Flathead Compact Objectors: Notes from yesterday’s clarification conference call.

© 2024 Concerned Citizens of Western Montana

NOTE:  We are not attorneys, and the information in this article is not intended to give legal advice to anyone.  As an objector to the Flathead Compact, only you can decide what pathway you must follow to protect your specific interests and rights.

Yesterday the Water Court held a zoom call to clarify several questions that were asked by pro se objectors to the Flathead Water Compact pertaining to Case Management Order #4 and Its Order pertaining to Page Limits, both issued on June 6, 2024.

The objectors offered to submit a motion to the court for clarification if needed, but Judge Brown chose to set up a Conference call, held yesterday afternoon, to answer the questions asked and to offer other attendees of the meeting to ask questions pertaining to the orders.

Meeting Notes

Immediately we were told by the court that the call would not be recorded.  What a shame. 

For the hundreds of remaining objectors unable to attend a conference call on such short notice, particularly those whose only source for information from the court is via snail mail, they will not have the benefit of the Judge’s clarification.  The Judge also told us that he would not be amending the orders he clarified on the call.

Had the objectors known there would be no public record of the clarification of the court’s orders, we are sure they would have filed a motion, rather than submitting their request through the water court administration staff.

Had a motion been filed, the clarification the court provided would have been in the public record for the benefit of all objectors. 

Also, because the Judge very quickly went over the questions asked, our notes will very likely not do justice to all that was conveyed at the meeting, but here goes.

1. Question:  Can Objectors file Motions stating that the Compact is not Fair or  Adequate or do we have to wait to do that in response to the Parties’ Motion of Fairness and Adequacy?   Does not any Motion dealing with Adequacy and Fairness haves to include factual matters.  Yet, we are told in CMO # 3 on page  3, Paragraph 3, a. that such Motions are to be filed that does not require the Court to make “findings of fact”.  Yet much of the origins of the Compact deals with facts.  How can one deal with fairness without looking at discovery to find out factually through admissions and interrogatories what they believe the Compact authorizes them to do? 

Answer:   CMO 3 says this:  The “issues of law” deadline (July 10, 2024) in subpart 2.c is intended to apply to any motions filed by the Compacting Parties or Objectors that raise issues of law as to Compact adequacy or any other legal issue that does not require the Court to make findings of fact.

The July 10th deadline allows any party to file motions on fairness and adequacy and other issues of law that do not require the court to issue findings of fact.  Judge Brown communicated that the legal issues will be addressed first and the facts later at the trial.  

For purposes of such issues of law motions, the issues arise from the filings, your individual objection, questions within the decree itself, as well as applicable law.  

A conference is scheduled for September and at that time a hearing will be held to discuss the issue of discovery and whether or not there will be discovery.  

2. Question:  What does the Court mean by no party may file more than one motion and one supporting brief?  Does this negate filing any other motions dealing with issues of law? So, is the Court saying  no other motion dealing with issues of law will be allowed to be filed in the future. What about Motions for Discovery?  Is that not needed to make an adequate  Motion for the Fairness of the Compact, particularly discovery items filed such as Admissions and Interrogatories? 

Answer:   Judge Brown conveyed the fact that he was going to have to read every document, and for the purpose of efficiency he found it best to establish page limitations as well as the limits on the number of motions that could be submitted.  He cited that if multiple motions were allowed, objectors could use that as a way to work around the page count limitations.

He stated that it is these motions might shape the case, but the purpose of these motions are to clarify legal issues.  Judge Brown stated it was premature to talk about discovery. 

These are motions asking the court to rule on an issue of law.

3. Question:  What does the Court mean by duplicate filings? It says they will be rejected. Yet later in the order on page 4, under h. it says duplicate motions and briefs are discouraged.  Which is  it?  Is the duplicate Motions on page 4 dealing duplicate Motions of Joinder?   

Answer:  The Judge referenced many of the filings thus far included multiple submissions of what appeared to be the same document to the court without clarification by the objector, and placing a significant burden on the court to discern whether the multiple submissions were an objector error, or if there were revisions made to any of the documents submitted. 

He wanted to place objectors on notice that going forward, such duplicates will be rejected.  If an objector wants to revise a submission, they should clearly state so to the court when the revision is submitted.  If you make a mistake, okay, but tell the court.

The copying and pasting of other people’s documents was also discussed in the context of a joinder saying that objectors might want to consider a joinder, requiring a simple statement to the court that the objector 

4. Question:  Can 3  pro se Objectors according to page 3, b, file a  joint brief of 90 pages.

Answer:  We believe the court answered affirmative to that, said the 30 page requirement was per individual.  The guideline is that ALL PARTIES MUST SIGN THE BRIEF.  It is not sufficient for one party to sign for all parties.  See discussion below on Joinders.

5. Question:  Parties seeking to join another parties’ Motion can file a statement of Joinder. Does that mean, for example, 3 pro se Objectors can file a joint brief and then some 30 other pro se Objectors can file a statement of Joinder supporting that brief?  Or does 30 other Objectors have to file individual statements of Joinder?  Are these statements to be briefs or just simple Motions of Joinder? 

Answer:  The Judge referenced rules of civil procedure for joinder of claims:

Rules of Civil Procedure

Rule 18. Joinder of Claims.

(a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.

(b) Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties’ relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money. In tort cases, this rule does not allow a liability or indemnity insurance carrier to join, unless under law or a contract the carrier is directly liable to the person injured or damaged.

The Judge commented that a simple request to the court for a joinder would be required by the court.  While this may not be the best example, here is a copy of the Fort Peck Tribe’s Joinder to the State of Montana’s Motion in that case:  Excerpt from Fort Peck Tribes Joinder to States Motion to Dismiss Objectors and Approve Compact.

Looking up Joinder of Claims on the internet we saw that “Federal Rule of Civil Procedure 18 facilitates the consolidation of legal claims against a party into a single lawsuit, promoting efficiency in litigation but requiring careful consideration of strategic and jurisdictional issues.”

We are not attorneys, and are not familiar with the ins and outs of the concept of JOINDERS OF CLAIMS, but assume that the parties to be joined must agree to such an arrangement. 

Please do your homework on this issue.  Here is another link that might be helpful to you:  Joinder of Claims.

An additional question was asked about whether there would be another opportunity to file a motion for summary judgment after discovery.  

Judge Brown said he could not guarantee that, because the case will evolve from the motions that are about to be filed in the court.  If an additional deadline for such a motion is needed, the Judge will deal with that later.  

Consent to Electronic Service

Looking at the latest service list for pro se litigants, by far the bulk of objectors have not signed up for electronic service from the court. 

Only those signed up for such service receive their notifications from the court and compact parties via email.  If you are not signed up for Electronic Service, you should be receiving your notifications via snail mail.

Because things are going to start moving very quickly in these proceedings, and deadlines for responses to motions within rather short deadlines, this could mean the difference between meeting a deadline and missing one, from which there may be no recovery.  

If you are interested in receiving electronic notifications from the court going forward, you can complete this CONSENT TO ELECTRONIC SERVICE form provided by the court and submitted according to directions on the form.

If you choose to not go for electronic service, we ask you to get in the habit of checking the CSKT Compact Information Page Provided by the court to keep objectors and the public abreast as to activity in this proceeding.  

Scroll down the page and if nothing else, be sure to look at MOTIONS and ORDERS.  The court is doing a good job of keeping this information updated for objectors, so please do take advantage of that effort.