Confederated Salish and Kootenai Tribes v. Clinch

I

¶46 I dissent from the Court’s Opinion for three reasons. First, I disagree with the majority’s conclusion that the DNRC is able to determine, before the Tribes’ reserved water rights have been quantified, whether a proposed change to an existing water use on the Reservation will “adversely affect” those rights (see § 85-2-402(2)(a), MCA). In my view, the District Court, which provided a cogent and thoughtful analysis of this issue, correctly concluded that the DNRC cannot make a determination that such a change should be authorized unless it knows what the protected rights of the Tribes are.