© 2014 Concerned Citizens of Western Montana

Mountain States Legal Foundation, the Montana 20th District Court and Water Court, and the Montana Attorney Generals office have  filed responses to the CSKT’s response to their motions to dismiss the tribe’s lawsuit.  Excerpts from each response and a link to the documents in their entirety can be found below.


In their August 6, 2014 response, Mountain States Legal Foundation again requests a dismissal of the tribe’s amended suit in its entirety for a variety of reasons including:

  • Plaintiffs fail to rebut Landowners’ issue preclusion and failure to state a claim arguments.
  • Plaintiffs mistakenly rely on McIntire and Alexander as settling all water rights claims within the Reservation, specifically water distributed by the Project.  Both McIntire and Alexander, however, focused on water rights to allotted lands, not surplus lands.  More importantly, neither case purported to undertake a  comprehensive adjudication of all water rights within the Reservation.
  • Plaintiffs purport to disclaim “any desire or intent to quantify anyone’s claims to water.” Yet, Plaintiffs’ own pleading directly contradicts this “disclaimer.”
  • A determination of Indian reserved water rights necessarily includes the scope and quantification of such rights, which is properly made in a comprehensive adjudication.
  • Plaintiffs concede that their request for declaratory relief regarding chain of title was inartfully pleaded and should be dismissed.
Read the Mountain States response in its entirety at this link.


The August 14th response by the Montana Water Court and the 20th District Court, was similarly scathing. It requests again that their Motion to Dismiss be granted and says in part:

  • The court should reject what is, in effect, a preemptive appeal by the tribes of a ruling that may or may not occur.  This preemptive appeal not only undermines the statewide process enacted pursuant to the McCarran Amendment, but it fundamentally challenges basic principles of federalism and the Judges’ solemn obligation to follow federal law
  • The Tribes advocate an enlargement of the Anti–Injunction Act’s exceptions that would ultimately swallow the Act’s general mandate. The Tribes’ main argument is that the issue of water rights on the Flathead Indian Reservation has already been resolved; that any dispute relating to these rights is a simple matter of applying the doctrine of res judicata. If that is true, then the Tribes should have no concern with presenting the issue to the Judges who, following their “solemn obligation” to apply federal law, should then easily conclude the law is as the Tribes say. The Tribes’ hesitancy, apparently, lies in concerns stated in footnote 6 of their brief, wherein they express the view that “[t]he Montana district courts have a demonstrated inability to accept and adhere to federal judicial decisions. . .  Setting aside the gratuitous slap at Montana district courts, the Tribes fail to point to any legal authority that permits an end-run around state court jurisdiction simply because of a perceived “inability” to apply federal law. This is nothing more than forum shopping by the Tribes.
You can see the courts response to the tribe in its entirety at this link.


 The Attorney General Response can be found at this link.


To see other documents related to this suit, please see the COURTS page of this blog.