general adjudication of water rights, claimed autocratic 

 control over all adjudication activity and preferred to adopt 

 the administrative rules as judicial rules. This issue went 

 before the Montana Supreme Court. On March 31, 1986, the 

 Supreme Court decided the claim examination procedures were 

 judicial in nature and so reserved for the Supreme Court. On 

 that basis, the Supreme Court adopted the rules with a 

 notice and review similar to the MAPA process. 



The DNRC, working with the Water Court, submitted a 

 draft of the rules to the Supreme Court for adoption on April 

 30, 1986. The Supreme Court issued these Water Rights Claim 

 Examination Rules with an effective July 15, 1987, date for 

 implementation. A review period until March 15, 1988, was 

 provided to allow comment and suggestion on the application 

 and structure of the rules. A final ruling is pending. 



The Supreme Court's Water Rights Claims Examination 

 Rules are expected to provide a markedly improved opportunity 

 for an equitable and thorough claims examination. The rules 

 are intended to provide a standard format for the DNRC to 

 provide assistance to the Water Court. The new rules will 

 also improve the consistency of claims examination. The 

 Supreme Court's opinion adopting the examination rules, 

 however, did not decide due process and separation of 

 judicial and executive power concerns. The rules do not 

 address the consistency of previously issued temporary 

 preliminary decrees with the new standards. 



Following adoption of the rules by the Montana Supreme 

 Court, several parties, such as the U. S. Department of 

 Justice, the Montana Department of Fish, Wildlife and Parks, 

 and the Montana Power Company, asked the Water Court to have 

 the DNRC prepare reports comparing the former claims 

 examination with the recently adopted Supreme Court proce- 

 dures, and in some cases to order actual reexaminations. The 

 Water Court denied requests for reexamination and took 

 requests for comparison reports under advisement but ordered 

 none. The parties feel that the new rules may afford a 

 factually prudent examination that is more consistent, 

 thorough, equitable, and accurate than the previous Water 

 Court verification procedures. 



At the current rate of claims examination and with the 

 current level of staffing, the DNRC believes that it will 

 require until the year 2000 to examine the remaining non- 

 decreed claims within the Clark Fork drainage. In 1987, the 

 DNRC estimated that it would take four and one-half years to 

 reexamine the Clark Fork drainage claims previously entered 

 into temporary preliminary decrees, using procedures 

 consistent with the new examination rules (Larry Holman, 

 DNRC, Helena, personal communication, April 1988) . 



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