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High court refuses to dissolve Flathead water-use ruling

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HELENA, Mont. - The Montana Supreme Court has rejected a state request to "dissolve or modify" a 1999 ruling it issued over water-use permitting on the Flathead Indian Reservation.

"We agree with the tribes that the relief sought by the department is dependent on facts which this court is not well-equipped to develop. The issue would be more appropriately considered following a fully developed factual record," the court ruled May 31.

A temporary restraining order issued against Natural Resources in late April by District Court Judge Jeffrey Sherlock of Helena remains in effect. It is tied to a new lawsuit filed by the Salish and Kootenai Tribes that contends the state is making another end run around the law over other permit-related issues. Sherlock has not yet issued a ruling on whether a more permanent injunction will be imposed against the agency.

It was in an unusual move that the Montana Department of Natural Resources and Conservation on May 11 filed a motion asking the high court to revisit the case which had already been decided in favor of the Confederated Salish and Kootenai Tribes.

The 1999 ruling said that a bill approved by the 1997 Legislature to override a previous Montana Supreme Court decision over related issues did not change the court's interpretation that the state can't issue new water-use permits on the reservation because tribal water rights have not yet been quantified. Without knowing if the water is legally available, the court said the state can't authorize people to use it.

In last month's motion, Resources lead counsel Don MacIntyre argued that while the 1999 ruling indeed prohibits the agency from actually issuing new water-use permits for surface waters, it allegedly doesn't preclude the continued "processing" of permit applications and doesn't include groundwater that is not "hydrologically connected" to surface water supplies.

Documents filed by the state show the department poised to approve a new use permit to Reginald C. Lang to tap into groundwater in the Lonepine area of the Little Bitterroot Valley. Lang wants to take about 735 gallons a minute from a well and bottle it for resale, the agency says.

State and tribal officials, working through the Montana Reserved Water Compact Commission, are about to embark on formal negotiations to settle many water issues on the 1.2 million-acre reservation. With that in mind, DNRC officials clearly covered their bets in their recent Supreme Court motion.

In a May 22 reply, tribal contract attorney Jim Goetz of Bozeman blasted the state's contentions.

"These issues have been resolved by this court several times," Goetz wrote. "The argument of DNRC, that it was enjoined only from issuing new water rights on the reservation, as opposed to 'processing' applications, is pure sophistry," he said.

"The continuing efforts to 'process' new water rights applications are not only legally pointless, they have the additional undesirable effect of demonstrating the continuing stubborn hostility of the state's senior water rights officials to the tribes' senior reserved rights," Goetz added. He and tribal attorneys John Carter and Dan Decker also argued it would be improper to make a decision about the Lonepine application without more details being known.