©2013 Concerned Citizens of Western Montana
HOGTIED AND HAMSTRUNG
As if the details of the Flathead Water Compact, the irrigator Water Use Agreement and the Unitary Management Ordinance aren’t bad enough, attorneys for the negotiators included avenues designed to “bullet proof” them.
How, you might ask? This additional layer of protection, impenetrability if you will, is attempted by including something in the documents known as a MUTUAL DEFENSE CLAUSE.
ARTICLE VII of the irrigator water use agreement says:
All Parties covenant to take all steps necessary and lawful to defend this Agreement from judicial and legislative challenge that in any way materially impacts the ability of any Party to fulfill its obligations under the Agreement or that materially impacts the execution of the Agreement.
ARTICLE VIII of the Flathead Water Compact says:
The parties agree to defend the Compact after its effective date from all challenges and attacks and in all proceedings pursuant to Article VII.B and C, and agree that no provision of the Compact shall be modified as to substance except as may be provided in the Compact, or by agreement among the Parties.
While negotiators would have us think this is standard fare for important agreements such as these, we see it as being intended to bankrupt citizens who might challenge them through legal avenues, and also to prevent the legislature or judicial system from correcting any wrongs in them.
What this all means is that if a citizen challenges any of these documents, the government that is supposed to protect said citizen with its laws and constitution, will necessarily be obligated to use taxpayer dollars to defend the compact documents against the suit of and perhaps the best interest of its own citizens. If legislators try to pass billls to fix any of the collateral damage or unintended consequences (or intended consequences for that matter) of the compact, the parties involved once again would have to defend these very bad documents from such challenges.
In other words, once ratified, if the compact or any of its documents are objected to and challenged, the state of Montana would be obligated to fight against its own citizens. The Flathead Joint Board of Control would be required to legally defend the water use agreement from lawsuits brought on by irrigators to defend their project water right from being relinquished to the CSKT.
THE GIFT THAT KEEPS ON GIVING
The mutual defense clause of these documents is a very dangerous example of what attorneys are able to come up if given free reign. It matters not to them that their documents might be unconstitutional or have legal issues, what seems to matter more is setting precedent and then finding creative ways around the checks and balances our system of government is supposed to provide. If preventing the people hurt by their magnificent creations from defending or protecting themselves against their “legal documents” is one of the consequences, that is simply the way it must be. After all, the commission has reminded us far many times that they work on behalf of the governor, not the people.
Remember, these are forever documents. Once ratified, they will be nearly impossible to change.
The compact commission coined the phrase THE GRAND BARGAIN to describe the state’s agreement to remove 23,000 non-Indians living on the reservation out from under the protection of Montana’s laws and constitution with respect to their water needs, and to place them under a board that will be tribally controlled. In doing so, they have cavalierly ignored the equal protection clauses of the Montana and United States Constitutions.
So what pet name might negotiators have for the MUTUAL DEFENSE clauses of these agreements?
We would argue that the mutual defense clause of these documents should be called THE GIFT THAT KEEPS ON GIVING. This seems appropriate, because after all, the compact commission considers this water compact to be the Magnum Opus of all water compacts, the bright and shining star from which all future compacts will be measured. They believe they’ve bestowed a great gift upon the people of western Montana. To hamstring and hogtie those same citizens, and to pit their own government against them to ensure they will be unable to fight it, is merely icing on the cake.
If the Flathead Water Compact is ratified as is, the mutual defense clause is a legal “gift” for current landowners holding valuable property and water rights. The strings attached to this disastrous package will necessarily tie them up for generations to come.