© 2013 Concerned Citizens of Western Montana
The Fifth Amendment of the U.S. Constitution includes a Takings Clause that provides private property shall not “be taken for public use without just compensation.” This clause restricts a government’s power to seize or condemn private property through eminent domain proceedings. It also restricts government power to limit the use or value of private property through regulatory means such as zoning.
Montana’s Constitution also prohibits the taking of private property without just compensation. Article II, section 29, provides that “private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails.”
Inverse condemnation is a term used to describe a situation in which the government takes private property but does not pay compensation as required by the Constitution. To be compensated, the owner must sue the government. This type of action is called “inverse condemnation” because the order of parties is reversed. In these proceedings, the landowner is the plaintiff suing the government, compared to eminent domain condemnation where the government is the plaintiff suing a landowner to take his or her property.
In 1995, the Montana Legislature enacted the Private Property Assessment Act, requiring the Attorney General to develop guidelines to assist state agencies in identifying and evaluating proposed agency actions that may result in the taking or damaging of private property. A copy of the attorney general’s guidelines can be found here.
WHAT DOES IT HAVE TO DO WITH THIS COMPACT?
Water rights are property rights. Both the United States and Montana Constitutions protect water right holders from being deprived of those rights without due process of law. All water in Montana is owned by the State, subject to appropriation for the beneficial use the use of its citizens.
The Flathead Water Compact is the most overreaching of all the tribal water compacts for the state of Montana in terms of water volume, off reservation water rights, and the administration of all water on the reservation (see comparison chart).
As of the writing of this post, the state of Montana has not provided the quantification of the Flathead Reservation’s federal reserved water right. Instead the commission overreaches to give the federal government senior water rights for most, and possibly more water than exists in some basins in western Montana. This excerpt from the 08/02/11 Clark Fork Basin Water Management Task Force might provide insight as to why the commission chose not to provide that information:
Comment – I have heard a rumor that the compact will not quantify the CSKT reserved water right. Without quantification, I am unsure how adverse affect will be determined….. Will the compact specify or cap the flow and volume of the CSKT reserved water right?
Answer by Jay Weiner – Maybe. This is a complicated issue. If the reserved right is quantified numerically (either by volume or flow rate), it will likely be larger than the available supply. The Compact Commission will seek sideboards on the use of the reserved right to protect existing water users.
The lack of quantification, coupled with commission’s failure to provide impact statements that would have helped people understand the impacts of this compact, leads us to ask a few questions:
DOES THIS COMPACT REPRESENT AN UNCONSTITIONAL TAKING?
WILL PROPERTY OWNERS BE FORCED TO SUE THE STATE OF MONTANA IF THIS COMPACT IS RATIFIED?
COMPACT COMMISSION TALKING POINTS OFTEN TOUT THAT EXISTING USES OF WATER ARE PROTECTED, BUT NEVER MENTION FUTURE USES. WILL THIS COMPACT CLOSE THE BASIN AND STOP FUTURE GROWTH AND DEVELOPMENT?
WHAT MIGHT ALL OF THIS MEAN TO THE VALUE OF MY PROPERTY?
CEDE, RELINQUISH AND CONVEY
The commission ignores Article 1 of the Hellgate Treaty that states: “The said confederated tribes of Indians hereby cede, relinquish, and convey to the United States all their right, title, and interest in and to the country occupied or claimed by them…” ,
The compact is then used to twist Article 3 treaty language that says: “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory.” In this agreement, the negotiating parties attempt to translate aboriginal treaty rights to mean off reservation water rights. Unfortunately for them, they are not.
It seems the commission and the tribes want to have it both ways, and are attempting to create a narrative that will allow them to take off reservation water rights under the guise of federal reserved water rights. So we ask:
DO THE OFF RESERVATION WATER RIGHTS IN THIS COMPACT, INCLUDING ALL OF THE WATER IN FLATHEAD LAKE, REPRESENT AN UNCONSTITIONAL TAKING?
WHAT PART OF THE WORDS CEDE, RELINQUISH AND CONVEY DO THE NEGOTIATING PARTIES NOT UNDERSTAND? (Note:. The tribes were paid for these ceded lands.)
THE IRRIGATOR WATER USE AGREEMENT IS RULED AN UNCONSTITUTIONAL TAKING
Next there’s the Flathead Irrigation Project Water Use Agreement, one leg of the so-called three legged stool, once touted as being a “major piece of irrigator protections. In reality, it is intended to make a very bold statement that the tribes own the irrigation project by attempting to force irrigators to relinquish their project water rights to the CSKT. It says:
This Agreement and the Compact specify the terms under which the United States and the FJBC agree to withdraw and cease prosecution or defense of all claims to water, whether arising under Federal or State law, held in their names and filed in the Montana General Stream Adjudication, and whatever permits and other rights to the use of water recognized under State law that are held in their names for use on lands served by the FIIP (Flathead Irrigation Project).
In no other parts of the compact does the agreement force the relinquishment of water rights to the tribes.
EXACTLY HOW IS THE FORCED RELINQUISHMENT OF WATER RIGHTS IN EXCHANGE FOR AN UNGUARANTEED AMOUNT OF WATER TRANSLATE INTO IRRIGATOR PROTECTIONS?
When this document was released in May of 2012, a group of irrigators quickly organized and formed the Western Montana Water Users Association. Last December they filed a lawsuit against the Flathead Joint Board of Control to prevent this egregious document from being approved.
The compact commission responded to this lawsuit by trying to distance themselves from it, and at their December 19th meeting in Helena, stated they were looking for other options to this agreement. They also began the narrative that this agreement was not a necessary component of the compact.
This past February, District Court Judge C.B. McNeil ruled the FIPWUA to be an unconstitutional taking without compensation. This forced the compact commission to submit the compact to the legislature with one of its “legs” missing.
Even with this ruling, there remains a small number of irrigators on the reservation who are willing to vote or give away their own water rights as well as their neighbors. This was demonstrated this past week when a group of irrigators put a rather lengthy opinion piece in the local paper touting how wonderful this agreement and the compact will be for us all. Having read the documents and analyzed them, we can only conclude that these people, including our local representative and compact commission member Dan Salomon, have not read, nor do they fully understand the documents. Instead they continue to try to sell the public on the flawed arguments, assumptions and talking points of the compact commission.
WHAT DOES THE STATE HAVE TO SAY?
In response to Concerned Citizen’s criticisms concerning this compact and the issue of inverse condemnation, Jay Weiner, commission attorney and drafter of the agreement said:
“….. takings theory is that a junior water user’s property right is being taken by the exercise of a senior water right. Were that the case, the entire prior appropriation doctrine would be unconstitutional. Indeed, the proposed settlement imposes conditions on the exercise of the Tribes’ senior rights in favor of junior users. It protects the junior water right holder from the jeopardy of the Tribes’ senior priority. It therefore is the precise opposite of a taking.”
In this statement Mr. Weiner deflects the debate away from the takings issue by stating that existing uses are protected in this compact. The irrigator water use agreement is a perfect example as to why his statement about protecting existing uses of water is not true.
His comment assumes that it is a fact that the tribes have senior water rights for all the water in western Montana, necessarily forcing all other water rights to become junior, thereby allowing the prior appropriation doctrine to take care of things. His assumptions are flawed. The tribes do not have senior water rights for all the waters of western Montana, although this compact attempts to accomplish that objective.
IF THIS COMPACT WERE TO BE RATIFIED, WHAT WILL HAPPEN TO WESTERN MONTANA PROPERTY OWNERS WATER IN A DRY YEAR WHEN THE TRIBE’S INSTREAM FLOW LEVELS ON AND OFF THE RESERVATION AREN’T MET? (Hint: Klamath Falls)
WE’VE FREQUENTLY BEEN TOLD THAT THE TRIBES WANT TO MAKE CALL ONLY ON IRRIGATORS. WHAT WILL THIS MEAN TO OUR AGRICULTURE ECONOMY?
These questions and a multitude of others cannot be answered because the commission has refused to provide impact studies that might provide the answers Montana citizens deserve and need to make an informed decision about this compact.
So again we ask, DOES THIS COMPACT REPRESENT AN UNCONSTITUTIONAL TAKING?