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Montana justices pick at unclear rulings

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HELENA, Mont. ? The Montana Supreme Court should find three state officials in contempt for violating previous rulings on Flathead Indian Reservation water issues, attorneys for the Confederated Salish and Kootenai Tribes argued here Nov. 13.

In addition, the high court apparently needs to reissue past orders that prohibit the state from approving new reservation water permits and change-of-use requests while federal reserved water rights are being quantified, because the dictates are being ignored, attorneys John Carter and Jim Goetz said.

The oral arguments before the high court stemmed from a lawsuit the tribes filed against the Montana Department of Natural Resources and Conservation (DNRC) in June. Also named individually in the action are DNRC Director Bud Clinch, Water Resources Division head Jack Stults, Donald MacIntyre, the department's lead attorney, and Reginald C. Lang, a Hot Springs man who wants to tap the reservation's Lonepine aquifer for a commercial bottling operation.

State officials approved a water-use permit for Lang earlier this year after it was determined at an administrative hearing that the water was not "hydrologically connected" to surface water supplies. The state contends it is not bound by past Supreme Court decisions in Lang's case because his water use allegedly wouldn't adversely affect tribal claims. The tribes, however, say they control all surface and groundwater supplies on the reservation, interconnected or not.

The issue of who owns what water and where is currently being negotiated through the Montana Reserved Water Compact Commission, which is also under DNRC's wing. Carter and Goetz warned that the agency's refusal to desist from trying to manage reservation water is hurting state-tribal relations and hampering the talks.

But Harley Harris, hired as a special assistant attorney general to represent the agency, argued that the issue of groundwater not connected to the surface has not been resolved by the court, and the agency was proceeding legally. Harris also denied the state is carving up unresolved tribal water rights through "piecemeal adjudication," which is prohibited by federal law.

But Justice Terry Trieweiler and District Court Judge Marc Buyske, filling in for recused Justice W. William Leaphart, picked at the state's contentions, saying they felt the past rulings were clear.

"When I read decision like that, I get my marching orders," Buyske said of one of the questioned opinions. "Why don't lawyers get their marching orders?"

Trieweiler added that he believes the past rulings have determined that tribal water rights within the reservation are "pervasive," meaning they're senior to all others and have to be decided first.

"Does the court have to address every drop of water on the Flathead Reservation before the department gets the point?" Trieweiler asked Harris, who responded that some groundwater is a "different species" than other groundwater.

"We don't believe the court had cognizance over groundwater" and its various types, Harris said. "We believe there's enough ambiguity that it's by no means a decided issue."

Carter, however, argued that even the DNRC's own documents show the department already concedes that the tribes have a right to groundwater and the agency doesn't differentiate between connected and unconnected supplies in its permit applications. He said the state simply treats all surface and groundwater supplies as the same. The issue has been decided at the state level twice in the past, and the tribes shouldn't have to be back in court requesting enforcement, he said.

"They are simply ignoring future uses in large part," Carter said, adding that the state must be stopped from allocating water when it's not been determined if its legally available to distribute. "There is a reserved right to groundwater."

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At several junctures, the attorneys were asked if there's a difference between a lawyer dispensing bad advice and one deliberately flouting the law if there is, in fact, ambiguity. Is it contempt if the law is unclear, Judge Buyske queried Carter.

"I think there's good legal advice and then there's stepping over what the court has said," Carter replied. "We don't want to be here again," but the agency's illegal actions against the tribes have to be stopped and findings of contempt will help make the past orders "ultimately sink in."

"Somebody in DNRC did it, someone advised it," Carter said. "They don't refute the facts in these contentions. They can't because they're in the record."

But Harris, the state's attorney, said the issues being debated aren't really about water, but claims to government power.

"We have absolutely no embarrassment about our activities," he said, adding the justices should perhaps allow broader jurisdiction issues to be decided at the federal level before ruling on the matter. "This really isn't a water rights issue. This is a government policy case."

Asked by Justice Trieweiler whether a finding of contempt would settle the immediate issues between the state and the tribes, Harris warned that the Legislature might step in, as it did in 1997 when it passed a bill to undermine an earlier Flathead Reservation water decision.

"You mean the Legislature can alter federal Indian rights?" Trieweiler asked. Harris conceded it couldn't, but lawmakers can give the agency more clout to manage water resources because a regulatory vacuum now exists on the reservation, he said.

Candace West, representing the accused DNRC officials, argued that contempt claims were improperly filed in an improper forum and should be dismissed. She argued that the Salish and Kootenai tribes were using the allegations in "an attempt to leverage in bad faith."

In fact, she said, the state, under former Gov. Marc Racicot, tried to set up an interim water management plan with the tribes while reserved rights were being negotiated. That and efforts to appoint mediators to resolve the current case were turned down. The state, she argued, has a constitutional duty to regulate non-Indian water permits, whether they're on or off the reservation.

Ronan attorney Greg Ingraham, representing Lang, said his client is a victim in the debate because he sunk all his money into the bottling business only to have his water permit enjoined by the court. That amounts to an illegal "takings," he claimed.

But Goetz said the tribes have been wronged, the state is not following the law, and there needs to be consequences.

"There is nothing unclear about this language," he said. "The language is so crystal clear ... They won't take 'no' for an answer. We're not dealing here with Mr. Joe-off-the-street. These people know this area. They know the meaning of a water right."

The justices did not immediately rule and took the arguments under advisement.