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In re Crow Water Compact

Supreme Court of Montana

December 24, 2014

IN RE THE CROW WATER COMPACT,
v.
MONTANA WATER COURT, CHIEF JUDGE RUSS McELYEA, Respondent. IN THE MATTER OF THE ADJUDICATION OF EXISTING AND RESERVED RIGHTS TO THE USE OF WATER, BOTH SURFACE AND UNDERGROUND, OF THE CROW TRIBE OF INDIANS IN THE STATE OF MONTANA IN THE MATTER OF THE ADJUDICATION OF THE EXISTING AND RESERVED WATER RIGHTS TO THE USE OF WATER, BOTH SURFACE AND UNDERGROUND, OF THE CROW TRIBE OF INDIANS OF THE STATE OF MONTANA, Allottees-Petitioners,

ORDER

A group of allottees (hereinafter, "Allottees") of lands on the Crow Indian Reservation are the appellants in Cause No. DA 14-0567 and the petitioners in Cause No. OP 14-0769. Cause No. DA 14-0567 is an interlocutory appeal of the Montana Water Court's July 30, 2014 order denying Allottees' objections to the Water Court's preliminary decree approving the Crow Water Compact. In Cause No. OP 14-0769, the Allottees ask us to exercise our power of supervisory control over the Water Court in that court's ongoing proceeding. Specifically, the Allottees ask us to direct the Water Court to stay its proceeding while the United States District Court for the District of Montana reviews a complaint the Allottees have filed against the U.S. Bureau of Indian Affairs concerning their water rights and claims for water rights.

At our invitation, the State of Montana, the United States, and the Water Court have filed responses to the petition for writ of supervisory control. In addition, following the filing of their petition for a writ of supervisory control, the Allottees filed a motion to dismiss their interlocutory appeal from the Water Court without prejudice. The Crow Tribe, the State of Montana, and the United States have filed written objections to the motion to dismiss the interlocutory appeal.

Supervisory control is an extraordinary remedy that sometimes is justified when urgency or emergency factors make the normal appeal process inadequate, the case involves purely legal questions and, in a civil case such as this one, the other court is proceeding under a mistake of law and causing a gross injustice or constitutional issues of state-wide importance are involved. M. R. App. P. 14(3).

In this case, it is abundantly clear that the Allottees have a remedy of appeal from the Water Court's July 30 order dismissing their objections. Section 85-2-235(3), MCA, allows a party who participated in a matter before the Water Court to appeal "an interlocutory ruling . . . upon a question of law." As indicated above, the Allottees have exercised that right. This Court may consider their appeal notwithstanding the pendency of other objections before the Water Court.

Allottees have failed to convince us that, without a stay of the Water Court proceeding while their federal claims are reviewed, their right of appeal will be inadequate. The Allottees claim that entry of a final decree by the Water Court approving the Crow Water Compact will trigger a waiver and release of claims on behalf of Allottees and they will lose their right to bring any legal challenges to the Compact. However, the entry of a final judgment by the Montana Water Court approving the Crow Water Compact is only one of several events that must occur before the statutory enforceability date of the Compact. See Crow Tribe Water Rights Settlement Act of 2010, Pub. L. 111-291, §§ 403(7), 410(e)(1), 124 Stat. 3097, 3098. There is no danger that the releases and waivers in the Compact will take effect and prejudice the Allottees before an appeal to this Court from any final Water Court judgment is complete. The federal Settlement Act expressly provides for the opportunity for ordinary appeal before any waivers take effect. Further, as "the United States Supreme Court reserves the right to review state court adjudications of Indian reserved water rights[, ]" any decision by this Court on appeal from the Water Court will be subject to further potential appeal before the matter is finally concluded. State ex rel. Greely v. Confederated Salish and Kootenai Tribes, 219 Mont. 76, 95-96, 712 P.2d 754, 766 (1985).

Because the Allottees have available adequate remedies of appeal, we conclude that supervisory control is not justified.

Finally, we conclude that the interlocutory appeal should not be dismissed without prejudice. The Montana Legislature approved the Crow Water Compact in 1999. The Water Court has scheduled a trial on remaining objections in February 2015. As the United States points out, there are grounds for avoiding unnecessary delay. The Settlement Act contains an automatic repeal if the Secretary of the Interior does not publish a statement of findings "not later than March 31, 2016, or an extended date agreed to by the Tribe and the Secretary after reasonable notice to the State of Montana." The settling parties thus have an interest in the prompt resolution of direct appeals.

Therefore,

IT IS ORDERED that the petition for a writ of supervisory control in Cause No. OP 14-0769 is DENIED.

IT IS FURTHER ORDERED that the Allottees' motion to dismiss their appeal without prejudice in Cause No. DA 14-0567 is DENIED. The Allottees are directed to file their opening brief on appeal within 30 days of the date of this Order or face dismissal of the appeal with prejudice to their right to seek further appeal of the Water Court's July 30, 2014 order dismissing their objections.

IT IS FURTHER ORDERED that the Allottees' request to file a reply brief in support of their motion to dismiss the appeal in Cause No. DA 14-0567 is DENIED.

The Clerk is directed to provide copies of this order to all counsel of record in both of the above-entitled actions and to Chief Judge Russ McElyea at the Montana Water Court.


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