In the Matter of the Adjudication of the Existing Rights to the Use of All the Water, Both Surface and Underground, Within the Missouri River Drainage Area, Including All Tributaries of the Missouri River in Broadwater, Cascade, Jefferson and Lewis and Clark Counties, Montana (Basin 41I)

Summary

The Supreme Court of Montana reviewed the validity of pre-1973 water-right claims for fish, wildlife, and recreation uses in the Missouri River basin. The court overruled the contrary language in Bean Lake, holding that such uses were recognized as beneficial uses before 1973 and that a physical diversion is not required when diversion is unnecessary to apply water to the beneficial use. The court exercised supervisory control over the Montana Water Court to resolve the legal issues and clarify the treatment of the claims.

Holdings

1. The Supreme Court could treat the matter as a continuation of the Bean Lake controversy and exercise general supervisory control over the Water Court because the case presented purely legal issues of statewide importance and resolving them would promote judicial economy and clarify Montana law.
2. Before 1973, Montana recognized fish, wildlife, and recreation uses as beneficial uses capable of supporting water appropriations. Bean Lake was overruled to the extent it held otherwise.
3. Montana's prior-appropriation doctrine did not absolutely require a physical diversion before 1973. An instream or inlake appropriation may be valid when diversion is not physically necessary to achieve the intended beneficial use, provided the facts and circumstances establish the appropriator's intent and notice.
4. The Water Court had authority to include the Bean Lake remark because it merely identified a potential legal issue and did not decide the validity of the claims or adopt an impermissible substantive policy.

Questions Presented

1. Whether the Supreme Court should accept jurisdiction and exercise supervisory control despite DFWP's failure to object to the Water Master's report within the applicable objection period.
2. Whether Bean Lake correctly held that Montana law before 1973 did not recognize appropriation rights for fish, wildlife, and recreation uses except through a Murphy right statute.
3. Whether a physical diversion is required for a valid pre-1973 appropriation when diversion is not physically necessary to apply the water to a beneficial use.
4. Whether the Water Court's use of the Bean Lake remark violated the Supreme Court's Water Right Claim Examination Rules.

Disposition

other