© 2014 Concerned Citizens of Western Montana
On Thursday July 3rd, 2014, Mountain States Legal Foundation filed a response to the CSKT v. Everybody lawsuit that was filed February 27, 2014. Their response says, in part:
Plaintiffs seek a declaration of ownership of all water within the Reservation, including all water distributed by the Project, and seek to enjoin various ongoing proceedings in Montana state courts. First Am. Compl., Doc. 27 (“Compl.”). Plaintiffs also assert claims that, if successful, would cloud Landowners’ title granted by way of federal land patents under the general public land laws. Compl. ¶ 56, Count One ¶ 8, Prayer for Relief ¶ 3.
Plaintiffs ask this Court for a declaration of ownership and a quantification of all waters within the reservation, including all waters distributed by the Project. Such a request for relief is inappropriate in light of the comprehensive general stream adjudication currently underway in Montana Water Court, and this Court should dismiss Plaintiff’s Complaint….
And further states:
In Confederated Salish and Kootenai Tribes v. United States, 437 F.2d 458 (Ct. Cl. 1971), Plaintiffs brought a Fifth Amendment takings claim against the United States regarding surplus lands within the Reservation that had been patented to settlers. Plaintiffs were awarded just compensation for the value of those lands, including “all homestead and cash entries[.]” Id. at 469, 471; Compl. ¶ 48 (citing Confederated Salish, 437 F.2d at 458) (“The [Flathead Allotment Act] has been judicially determined to have been an unlawful breach of the Hellgate Treaty.”). Interestingly, Plaintiffs now claim continuing title to those same lands, including those patented to Landowners’ predecessors, for which they received just compensation in Confederated Salish. See Compl. ¶ 56, Count One ¶ 8, Prayer for Relief ¶ 3 (“[T]he chain of title to land on the [Reservation] has never been broken and for that reason no lands within the borders of the [Reservation] have ever been part of the public domain subject to the general public land laws.”). Because of the preclusive effect of Confederated Salish, Plaintiffs’ claim of continuing title to the lands patented to settlers is barred by res judicata.
A FAR CRY FROM THE ATTORNEY GENERAL’S RESPONSE
On Friday May 23, 2014, we reported that the Montana Attorney General’s office was filing a motion to intervene. It was frustrating to see that their office used Jay Weiner as a legal resource for their response, especially because he continues to be a controversial figure in the water compact issue.
Additionally, the AG’s response served merely to kick the can down the road, because the issue was “not ripe”. They completely failed to discuss any of the issues or matters brought to the table in the tribe’s lawsuit, i.e. their demand for a declaration of ownership of all the land and water within reservation boundaries. It was a weak response at best, and at worse, it possibly speaks to the bias in the AG’s office related to the proposed CSKT compact, a document that Mr. Weiner likely authored.
In contrast, while Mountain States also asked for a motion to dismiss, their response did a far better job of focusing on the issues raised in the suit perhaps paving the way for the court to dismiss the tribe’s lawsuit with prejudice, and for forcing the tribe to continue to work their issues out through the Montana Water Court Adjudication Process.
If the suit dismissed with prejudice, the tribe will not be able to bring this issue up in a future lawsuit, if it is dismissed without prejudice, the tribe will be free to bring it up later. Of course there is always the possibility that the suit will not be dismissed, so we will have to wait and see what the court ends up doing. The United States has been granted an extension of time to respond to the suit by 09/26/2014. We are going to have to wait a while longer to see what the outcome will be.
A copy of MOUNTAIN STATES LEGAL FOUNDATION response in its entirety can be found here.