© 2013 Vandemoer
The ‘threat’ of litigation (returning to the adjudication process) has been used by the Compact Commission, the FJBC, other CSKT compact proponents, and now “well intentioned” 🙄 legislators to brow-beat citizens into accepting the terms of the terrible agreement known as the CSKT Compact and the FIP water use agreement. The recent amendment of SB 265 to accommodate a legislative study of the existing CSKT Compact was in part designed to avoid litigation with the CSKT. We are reminded constantly by the CSKT that they have a legion of attorneys and the financial resources to take on the State of Montana in a water rights battle. To boot, we are reminded that the entire United States Department of Justice will also be used on behalf of the Tribes.
We would have some sympathy for those who are scared of this outcome if it weren’t for the fact that other small states, namely Wyoming and Oklahoma, have gone to bat for their citizens and spared no expense in protecting citizens’ water rights. Consider Oklahoma’s strong assertion that it will fight for its citizens water rights and the right of the state to manage its water resources:
“Keep in mind, the Tribes are attacking the adjudication process precisely because it allows every Oklahoman with a claim to the water to have a seat at the table when the Tribes’ rights are determined. The Tribes don’t want that, and would rather have a federal court decide their rights without Oklahomans ever having their voice heard. That just isn’t right. The state adjudication process will give every Oklahoman with a water right the due process they deserve.”
And there’s the Wyoming example, where the State and the Tribes/United States fought over an average annual flow of 1.2 million acre feet of water and ended up splitting the basin’s water resources at 50-50. The State retained its water management authority—even over Walton rights holders—and the Tribes developed their own comprehensive water code to manage their resources. Litigation over the Big Horn Decree—affirmed by the United States Supreme Court in 1989—continued for a decade after its issuance precisely to resolve issues like Walton Rights, appurtenance of water to lands, and instream flows. Wyoming is the least populated state in the United States but has one of the best managed budgets in the nation. And it has its priorities straight: its citizens come first.
When Adjudication is Necessary
Sometimes no matter how many years negotiations continue, one or more parties refuse to budge from their positions. At that point the parties return to court where there are rules that guide proceedings and possible outcomes. In a water rights negotiation, some of the reasons why the negotiation is fruitless could include:
- When a party claims it owns all the water despite overwhelming evidence to the contrary
- When a foreign government claims it can exert its jurisdiction over citizens of another government
- When a party refuses to reign in its claims, or seeks claims that are clearly outside of recognized law
- When negotiations have not proceeded in good faith
In this situation, these ‘assumptions’ and tenets would need to be tested in a court of law because negotiators are afraid to say “no” to claims that are tenuous at best.
We believe that the CSKT Compact negotiations have gone as far as they can, and after at least ten years, the CSKT have refused to budge from these positions. It’s sad, but after at least ten years and the expenditure of more than $11 million dollars of public money, the State of Montana is no closer to a solution than it was a decade ago.
But that fear of litigation—of returning to Montana’s existing adjudication process—keeps driving the bus down the road of negotiations. The Compact Commission threatened everyone in western Montana that they would ‘have to bone up on their legal skills’, ‘hire their own attorney’, and ‘make some tough financial decisions’ if they chose not to accept the illegal and unconstitutional CSKT Compact.
Let’s put that myth to rest.
The Adjudication Option
Montana’s general stream adjudication has been underway since 1979. In this Montana state water rights adjudication process, the State is responsible for filing, verifying, and submitting its citizens’ water rights to the Montana Water Court. The State DNRC is the technical agency responsible for verifying water rights according to strict procedures outlined by the Montana Water Court. Except for special circumstances, no one individual is responsible for hiring their own attorney.
In general, the United States and the CSKT would quantify the federal reserved water right that would meet the purposes of the reservation, which, according to the Hellgate Treaty, would be agriculture and fisheries. The United States would claim existing domestic, municipal, and industrial uses; an amount of water to meet future uses would also be proposed. The Tribes would most likely claim, and be awarded, the water in the lakes in upper elevations of the reservation, in other words, lakes that are not used currently for irrigation purposes. Any wetlands water rights would be subsumed in the fishery award, and would be identified as to the volume and source of water. With the exception of the current uses of ground water, it is likely that all the Tribes’ water rights would carry a priority date of 1855. There would be no off-reservation water rights component.
 There is a strong argument that since the Flathead Indian Reservation was opened to settlement, that the reservation land base was diminished. Pursuant to the Indian Reorganization Act of 1934, unalloted reservation lands were ‘restored’ to the reservation ownership. Both fishery rights and lands were diminished. Thus there is an argument that the priority date of water rights would be 1934, not 1855, and a diminished fishery right.
 Ground water was not used initially by the tribes so may not carry a federal reserved water right. However, existing uses of ground and surface water could be ‘subsumed’ into the water award.
 In negotiations, the CSKT claim an ‘aboriginal time immemorial right’ for fisheries. We believe this would be up to the Court to determine.
 Aboriginal rights would likely be resolved in federal court, with the CSKT having to prove fishing at usual and accustomed places. Any water right associated with the ‘right to take fish’ would have to be proven and, as discussed earlier, may not be successful in litigation. The Montana Water Court is authorized to hear only federal reserved water rights by virtue of the McCarran Amendment.