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Salish and Kootenai win big water rights case in Montana

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HELENA, Mont. - In a major victory for the Confederated Salish and Kootenai Tribes, the Montana Supreme Court ruled Dec. 6 that state officials cannot issue new water-use permits on the Flathead Indian Reservation before federal reserved water rights are quantified.

The 5-2 ruling reiterates the high court's decisions in two related water rights cases that Montana Department of Natural Resources and Conservation (DNRC) officials claimed were unclear. The ruling irrevocably declares that reservation groundwater is included in the ban on state permitting.

"We see no reason to limit the scope of our prior holdings by excluding groundwater from the tribes' federally reserved water rights in this case," stated the majority opinion written by Justice Terry Trieweiler. "We cannot say it more clearly: the DNRC cannot process or issue beneficial water use permits on the Flathead Reservation until such time as the prior preeminent reserved water rights of the tribes has been quantified."

The court, however, did not honor a Salish and Kootenai request that three top DNRC officials be found in contempt. The majority did leave the door open for the allegations of malfeasance to be considered by a lower court - and the Supreme Court again, if necessary.

Attorneys John Carter, Dan Decker and Jim Goetz, representing the tribes, filed the case directly into the Supreme Court last year after DNRC officials approved a use permit for Reginald C. Lang to commercially bottle groundwater tapped from the Lonepine aquifer north of Hot Springs.

The tribes argued that by approving the permit, the agency was acting illegally and in defiance of previous high court decisions. Contempt rulings were initially sought against DNRC Director Bud Clinch, Water Resources Division Administrator Jack Stults, lead agency attorney Don MacIntyre and co-counsels Tim Hall and Fred Robinson. Hall, an unsuccessful candidate for Montana's chief water judgeship, and Robinson were later dropped from the complaint.

The state officials claimed in briefs and at oral arguments late last year that their marching orders were unclear in the past decisions. The department, through a hearings officer, also declared that the groundwater in question was not "hydrologically connected" to surface supplies and could thus be allocated without damaging water resources reserved for the tribes.

Trieweiler was widely expected to come down hard on the state agency. During the oral arguments, he became increasingly agitated at DNRC's attorneys for saying they thought they could still process reservation permit applications, despite being directed not to in the earlier rulings.

"Does the court have to address every drop of water on the Flathead Reservation before the department gets the point?" Trieweiler asked at one point during the hearing.

In the 17-page majority opinion, also signed by Justices Patricia Cotter, Jim Reigner, James Nelson and District Court Judge Marc Buyske, who sat in for Justice William Leaphart, the court invited the tribes to further develop a legal record for their contempt assertions.

"While we disagree with the (state's) contention that this court would not typically have jurisdiction to determine that a party is in contempt for willful disregard of a judgment entered by this court, we do agree with the DNRC that the petition before us presents factual issues better resolved in a district court," the opinion reads. "... (T)he matter should more properly be raised in the trial court where venue is established so that evidence can be presented and factual issues resolved."

The majority decision means the Lang permit cannot be issued, and DNRC must wait until tribal allocations are settled through adjudication or an agreement negotiated through the Montana Reserved Water Rights Compact Commission, the ruling states. Another in a series of ongoing meetings between the tribes and the commission is scheduled Dec. 18 at the KwaTaqNuk Resort in Polson.

Justice Jim Rice, a former Republican state legislator and unsuccessful attorney general candidate, issued a scathing dissent to the court's ruling. The dissent, partially joined by Chief Justice Karla Gray, blasted the decision to nullify Lang's permit and said state officials acted without contempt as they struggled to follow the court's past decisions on reservation water rights.

"The court is fooling itself if it believes that this decision has plugged the final leak in the legal dike," Rice wrote. "Water will simply not stop flowing, and Montanans will simply not stop needing it. The demands of humanity will bring the issue back."

Rice added that he believed the Lang permit should be issued by the state.

"Doing so would bring to the forefront a critical issue, long dormant, regarding jurisdiction," he wrote, adding that the matter could then be decided by the federal judiciary, which he blamed, at least in part, on creating the state-tribal dispute.

"Despite its professed concern over the provision of remedies, the court has afforded (Lang), and the many others like him who live on the reservation and need to use water, no remedy whatsoever," Rice wrote. "Despite statutes providing for the deliberate consideration of Lang's application and all other water rights that might be affected thereby, he and many other Montanans have been deprived, by this court, of the opportunity to proceed in any manner. That is simply regrettable."

Justice Nelson, in an unusual move, criticized Rice for his position.

"These rules do not originate in rocket science: Indians own their reserved water rights; those rights are superior to state appropriative water rights; to date those reserved water rights have not been quantified as to amount or priority on the Flathead Indian Reservation; therefore the state cannot grant to some third party a right to appropriate or use water that the state may not own," Nelson wrote.

"As written, the dissenting opinion will accomplish little more than provide sound bites for media; further strain relations between Indians and non-Indians and the tribal and state governments; and provide fodder for those who, as a matter of course and in furtherance of their own misguided agendas, misrepresent to the public the law and this court's opinions," Nelson concluded.