual diversion of the water which 
served any of several purposes. Diversion proved an intent 

to appropriate the water, Bailey et a1 v. Tintinger (1912), 

45 Mont. 154, 122 P. 575, as did the capacity of the works 

Bailey, supra. In Toohey v. Campbell (1900), 24 Mont. 13, it 

was held that intent was determined by the extent of the farm 

tract actually reduced to possession and cultivated. 

It cannot be disputed however that there were beneficial 

uses for which appropriation rights could be obtained which 

would not require diversion of the waters. Though some 

impoundment was involved, such use included hydroelectric 

power use of dams, and the impoundment of waters in 

reservoirs, although the latter included a capture of sorts. 

The first appropriators in Montana acquired an 

appropriation right simply by putting the water to a 

beneficial use. Kienschmidt v. Binzel (1894), 14 Mont. 31. 

The first statutes relating to appropriation were enacted in 

this state in 1885. Even without complying with the 

statutes, however, a party, simply by putting the water to 

beneficial use, could acquire a valid appropriation right, 

Murray v. Tingley (1897), 20 Mont. 260 provided the stream 

was unadjudicated. 

There is not any doubt that in all the time from the 

first settlers until 1972, the waters of Montana were being 

put to extensive recreational use by the public. The DFWP 

and its predecessors have a long history of sustaining 

fisheries in-lake and in-steam. Yet no court case, and no 

statute except for a Murphy right statute, recognized any 

kind of an appropriation right in the waters thus used. In 

truth, no Montana legal authority, deriving either from 

common law or statute, acknowledged that recreational, fish 

or wildlife uses, even though beneficial, gave rise to any 

water rights by appropriation under Montana law. 
It was in this legal climate that the legislature 

adopted the first Murphy right statute in 1969. Chapter 345, 

Laws of 1969 amended S 89-801, R.C.M. (1947) , by adding 

subsection (2) thereto, so that the section read in part as 

follows: 

89-801. What waters may be appropriated. (1) The 

right to the use of the unappropriated water of any 

river, stream, ravine, coulee, spring, lake, or 

other natural sources of supply may be acquired by 

appropriation, and an appropriator may impound 

flood, seepage, and waste waters in a reservoir and 

thereby appropriate the same. 

(2) But the unappropriated waters of the streams 

and portions of streams hereafter named shall be 

subject to appropriation by the fish and game 

commission of the state of Montana in such amounts 

only as may be necessary to maintain stream flows 

necessary for the preservation of fish and wildlife 

habitat. Such uses shall have a priority of right 

over other uses until the district court in which 

lies the major portion of such stream or streams 

shall determine that such waters are needed for a 

use determined by said court to be more beneficial 

to the public. The unappropriated water of other 

streams and rivers not named herein may be set 

aside in the future for appropriation by the fish 

and game commission upon the consideration and 

recommendation of the water resources board, fish 

and game commission, state soil conservation 

committee, the state board of health and approval 

of the legislature . . . 

Section 89-801, R.C.M. (1947) as amended was in force 

and effect until 1973 when it was repealed. While it was in 

effect, the Fish and Game Commission was permitted to 

appropriate unappropriated waters in 12 blue-ribbon fishing 

streams named therein. Bean Lake was not named. The amended 

statute further expressly provided that no other 

appropriations would be allowed except upon the 

recommendations of certain boards of the state, and 

particularly the "approval of the legislature." Our 
understanding is that the Fish and Game Commission, and its 

successors have made Murphy right appropriations as permitted 

under § 89-801 R.C.M. (1947). 

The foregoing was the state of the law pertaining to 

water use rights when the state constitutional convention was 

held in 1972. Before that, in no sense, did DFWP or its 

predecessors claim any appropriative rights for recreational 

fish or wildlife purposes except as permitted under the 

Murphy right statute. Indeed, the evidence in this case 

shows that the publications issued by DFWP and its 

predecessors, and public statements made by persons holding 

responsible positions in the Department, all assumed that an 

appropriation right could not be acquired for those purposes. 

In so reporting, we do not intimate that the Department is 

bound by those expressions of opinion of its publications, or 

of its officers and employees. We report them as confirming 

the general opinion of the legal community that existed at 

the time. It is with that background of opinion that the 

dictum expressed in Paradise Rainbows, supra, can be 

understood. 

The 1972 Montana Constitution provided that "all 

existing rights of the use of any waters for any useful or 

beneficial purpose are hereby recognized and confirmed." 

Art. IX, Sec. 3 (1) , 1972 Mont. Const. In McDonald v. State 

(Mont. 1986), 722 P.2d 590, 601, 34 St.Rep. 576, we said: 

There are two components to the Montana 

constitutional guarantee: There must be an 

existing right to the use of water, and the use 

must be for beneficial purpose . . . 

While it might be argued that at the time of the 

adoption of the 1972 Montana Constitution, the in-stream and 

in-lake waters of the state were being put to beneficial use 

for recreation, fish and wildlife purposes, and that 
therefore an appropriation right existed, it is clear that at 

the adoption of the Constitution, the constitutional framers 

thought otherwise. 

As a part of Art. IX of the new Constitution, the 

convention adopted subsections (3) and (4) of Section 3. 

Those subsections provide: 

(3) All surface, underground, flood, and 

atmospheric waters within the boundaries of the 

state are the property of the state for the use of 

its people and are subject to appropriation for 

beneficial uses as provided by law. 

(4) The legislature shall provide for the 

administration, control, and regulation of water 

rights and shall establish a system of centralized 

records, in addition to the present system of local 

records. 

When those subsections came before the convention for 

adoption, Delegate McNeil, supporting their adoption, spoke 

to the convention in this wise: 

Subsection 3 is a new provision to establish 

ownership of all water in the state subject to use 

by the people. This does not, in any way, affect 

the past, present, or future right to appropriate 

water for beneficial uses and is intended to 

recognize Montana Supreme Court decisions and 

guarantee the State of Montana's standing to claim 

all of its waters for use by the people of Montana. 

in manners involving other states and the United 

States government. Subsection 4 is a new provision 

to permit recreation and stockwatering to acquire a 

water right without the necessity of a diversion. 

This applies only to future rights and, of course, 

only to waters listed of which there are no present 

water rights. This subsection further provides 

that future agricultural and industrial water 

development will not be foreclosed by recreation, 

as it is left up to the Legislature to determine 

the method of establishing a future water right 

without a diversion; . . . 
Verbatim Transcript, Montana Constitutional Convention, Vol. 

V, at 1301. 

Subsection 4, referred to in the above quotation, was 

proposed by the Committee on Natural Resources and 

Agriculture. As proposed, subsection 4 would have provided 

that a diversion was not required for future acquisition of a 

water right, and would have given the legislature power to 

designate priorities between future acquired water rights. 

(Montana Constitutional Convention, Vol. 11, at 552-553.) 

Subsection 4 did not make it through the convention to be 

included in the 1972 Montana Constitution. After several 

hours of debate, the subsection was deleted in its entirety 

on motion of Delegate McDonough. (Montana Constitutional 

Convention, Verbatim Transcript, Volume V, at 1301-1343.) By 

the ad-option of Article IX, Section 3 in its present form, 

the Constitutional Convention left it to the legislature to 

provide appropriation rights for beneficial uses not 

theretofore recognized under our law. 

The legislature did so act in 1973. It repealed the 

first Murphy right statute, S 89-801 R.C.M. (1347) . Instead 

of an appropriation, the legislature provided that a 

government agency could reserve waters for existing or future 

beneficial uses in most of the principal streams of the 

state. Section 85-2-316, MCA. Such reservations, when 

granted, date from the order reserving the water adopted by 

the Board of Natural Resources and Conservation; they may not 

adversely affect any rights in existence at the time; and the 

Board has no authority to alter a water right that is not a 

reservation. Section 85-2-316 (9) , (12) , MCA. 

It is clear therefore that under Montana law before 

1973, no appropriation right was recognized for recreation, 

fish and wil-dlife, except through a Murphy right statute. 

The prevailing legal theory was that some form of diversion 
or capture was necessary for an appropriation even though 

some forms of non-diversionary water rights were given 

appropriation status. In this case the Water Court denied 

the appropriation water right claim "because of the lack of 

diversion, intent, and notice." Whatever the merits of the 

lack of diversion argument, the DFWP and the public could not 

have intended an appropriation where none was recognized by 

law, and for the same reason, adverse appropriators could not 

have had notice of such a claim. We therefore uphold the 

Water Court's decision that DFWP, for itself or for the 

public, had. no appropriation right in Bean Lake, and no 

"existing right" therein which is protected by Art. IX, S 

3(1) of the 1972 Montana Constitution. 

DFWP raises two other issues, one relating to additional 

findings of fact requested by the Department which were not 

considered by the Water Court, and the second that the Water 

Court precluded the Department from inquiring into the water 

rights of the other appropriators in this case. At the 

outset of this opinion, we assumed all the facts for which 

the Department contended and none of those facts would change 

our consideration of the applicable law. Since DFWP had no 

appropriation water rights in Bean Lake, it was irrelevant to 

inquire into the kinds of water rights of the other 

appropriators against whom no objections were raised by other 

parties. 

This opinion serves the office of a writ of supervisory 

control, without the necessity of the issuance of further 

writs or documents. We acknowledge with appreciation the 

several briefs submitted by amici curiae in this case. Let 

remittitur issue forthwith. 
We Concur: - 

HE@-/ Justices