© 2014 Concerned Citizens of Western Montana

Matthew 10:26  So do not be afraid of them, for there is nothing concealed that will not be disclosed, or hidden that will not be made known.  What I tell you in the dark, speak in the daylight; what is whispered in your ear, proclaim from the roofs.

It seems as though there are dozens of lawyers involved with this compact, yet not one of them is advocating for the property rights of western Montanans.   To many, this compact is a mere microchosm of what is going on at the higher levels of state and federal government throughout our country, and sadly we are also seeing this same trend in our local county commissions and city governments.  In a recent article, WHAT IS MUTUAL DEFENSE?  we discussed how the lawyers who wrote this unconstitutional and illegal 1,400 page Flathead water compact requiring all of the negotiating parties to defend it against legal and legislative challenges. If we didn’t know better, it would be easy to think that these attorneys intended to bankrupt the average citizen, or to frustrate and demoralize them to the point that they will just stop trying to protect and defend their property rights.

The other trap the commission has laid for the people is their refusal to do any impact studies on the compact.  Instead, they say studies will only be triggered after the compact has been ratified and is being implemented.  Huh??  So in other words you have to pass the bill first to find out what is in it.

By supporting the compact as is, our governor, attorney Steve Bullock is pretty much telling the people of Montana to shut up and sit down.  If western Montanans are concerned about the diminishment of their property rights, or are unhappy with being “removed from the protection of the state” for their water, they will have little if any recourse once this compact, the one he calls a fair agreement, has been ratified.  Don’t believe it?  How about hearing it directly out of the mouth of the compact commission’s attorney?

Here is a transcript of a discussion that Water Policy Interim Committee Chairman, Senator Chas Vincent had with Melissa Hornbein, attorney for the compact commission on January 6, 2014:

Senator Vincent:  Do you believe that the commission has adequately addressed economic, environmental implications and discussed that in the body of this report and subsequent public hearings?

Melissa Hornbein:  I believe that the commission has done adequate background work but we’ve never specifically targeted environmental or economic impacts in any of our other prior compacts for a MEPA (Montana Environmental Policy Act) or NEPA (National Environmental Policy Act) review.  The rationale being that the commission’s approval of a compact and recommendation of approval to the legislature is not an agency action triggering such review and moreover, especially our bigger compacts which are generally the tribal compacts involving the infrastructure development projects will have specific elements that require a MEPA or NEPA review where there is under what is termed NEPA case law, and irretrievable commitment of resources to begin those projects.  With regard to the technical review we have files and files and pages and pages of technical review dealing with how we got the quantifications for the various water rights and what the basis for those was.  And I would certainly invite anyone to come in and talk with me or Ethan Mace (hydrologist) about how those numbers were reached.

Senator Vincent:  So along that line of conversation, with regards to MEPA and having it applied in the actions found after ratification.  What would be the recourse if you will, of a citizen under MEPA if he or she was determined to have irreparable harm for the action that was being essentially implemented by the ratification of the compact?  Under current MEPA, what would have happened if there was an injunction sought?

Melissa Hornbein:  Under current MEPA I’m sure you’re well aware, it’s a procedural statute not a substantive one.  So a citizen or someone who is concerned with the scope would have to bring litigation based on the argument that the review itself was inadequate and did not comply with the statute and therefore if they were found to be rights, there would be an injunction issued requiring the agency or the compact commission to go back and rectify the oversight in the review.  But in terms of stopping a project because an individual person or even a group would believe there would be harm to their interests…. MEPA does not do that.

Senator Vincent:  So there would be essentially no recourse for a citizen is the point that I was making.

This revelation adds one more layer to the criticism to the commission’s policy of no impact studies being done ahead of time.  Not only do you have to pass the bill to find out what’s in it, but once it’s been passed you will have no recourse under the MEPA law itself.  The compact commission knows and understands this.  They admitted it in this simple exchange.

So lets ask:  When enacting MEPA,  did legislators intend to have studies done after the fact as the compact commission supposes?  The MEPA Handbook 2013 states the following about its intentions:

MEPA was purposeful in establishing a process whereby Montana can anticipate and prevent unexamined, unintended, and unwanted consequences rather than continuing to stumble into circumstances or
cumulative crises that the state can only react to and mitigate. Again, simply expressed in country vernacular, “An ounce of prevention is worth a pound of cure.”

The purpose of the Montana Environmental Policy Act (MEPA) is to declare a state policy that will encourage productive and enjoyable harmony between humans and their environment, to protect the right to use and enjoy private property free of undue government regulation, to promote efforts that will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of humans, to enrich the understanding of the ecological systems and natural resources important to the state…

 In a document entitled Attorney General Guidelines (updated January 2011), it says the following about protecting property rights through Montana’s Private Property Assessment Act:

The Private Property Assessment Act applies to proposed agency actions, (such as an administrative rule, policy, or permit condition or denial), pertaining to land or water management or to some other environmental matter that if adopted and enforced would constitute a deprivation of private property in violation of the United States or Montana Constitutions. The Act defines “private property” to mean real property, including water rights.

The state documents, along with the bills themselves show without a doubt that the legislature intended to protect private property rights.  But leave it to a bunch of attorneys to parse, reinterpret, mislead the public, and discount all the common sense reasons for such a study “ahead” of ratification of this massive water compact.  Instead they say there are “no foreseeable instances” that this compact will be detrimental.

In case you have forgotten, or are only getting started on your quest to learn about it, keep in mind this compact is unlike any other in the state.  See our comparison chart of tribal all compacts in Montana.

So why wouldn’t the commission want their compact to be studied so the public and legislators can understand its implications ahead of its ratification? 

The only reasonable conclusion we can offer is that the negotiating parties and our governor know the studies will demonstrate the need for significant and substantive changes to the existing “proposed” compact, changes that the commission and the tribes are unwilling to make.  They know such environmental, economic and legal studies would shine a bright spotlight on the warts, economic and environmental consequences, illegalities and unconstitutionalities of more than a decade of “negotiations”.   In other words their “work product” would be shown to be the utter failure and overreach that it is.

The commission believes a compact must be secured no matter what the cost to the people of Montana.  Therefore it is far better and a much easier task to try to “sell” the compact through finely crafted talking points and statements that must be stretched to come close to qualifying as the truth, than it is to do the studies so that the public and legislature have enough information to understand what this will mean to property rights and to Montana’s future.  Hence the governors report that discusses all the good aspects of the compact and ignores any negative consequences, giving deference to court decisions that tend to substantiate their massive overreach while ignoring all others.

Such studies should be seen by the commission as a means of providing peace of mind to the public and to decision makers before they vote to support or defeat this compact that is a forever document that cannot be changed. In private industry, it is called “due diligence”.  Instead the studies are ignored for the sake of expediency and to pass a compact that once ratified, will likely allow little or no recourse to the citizens harmed by its consequences, intentional or not.