In Re the Adjudication of the Existing Rights to the Use of All the Water

¶48 The public right urged by the Commission would be based on the

fact that the public had used the creek as a fishing stream and natural fish hatchery before DuPuy built his dam. ... Such a public right has never been declared in the case law of this state.

Paradise Rainbows v. Fish and Game Commission (1966), 148 Mont. 412, 419, 421 P.2d 717, 721.

¶49 In this appeal, the DFWP is asserting a pre-1973 water right claim for fish, wildlife and recreation purposes for appropriations involving a diversion or capture of water. Although the Court’s rationale in Scare Lake properly recognized that…