Hibbs, Matthew

English

University of Montana School of Law

Public Land and Resources Law Review
Volume 29
Interpreting the Basin Closure Law in Montana:
The Permissibility of "Prestream Capture" --
Montana Trout Unlimited v. Montana Department
of Natural Resources and Conservation
Matthew Hibbs
Follow this and additional works at: https://scholarship.law.umt.edu/plrlr
Part of the Law Commons
This Case Summary is brought to you for free and open access by The Scholarly Forum @ Montana Law. It has been accepted for inclusion in Public
Land and Resources Law Review by an authorized editor of The Scholarly Forum @ Montana Law.
Recommended Citation
29 Pub. Land & Resources L. Rev. 195 (2008)
Interpreting the Basin Closure Law in Montana: The Permissibility of
"Prestream Capture"
Montana Trout Unlimited v. Montana Department of Natural Resources
and Conservation, 2006 MT 72, 331 Mont. 483, 133 P.3d 224
Matthew Hibbs
In Mont. Trout Unlimited v. Mont. Dept. of Nat. Resources and Conserv.,
the Montana Supreme Court clarified when the Montana Department of
Natural Resources and Conservation ("DNRC") may process an application
for groundwater under the Upper Missouri River basin moratorium ("the
Basin Closure Law").' The Court interpreted the Basin Closure Law to
forbid the DNRC from processing applications for groundwater which
would result in either "induced infiltration" or "prestream capture" of
groundwater.2 As a result, the Court helped to ensure the fulfillment of the
water rights of senior appropriators in the basin by better protecting the
surface flow of the Upper Missouri River from depletion.
In 1973, in response to judicial complexities arising from an increase in
appropriators claiming water rights in Montana ("the state"), the Montana
legislature ("the legislature") revised the state's dated water appropriation
system.3 The legislature directed all holders of claims to existing water
rights to file their claims with DNRC.4 The Montana Water Use Act then
required DNRC to determine priority dates for the filed claims and inspect
conflicts pertaining to the priority of the claims.5 Water courts were estab-
lished to adjudicate disputed claims, and new claimants were allowed to
establish water rights by filing applications with DNRC.6
As the new appropriation system developed, it became apparent there
were significantly more claims to water than available water in many of the
state's river basins.7 Accordingly, the legislature enacted a moratorium on
new water right applications in over-appropriated basins. 8 One such mora-
torium, the Basin Closure Law, forbade DNRC from "process[ing] or
grant[ing]... application[s] for permit[s] to appropriate water... within the
Upper Missouri River basin until ... final decrees [had] been issued." 9 The
legislature made an exception for new applications to appropriate "water
that is beneath the land surface or beneath the bed of a stream, lake, reser-
I. 133 P.3d 224, 232 (2006).
2. Id.
3. Id. at 226; Mont. Code Ann. § 85-2-101 et. seq. (1973).
4. Mont. Trout Unlimited, 133 P.3d at 226.
5. Id.
6. Id.
7. Id.
8. Id.
9. Id.
PUBLIC LAND & RESOURCES LAW REVIEW
voir, or other body of surface water and that is not immediately or directly
connected to surface water" ("the groundwater exception"). ° However, the
legislature failed to define what constituted an immediate or direct connec-
tion to surface water."
Groundwater pumping depletes surface water flow via "induced infiltra-
tion" and "prestream capture. ' '12 Induced infiltration refers to groundwater
pumping that pulls surface water directly from a stream toward a well.
13
Prestream capture refers to groundwater pumping that reduces surface flow
by intercepting groundwater that otherwise would have entered a stream.
14
DNRC interpreted the Basin Closure Law as a prohibition of the process-
ing of applications permitting groundwater wells to "pull surface water di-
rectly from a stream or other source of surface water."15 This interpretation
protected the Upper Missouri River basin's surface flow from induced infil-
tration but failed to protect it against the effects of prestream capture. 16 As
a result, DNRC began processing new groundwater applications which
could potentially deplete the Upper Missouri River basin's surface flow via
prestream capture, "before making a threshold determination that the appli-
cations fell within [the groundwater exception] to the Basin Closure
Law."' 7
Accordingly, Montana Trout Unlimited ("Trout Unlimited") brought ac-
tion against DNRC in the Lewis and Clark County District Court ("the Dis-
trict Court").18 Trout Unlimited "sought a writ of mandate to require DNRC
to refrain from processing groundwater applications on the Upper Missouri
River basin until it had made the threshold determination that the ground-
water [sought to be appropriated] was not immediately or directly con-
nected to surface water."'19 Trout Unlimited also challenged DNRC's inter-
pretation of the "immediately or directly connected to surface water" lan-
guage in the Basin Closure Law.2°
Ultimately, the parties entered a stipulation wherein DNRC agreed to
make a threshold determination of whether an application for a groundwater
permit was for the appropriation of groundwater immediately or directly
connected to surface water.21 However, DNRC adhered to its interpretation
of the Basin Closure Law, formally defining "immediately or directly con-
nected to surface water" as "groundwater which, when pumped at a flow
10. Id. at 231.
11. Id. at 227.
12. Id. at 226-227.
13. Id. at 227.
14. Id.
15. Id.
16. Id.
17. Id.
18. Id. at 224.
19. Id. at 227.
20. Id.
21. Id.
[Vol. 29
2008] THE PERMISSIBILITY OF "PRESTREAM CAPTURE" 197
rate requested in the application and during the proposed period of diver-
sion, induces surface water infiltration. 2 2 Accordingly, Trout Unlimited
sought declaratory judgment that DNRC's interpretation of the Basin Clo-
sure Law contradicted the law's clear statutory language.23
The District Court granted DNRC summary judgment, holding Trout
Unlimited failed to exhaust its administrative remedies before bringing the
action, and the court was required to defer to DNRC's interpretation of the
Basin Closure Law as "the definitions and methods involved in processing
water use applications lie within DNRC's discretion. 24  Subsequently,
Trout Unlimited appealed to the Montana Supreme Court.25
On appeal, the first issue regarded "whether Trout Unlimited was re-
quired to exhaust its administrative remedies before seeking judicial relief
[from DNRC's decision to process applications for the appropriation of
groundwater alleged to be immediately or directly connected to the Upper
Missouri River basin's surface water]. 26 In an earlier case, Wiser v. St.
Dept. of Commerce, the Court had held "if a statute provides for administra-
tive relief, an aggrieved party must seek that relief from the administrative
body ... before seeking judicial relief.' 27 Accordingly, the District Court
held Trout Unlimited was required to object to an approved groundwater
application with DNRC, and thus create a contested case proceeding, before
pursuing judicial relief.28 However, in DeVoe v. Dept. of Revenue, the
Montana Supreme Court held "we will not require exhaustion of adminis-
trative remedies.., when resort[ing] to an administrative remedy would be
futile" ("the futility exception"). 29 Accordingly, Trout Unlimited argued
that waiting to contest DNRC's approval of groundwater applications was
futile, and thus not required, as such action "flout[ed] the leigislature's in-
tent" behind the Basin Closure Law, which forbids "the processing of ap-
plications for groundwater that is immediately or directly connected to sur-
face water.",
30
In constructing a statute such as the Basin Closure Law, the Court is
"simply to ascertain and declare what is in terms or in substance contained
therein; [the Court is] not to omit what has been inserted or insert what has
been omitted."' 1 Therefore, because the Basin Closure Law expressly pro--
hibited DNRC from processing new groundwater applications for the ap-
propriation of groundwater immediately or directly connected to the Upper
22. Id.
23. Id.
24. Id. at 228.
25. Id.
26. Id.
27. 129 P.3d 133, 130(2006).
28. Montana Trout Unlimited, 133 P.3d at 228.
29. 866 P.2d 228, 238 (1993).
30. Montana Trout Unlimited, 133 P.3d at 228.
31. Id. at 229.
PUBLIC LAND & RESOURCES LAW REVIEW
Missouri River basin's surface water, the Court determined Trout Unlimited
could seek judicial relief from DNRC's decision to process an application
without waiting for DNRC to approve the application.32 Holding otherwise
would be "ineffective in preventing immediate harm to [the Upper Missouri
River basin's] surface water" and would force senior appropriators in the
basin to "defend their water rights every time a new applicant [sought] to
appropriate [groundwater] in the basin. 33 As a result, the Court decided
"requir[ing] Trout Unlimited or other objectors to wait for DNRC to proc-
ess applications, the very act prohibited by [the Basin Closure Law,] ...
[before seeking judicial relief, was] futile." 34 Consequently, the Court held
"the futility exception to the exhaustion requirement relieve[d] Trout
Unlimited from having to exhaust [its] administrative remedies before seek-
ing judicial relief., 35
The second issue on appeal was "whether DNRC's interpretation of
'immediately or directly connected to surface water' in the Basin Closure
Law [was] correct as a matter of law."36 In determining whether an
agency's interpretation of statutory language was correct as a matter of law,
courts evaluate whether the interpretation was consistent with the legisla-
ture's intent behind enacting the statute.37 Trout Unlimited contended be-
cause DNRC's interpretation of the Basin Closure Law failed to recognize
the impact of prestream capture of tributary groundwater on the Upper Mis-
souri River basin's surface flow, it was inconsistent with the legislature's
intent and incorrect as a matter of law.38
DNRC argued its statutory interpretation was entitled to deference and
respect.
39
The Court rejected DNRC's contention that its interpretation was entitled
to deference because DNRC's interpretation of the Basin Closure Law had
not yet "stood unchallenged for a considerable length of time, thereby creat-
ing reliance in the public and those having an interest in the interpretation
of the law. '4°
DNRC's own hydrogeologist conceded that "prestream capture of tribu-
tary groundwater ... has a more significant and longer lasting impact [on
surface flows] than does induced infiltration." The Court concluded
DNRC's interpretation of the Basin Closure Law conflicted with the statute
and "[did] not provide sufficient protections to reasonably effectuate its
32. Id.
33. Id. at 230.
34. Id.
35. Id.
36. Id. at231.
37. Id.
38. Id.
39. Id.
40. Id.
[Vol. 29
2008] THE PERMISSIBILITY OF "PRESTREAM CAPTURE" 199
purpose."41 The Basin Closure Law was enacted to protect the water rights
of senior appropriators in the Upper Missouri River basin by ensuring a
sufficient surface flow remained in the basin. a Accordingly, DNRC's in-
terpretation, which failed to protect surface flow against the effects of pre-
stream capture, was "in direct contravention of the legislature's intent" be-
hind the Basin Closure Law.4 3 As a result, the Court reversed the District
Court's decision and remanded the case for further proceedings consistent
with the majority opinion.44
Chief Justice Karla M. Gray dissented from the majority opinion and was
joined by Justice Jim Rice.a5 Chief Justice Gray contended the majority
erred in concluding Trout Unlimited need not exhaust its administrative
remedies before seeking judicial relief.46 In her opinion, the Basin Closure
Law's prohibition against processing applications did not apply to applica-
tions for permits to appropriate groundwater.47 Accordingly, Chief Justice
Gray agreed with the District Court that Trout Unlimited was required to
object to an approved groundwater application with DNRC, and thus create
a contested case proceeding, before pursuing judicial relief.4 Similarly,
Chief Justice Gray contended exhausting these procedures was not futile
because the processing of groundwater applications, upon which the con-
tested case proceedings would be based, was not prohibited by the Basin
Closure Law.49
Justice John Warner specially concurred with the majority opinion. 0
Justice Warner agreed with the dissent that the Basin Closure Law's prohi-
bition against processing applications did not apply to applications for per-
mits to appropriate groundwater. 5' However, he contended water immedi-
ately or directly connected to surface water was "simply not groundwa-
ter.",5 2 Accordingly, Justice Warner argued DNRC was required to process
every application for a new appropriation of alleged groundwater in order
"to determine if the proposed appropriation [was] truly for groundwater or
whether the water ... [was] actually connected to surface water, either im-
mediately or directly. ' 53 Further, Justice Warner agreed with the majority
that DNRC's interpretation of "immediately or directly connected to sur-
41. Id. at 232.
42. Id.
43. Id.
44. Id.
45. Id. at 233 (Gray, C.J., dissenting).
46. Id.
47. Id.
48. Id. at 234.
49. Id. at 235.
50. Id. at 235. (Warner, J., concurring).
51. Id.
52. Id.
53. Id. at 236.
PUBLIC LAND & RESOURCES LAW REVIEW
face water" erroneously failed to "account for impact to surface flow
caused by prestream capture of tributary groundwater." 54 Accordingly,
Justice Warner contended the District Court, upon remand, should "exam-
ine the record concerning the application in question, in the context of this
Court's correction of DNRC rules and policy, the Administrative Procedure
Act, and the law ... [and] either remand to DNRC for further hearings or
decide the matter itself.
'
,
55
CONCLUSION
Overall, the decision in Mont. Trout Unlimited was an important step in
further defining when an application for the appropriation of groundwater
may be processed under the Basin Closure Law. The Court held DNRC
could process applications for the appropriation of groundwater that was
not immediately or directly connected to the Upper Missouri River basin's
surface water via induced infiltration or prestream capture. As a result, the
Court better protected the surface flow of the Upper Missouri River basin
from depletion and thus helped to ensure the fulfillment of the water rights
of senior appropriators in the basin.
However, the fact that the case was remanded to the District Court
should cause senior appropriators to remain concerned about the fulfillment
of their water rights. It is conceivable that the District Court will remand
the matter to DNRC in accordance with Justice Warner's concurrence. If
this happens, the rights of senior appropriators will once again be in the
hands of the DNRC, whose prior decisions regarding this matter suggest
that the senior appropriator's water rights are not beyond depletion. Like-
wise, DNRC could conceivably process and grant new groundwater appli-
cations for groundwater permits that would deplete the Upper Missouri
River basin's surface flow via prestream capture in the interim between the
Court's decision to remand the case and the District Court's final judgment.
Accordingly, while the water rights of senior appropriators in the Upper
Missouri River basin have been better protected by the Court's decision, the
protection provided does not guarantee that these appropriators' water
rights will be fulfilled.
54. Id.
55. Id.
200 [Vol. 29


Interpreting the Basin Closure Law in Montana: The Permissibility of  Prestream Capture  -- Montana Trout Unlimited v. Montana Department of Natural Resources and Conservation

University of Montana

Public Land & Resources Law Review Volume 29 Article 12 June 2008 Interpreting the Basin Closure Law in Montana: The Permissibility of "Prestream Capture" -- Montana Trout Unlimited v. Montana Department of Natural Resources and Conservation Matthew Hibbs Follow this and additional works at: https://scholarworks.umt.edu/plrlr  Part of the Law Commons Let us know how access to this document benefits you. Recommended Citation 29 Pub. Land & Resources L. Rev. 195 (2008) This Case Summary is brought to you for free and open access by ScholarWorks at University of Montana. It has been accepted for inclusion in Public Land & Resources Law Review by an authorized editor of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. Interpreting the Basin Closure Law in Montana: The Permissibility of"Prestream Capture"Montana Trout Unlimited v. Montana Department of Natural Resourcesand Conservation, 2006 MT 72, 331 Mont. 483, 133 P.3d 224Matthew HibbsIn Mont. Trout Unlimited v. Mont. Dept. of Nat. Resources and Conserv.,the Montana Supreme Court clarified when the Montana Department ofNatural Resources and Conservation ("DNRC") may process an applicationfor groundwater under the Upper Missouri River basin moratorium ("theBasin Closure Law").' The Court interpreted the Basin Closure Law toforbid the DNRC from processing applications for groundwater whichwould result in either "induced infiltration" or "prestream capture" ofgroundwater.2 As a result, the Court helped to ensure the fulfillment of thewater rights of senior appropriators in the basin by better protecting thesurface flow of the Upper Missouri River from depletion.In 1973, in response to judicial complexities arising from an increase inappropriators claiming water rights in Montana ("the state"), the Montanalegislature ("the legislature") revised the state's dated water appropriationsystem.3 The legislature directed all holders of claims to existing waterrights to file their claims with DNRC.4 The Montana Water Use Act thenrequired DNRC to determine priority dates for the filed claims and inspectconflicts pertaining to the priority of the claims.5 Water courts were estab-lished to adjudicate disputed claims, and new claimants were allowed toestablish water rights by filing applications with DNRC.6As the new appropriation system developed, it became apparent therewere significantly more claims to water than available water in many of thestate's river basins.7 Accordingly, the legislature enacted a moratorium onnew water right applications in over-appropriated basins. 8 One such mora-torium, the Basin Closure Law, forbade DNRC from "process[ing] orgrant[ing]... application[s] for permit[s] to appropriate water... within theUpper Missouri River basin until ... final decrees [had] been issued." 9 Thelegislature made an exception for new applications to appropriate "waterthat is beneath the land surface or beneath the bed of a stream, lake, reser-I. 133 P.3d 224, 232 (2006).2. Id.3. Id. at 226; Mont. Code Ann. § 85-2-101 et. seq. (1973).4. Mont. Trout Unlimited, 133 P.3d at 226.5. Id.6. Id.7. Id.8. Id.9. Id.PUBLIC LAND & RESOURCES LAW REVIEWvoir, or other body of surface water and that is not immediately or directlyconnected to surface water" ("the groundwater exception"). ° However, thelegislature failed to define what constituted an immediate or direct connec-tion to surface water."Groundwater pumping depletes surface water flow via "induced infiltra-tion" and "prestream capture. ' '12 Induced infiltration refers to groundwaterpumping that pulls surface water directly from a stream toward a well.13Prestream capture refers to groundwater pumping that reduces surface flowby intercepting groundwater that otherwise would have entered a stream.14DNRC interpreted the Basin Closure Law as a prohibition of the process-ing of applications permitting groundwater wells to "pull surface water di-rectly from a stream or other source of surface water."15 This interpretationprotected the Upper Missouri River basin's surface flow from induced infil-tration but failed to protect it against the effects of prestream capture. 16 Asa result, DNRC began processing new groundwater applications whichcould potentially deplete the Upper Missouri River basin's surface flow viaprestream capture, "before making a threshold determination that the appli-cations fell within [the groundwater exception] to the Basin ClosureLaw."' 7Accordingly, Montana Trout Unlimited ("Trout Unlimited") brought ac-tion against DNRC in the Lewis and Clark County District Court ("the Dis-trict Court").18 Trout Unlimited "sought a writ of mandate to require DNRCto refrain from processing groundwater applications on the Upper MissouriRiver basin until it had made the threshold determination that the ground-water [sought to be appropriated] was not immediately or directly con-nected to surface water."'19 Trout Unlimited also challenged DNRC's inter-pretation of the "immediately or directly connected to surface water" lan-guage in the Basin Closure Law.2°Ultimately, the parties entered a stipulation wherein DNRC agreed tomake a threshold determination of whether an application for a groundwaterpermit was for the appropriation of groundwater immediately or directlyconnected to surface water.21 However, DNRC adhered to its interpretationof the Basin Closure Law, formally defining "immediately or directly con-nected to surface water" as "groundwater which, when pumped at a flow10. Id. at 231.11. Id. at 227.12. Id. at 226-227.13. Id. at 227.14. Id.15. Id.16. Id.17. Id.18. Id. at 224.19. Id. at 227.20. Id.21. Id.[Vol. 292008] THE PERMISSIBILITY OF "PRESTREAM CAPTURE" 197rate requested in the application and during the proposed period of diver-sion, induces surface water infiltration. 2 2 Accordingly, Trout Unlimitedsought declaratory judgment that DNRC's interpretation of the Basin Clo-sure Law contradicted the law's clear statutory language.23The District Court granted DNRC summary judgment, holding TroutUnlimited failed to exhaust its administrative remedies before bringing theaction, and the court was required to defer to DNRC's interpretation of theBasin Closure Law as "the definitions and methods involved in processingwater use applications lie within DNRC's discretion. 24  Subsequently,Trout Unlimited appealed to the Montana Supreme Court.25On appeal, the first issue regarded "whether Trout Unlimited was re-quired to exhaust its administrative remedies before seeking judicial relief[from DNRC's decision to process applications for the appropriation ofgroundwater alleged to be immediately or directly connected to the UpperMissouri River basin's surface water]. 26 In an earlier case, Wiser v. St.Dept. of Commerce, the Court had held "if a statute provides for administra-tive relief, an aggrieved party must seek that relief from the administrativebody ... before seeking judicial relief.' 27 Accordingly, the District Courtheld Trout Unlimited was required to object to an approved groundwaterapplication with DNRC, and thus create a contested case proceeding, beforepursuing judicial relief.28 However, in DeVoe v. Dept. of Revenue, theMontana Supreme Court held "we will not require exhaustion of adminis-trative remedies.., when resort[ing] to an administrative remedy would befutile" ("the futility exception"). 29 Accordingly, Trout Unlimited arguedthat waiting to contest DNRC's approval of groundwater applications wasfutile, and thus not required, as such action "flout[ed] the leigislature's in-tent" behind the Basin Closure Law, which forbids "the processing of ap-plications for groundwater that is immediately or directly connected to sur-face water.",30In constructing a statute such as the Basin Closure Law, the Court is"simply to ascertain and declare what is in terms or in substance containedtherein; [the Court is] not to omit what has been inserted or insert what hasbeen omitted."' 1 Therefore, because the Basin Closure Law expressly pro--hibited DNRC from processing new groundwater applications for the ap-propriation of groundwater immediately or directly connected to the Upper22. Id.23. Id.24. Id. at 228.25. Id.26. Id.27. 129 P.3d 133, 130(2006).28. Montana Trout Unlimited, 133 P.3d at 228.29. 866 P.2d 228, 238 (1993).30. Montana Trout Unlimited, 133 P.3d at 228.31. Id. at 229.PUBLIC LAND & RESOURCES LAW REVIEWMissouri River basin's surface water, the Court determined Trout Unlimitedcould seek judicial relief from DNRC's decision to process an applicationwithout waiting for DNRC to approve the application.32 Holding otherwisewould be "ineffective in preventing immediate harm to [the Upper MissouriRiver basin's] surface water" and would force senior appropriators in thebasin to "defend their water rights every time a new applicant [sought] toappropriate [groundwater] in the basin. 33 As a result, the Court decided"requir[ing] Trout Unlimited or other objectors to wait for DNRC to proc-ess applications, the very act prohibited by [the Basin Closure Law,] ...[before seeking judicial relief, was] futile." 34 Consequently, the Court held"the futility exception to the exhaustion requirement relieve[d] TroutUnlimited from having to exhaust [its] administrative remedies before seek-ing judicial relief.,35The second issue on appeal was "whether DNRC's interpretation of'immediately or directly connected to surface water' in the Basin ClosureLaw [was] correct as a matter of law."36 In determining whether anagency's interpretation of statutory language was correct as a matter of law,courts evaluate whether the interpretation was consistent with the legisla-ture's intent behind enacting the statute.37 Trout Unlimited contended be-cause DNRC's interpretation of the Basin Closure Law failed to recognizethe impact of prestream capture of tributary groundwater on the Upper Mis-souri River basin's surface flow, it was inconsistent with the legislature'sintent and incorrect as a matter of law.38DNRC argued its statutory interpretation was entitled to deference andrespect.39The Court rejected DNRC's contention that its interpretation was entitledto deference because DNRC's interpretation of the Basin Closure Law hadnot yet "stood unchallenged for a considerable length of time, thereby creat-ing reliance in the public and those having an interest in the interpretationof the law. '4°DNRC's own hydrogeologist conceded that "prestream capture of tribu-tary groundwater ... has a more significant and longer lasting impact [onsurface flows] than does induced infiltration." The Court concludedDNRC's interpretation of the Basin Closure Law conflicted with the statuteand "[did] not provide sufficient protections to reasonably effectuate its32. Id.33. Id. at 230.34. Id.35. Id.36. Id. at231.37. Id.38. Id.39. Id.40. Id.[Vol. 292008] THE PERMISSIBILITY OF "PRESTREAM CAPTURE" 199purpose."41 The Basin Closure Law was enacted to protect the water rightsof senior appropriators in the Upper Missouri River basin by ensuring asufficient surface flow remained in the basin. a Accordingly, DNRC's in-terpretation, which failed to protect surface flow against the effects of pre-stream capture, was "in direct contravention of the legislature's intent" be-hind the Basin Closure Law.4 3 As a result, the Court reversed the DistrictCourt's decision and remanded the case for further proceedings consistentwith the majority opinion.44Chief Justice Karla M. Gray dissented from the majority opinion and wasjoined by Justice Jim Rice.a5 Chief Justice Gray contended the majorityerred in concluding Trout Unlimited need not exhaust its administrativeremedies before seeking judicial relief.46 In her opinion, the Basin ClosureLaw's prohibition against processing applications did not apply to applica-tions for permits to appropriate groundwater.47 Accordingly, Chief JusticeGray agreed with the District Court that Trout Unlimited was required toobject to an approved groundwater application with DNRC, and thus createa contested case proceeding, before pursuing judicial relief.4 Similarly,Chief Justice Gray contended exhausting these procedures was not futilebecause the processing of groundwater applications, upon which the con-tested case proceedings would be based, was not prohibited by the BasinClosure Law.49Justice John Warner specially concurred with the majority opinion. 0Justice Warner agreed with the dissent that the Basin Closure Law's prohi-bition against processing applications did not apply to applications for per-mits to appropriate groundwater. 5' However, he contended water immedi-ately or directly connected to surface water was "simply not groundwa-ter.",5 2 Accordingly, Justice Warner argued DNRC was required to processevery application for a new appropriation of alleged groundwater in order"to determine if the proposed appropriation [was] truly for groundwater orwhether the water ... [was] actually connected to surface water, either im-mediately or directly. ' 53 Further, Justice Warner agreed with the majoritythat DNRC's interpretation of "immediately or directly connected to sur-41. Id. at 232.42. Id.43. Id.44. Id.45. Id. at 233 (Gray, C.J., dissenting).46. Id.47. Id.48. Id. at 234.49. Id. at 235.50. Id. at 235. (Warner, J., concurring).51. Id.52. Id.53. Id. at 236.PUBLIC LAND & RESOURCES LAW REVIEWface water" erroneously failed to "account for impact to surface flowcaused by prestream capture of tributary groundwater." 54 Accordingly,Justice Warner contended the District Court, upon remand, should "exam-ine the record concerning the application in question, in the context of thisCourt's correction of DNRC rules and policy, the Administrative ProcedureAct, and the law ... [and] either remand to DNRC for further hearings ordecide the matter itself.',55CONCLUSIONOverall, the decision in Mont. Trout Unlimited was an important step infurther defining when an application for the appropriation of groundwatermay be processed under the Basin Closure Law. The Court held DNRCcould process applications for the appropriation of groundwater that wasnot immediately or directly connected to the Upper Missouri River basin'ssurface water via induced infiltration or prestream capture. As a result, theCourt better protected the surface flow of the Upper Missouri River basinfrom depletion and thus helped to ensure the fulfillment of the water rightsof senior appropriators in the basin.However, the fact that the case was remanded to the District Courtshould cause senior appropriators to remain concerned about the fulfillmentof their water rights. It is conceivable that the District Court will remandthe matter to DNRC in accordance with Justice Warner's concurrence. Ifthis happens, the rights of senior appropriators will once again be in thehands of the DNRC, whose prior decisions regarding this matter suggestthat the senior appropriator's water rights are not beyond depletion. Like-wise, DNRC could conceivably process and grant new groundwater appli-cations for groundwater permits that would deplete the Upper MissouriRiver basin's surface flow via prestream capture in the interim between theCourt's decision to remand the case and the District Court's final judgment.Accordingly, while the water rights of senior appropriators in the UpperMissouri River basin have been better protected by the Court's decision, theprotection provided does not guarantee that these appropriators' waterrights will be fulfilled.54. Id.55. Id.200 [Vol. 29

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Interpreting the Basin Closure Law in Montana: The Permissibility of Prestream Capture -- Montana Trout Unlimited v. Montana Department of Natural Resources and Conservation

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