Tribal water fight tests state’s powers 

Tribal water

A bitter fight over Flathead Indian Reservation water has again spilled into the courts.

An April 23 lawsuit filed by the Confederated Salish and Kootenai Tribes contends that the state is ignoring two previous Montana Supreme Court rulings while still trying to manage water-use permits on the reservation.

State attorneys say the tribal claims amount to a whole lot of hooey. The stage for the latest skirmish was set last month when the Montana Department of Natural Resources and Conservation (DNRC) scheduled a hearing to deal with several longstanding disputes over various permits, which are primarily issued to non-Indian irrigators to use on private land within the reservation. At the request of the tribes, District Judge Jeffrey Sherlock of Helena issued a temporary restraining order which has so far kept the hearing from happening.

Tribal attorneys argue that the agency is prohibited from issuing any new permits or approving changes on existing uses because, in part, tribal water rights have not yet been worked out. Related matters have been argued before the state’s high court twice before, with two winning rulings for the tribes.

“The law hasn’t changed,” the tribes argue in their application for a full injunction against the state. “DNRC is trying to do something the court has repeatedly told them they cannot do.”

In the first case, decided in 1996, the Supreme Court ruled that the state had to wait until tribal water adjudication was complete. Citing federal law and earlier state decisions, justices told the DNRC to quit issuing permits and to stop changing others. Records show the DNRC went for a political fix, though, and persuaded Sen. Lorents Grosfield (R-Big Timber) to carry a bill during the 1997 Legislature to negate the ruling. After the bill was signed by then Gov. Marc Racicot, the agency made plans to start issuing permits again, which in turn prompted new legal action from the tribes.

In 1999, the Montana Supreme Court weighed in again, this time ruling that Grosfield’s amendments to the state’s Water Use Act were essentially impotent, and that the agency was still precluded from processing permits. In response to the latest lawsuit, however, DNRC lead counsel Don MacIntyre contends the legislative mandate still rules, and that the agency can alter an existing water use if it sees fit. “A change in use is not the granting of a new water right,” MacIntyre argues. A hearing on the proposed injunction was scheduled Wednesday.

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