Salish-Kootenai say Montana is in contempt over water issues

HELENA, Mont. ? The Montana Supreme Court has set Nov. 13 for oral arguments in a case where the Confederated Salish and Kootenai Tribes say the state is in contempt of earlier rulings over Flathead Reservation water issues.

The latest skirmish with the Montana Department of Natural Resources and Conservation (DNRC) stems from a tribal petition filed in June that asks the high court to exert further control over the agency in the issuance of non-Indian water-use permits. The legal action was provoked when DNRC officials issued an administrative order earlier this year that would allow a Hot Springs-area man, Reginald C. Lang, to use groundwater from a reservation aquifer for commercial sale.

Court documents show department officials generally contend that groundwater within the reservation is not a valid part of tribal claims to federally reserved water rights, which are not yet quantified. The tribes told the Montana Reserved Water Compact Commission, which is attempting to help sort out the rights through negotiation, they have authority over all surface and groundwater on the 1.2 million-acre reservation.

Lang’s application for a use permit prompted DNRC lead attorney Don MacIntyre to ask the Montana Supreme Court earlier this year to ‘dissolve or modify’ a 1999 ruling the court made in favor of the tribes on related issues.

The 1999 ruling said a bill approved by the 1997 Legislature to override an even earlier high court decision over reservation water use 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.

MacIntyre argued that while the 1999 ruling indeed prohibits the agency from actually issuing new water-use permits for surface waters, it doesn’t preclude continued ‘processing’ of other permit applications and doesn’t include groundwater not ‘hydrologically connected’ to surface water supplies. DNRC officials contend Lang’s proposal involves such unconnected water.

The Supreme Court denied MacIntyre’s request in May and also noted that tribes have filed another lawsuit in Lewis and Clark District Court in Helena over a change-of-use authorization the state agency wants to give James and Katherine Axe, another reservation party.

In that lower court case, tribal attorneys John Carter and Dan Decker, as well as contract attorney Jim Goetz of Bozeman, argue the state is barred from tinkering with existing water-use permits because any alterations could adversely impact tribal water rights.

Judge Jeffrey Sherlock granted a preliminary injunction in July that prohibits the state from proceeding with the Axe application, at least until several jurisdictional questions are settled. Sherlock also refused to grant a request from the Flathead Joint Board of Control (JBC), a state-chartered, Flathead Reservation irrigator group mainly comprised of non-Indians, to officially intervene in the case. He said the organization’s interests are represented by the state.

Jon Metropoulos, a Helena attorney representing the JBC, argued unsuccessfully that irrigator water rights ‘are no less valid’ than those of the Salish and Kootenai Tribes, and that the group ‘has a right under the Montana Constitution to participate in legal proceedings affecting those rights.’ Sherlock said he would allow the JBC to file ‘friend of the court’ briefs, but nothing more.

Records show the Nov. 19 hearing before the Montana Supreme Court will focus on tribal charges that MacIntyre and other state officials, including DNRC co-counsels Tim Hall and Fred Robinson, should be held in contempt for allegedly ignoring earlier orders to stop processing new water-use applications and change-of-use requests.

In recent filings the tribes retracted the contempt allegations against Hall and Robinson after MacIntyre revealed he was the primary person giving legal advice to DNRC administrators. Nonetheless, court documents show Hall has complained that allegations apparently caused him to be removed from consideration to become the state’s chief water judge earlier this year.

‘I seriously question the timing and motives behind clouding my reputation before this court,’ he wrote, adding he wants tribal contract attorney Goetz sanctioned for filing a ‘frivolous and malicious’ contempt complaint.

On June 19, the high court, with Justice W. William Leaphart inexplicably recusing himself, ordered DNRC officials to freeze their approval of Lang’s water application, at least until the other pending matters are settled. For their part, DNRC officials say a ‘regulatory void’ exists on the reservation, and they should be allowed to control non-Indian water use, on a limited basis, ‘as a matter of sound resource management.’

In an affidavit, MacIntyre denied tribal claims the state wants to undermine tribal interests.

‘I am aware of no agenda of the department, much less the legal unit, to extend state jurisdiction in piecemeal fashion of Indian reserved water rights,’ he wrote, adding that Lang has shown the disputed groundwater to be ‘legally available.’

State officials also say they want the Supreme Court case settled by mediators, a concept that tribal attorneys so far opposed.

In a brief filed in August, the tribes say mediation would be improper because ‘it represents yet another attempt by (the state) to distance their contemptible act of issuing the Lang permit from the decisions of this court that forbade that act. ? Mediation would force the tribes to negotiate issues of jurisdiction and administration with the very DNRC officials who have proven fundamentally at odds with tribal rights.’

Ronan attorney Greg Ingraham, who represents Lang, told the court his client has sustained a loss of property rights because of the dispute.