Thanks to our friends at the View from Montana for sharing this great commentary on the CSKT Water Compact by Fred Kelly Grant.  Mr. Grant is a well known property rights advocate and attorney from Idaho.

February 8, 2015—-by Fred Kelly Grant, Chairman of Board and CEO Stand and Fight Club Inc.

Many historically significant battlefields are visited annually in Montana.  Today, another historic battle is being fought over water, and the battle field is the Montana statehouse.   A water compact between the United States, the state of Montana and the Confederated Salish and Kootenai Tribes will award even off reservation water rights to the Tribes.  Some opponents of the Compact say that the Tribes will be given the right to direct distribution of water even off reservation.  A reading of the convoluted 1600 page compact seems to support their belief.

It would be a big mistake for owners of private water rights outside the state of Montana to overlook the importance of this hotly contested water issue.  If successful in their efforts, legislative supporters of the compact will create a pattern that will endanger private rights wherever private, Tribal and federal water interests collide.

Private property owners throughout the state have voiced strong objections to the compact sponsored by a senator who formerly opposed the compact concept.  In an email exchange with a constituent, the sponsor explains that after “several hundred hours” of study, he sees the wisdom in negotiating the off-reservation Tribal rights. But so far, I haven’t been able to detect significant changes in the compact that would protect private water rights, and there is no explanation by supporters of where those changes are located in the document.

One worry I would have as a Montanan would be the extensive immunity from liability the producers of the compact and the bill to implement it give themselves.  I don’t believe in 50 years in the business, I have ever seen such an all-out, all inclusive effort by drafters and supporters to give themselves immunity.  I would always worry if a proponent of a legislative or administrative act says:  “What we are doing is straight legal and constitutional, but if that isn’t clear, we want it absolutely clear that we are not responsible for the unconstitutionality and we want it even clearer that we are immune from liability for creating an unconstitutional taking.”

Unsatisfied with the sponsor’s answer to him, the constituent from Troy Montana made this statement:

Our corporate attorney for several decades has passed  away, but I still remember one of his favorite statements that fits many  situations – He said every negotiation, no matter what it was in regards  to, ended by answering the question of Who Gets What? Since well over 2  million dollars has been spent for advertising to attempt to convince the  people to accept this compact, who is paying that and what do they get?  Many people of influence have changed their mind after meeting with the  tribes or the feds or both, all of which begs the question – Who Gets What?

One thing that is clear here is that we do know that  high-power DC lobbying, public relations company, Mercury, is getting $1 million dollars to run the campaign to persuade the legislators to vote “yes” and to persuade the Montana citizenry that everything is kosher about a “yes” vote. And, we know that the Confederated Salish and Kootenai Tribes entered into the contract to pay the million to Mercury.  In addition, they have set aside another $1.8 million dollars for other unspecified public events (to be run by Mercury, one wonders?)

That’s a lot of money to be changing hands to gain support for a water compact.  I have observed many such agreements negotiated through the past two decades, and never have I seen this much money spent for public relations and advertising—-it has been my experience that water compacts, water settlements, water negotiations sell themselves if both private water rights and Tribal rights are protected.

In this case, apparently the proponents are not confident that the compact can be sold on its merits—maybe because the objectors’ rights are not protected?  Say what? State legislators would not support a compact that did not protect their constituents’ rights would they?

So, who is this Mercury company that comes with such a high price?

The Hill,  a leading newspaper in DC which carries weight on capital hill, considers Mercury one of the top lobbying firms in DC. (See “Top Lobbyists 2014: Hired Guns”, The Hill, October 22, 2014)  A review of the partners reveals political heavy-weights that I am surprised to see carrying in the fight over a water issue, unless the compact is critical to political interests other than Tribal.

The political clout at Mercury is wielded in a bi-partisan manner:  The partner considered the best of the lobbyists by The Hill, Vin Weber, is republican through and through—a former Representative from Minnesota’s second congressional district, member of the Appropriations Committee and member of the republican House leadership;  Montanans are represented in the republican leadership of the firm by Denny Rehberg, former member of Congress; Rick Wiley was political director for the Republican National Committee.

But, the Obama priorities are heavily represented in the firm also:

Ashley Walker served as the 2012 Florida State Director for Obama for America, and two years earlier managed grassroots support for the President’s priority projects: the Affordable Care Act and Don’t Ask Don’t Tell; Erin Pelton is a former Spokesperson to the United States Mission to the United Nations and served in senior roles in the Obama administration; many other staff spent prior time in support of Obama projects related to “sustainability”.

Mercury’s influence is intensified by its being a  part of Omnicom Group Inc, self described as “a leading global advertising and marketing communications services company[providing services] to “more than 5,000 clients in more than 100 countries.”  Omnicom Group reported worldwide revenue of $3,749.6 million dollars for the third quarter of 2014 and revenue in the United States of $1,996.3 million dollars for the same quarter.

It may come as a surprise to outsiders that proponents of the compact have called on such expensive, high-flying, talent who boast of their “innate ability to leverage the diverse expertise of our global networks for the benefit of our clients.” (Website of Omnicom Group)  The appropriateness of the campaign being waged has been pointedly challenged by Montanans who oppose the compact and do not have anywhere near the funds needed to combat high-powered pr firms such as Mercury and Omnicom Group.

A former member of the Montana legislature, well respected by private property supporters because of commitment to protection of constituents’ property rights, the high price Mercury advertising program makes “dubious assertions” in behalf of its frontispiece Farmers and Ranchers for Montana (FARM).  Pointing to an editorial, perhaps penned by Mercury, the legislator said  the purpose of the ad campaign appeared to be to ”educate” Montanans about the Confederated Salish Kootenai Tribes”. (A copy of the opinion, published in the Great Falls Tribune follows) I have now heard recordings of two of the commercials and I agree that they contain nothing of  educational substance as to why the compact is good for all of Montana.

Rather, the ads proclaim that farmers, ranchers, sportsmen, republicans, democrats, the Tribes, irrigators all support the compact and the bill that will implement it.  One only needs peruse the email strings to conclude that an inference that a majority of all these groups support the compact is simply not true—–in fact, is pretty close to a factual falsehood.  The implication that is intended is purely a falsehood.

Radio ads making the claims do not identify who is paying for them.  Prior to public revelation of Mercury’s high priced contract with the Tribes, a local government official called a radio station and inquired as to who was paying for what appeared to be false advertising.  The station manager said he was prohibited from revealing the identity of the person or organization providing the ads to the station, and that the station had no obligation to assure that ads conveyed truthful information.  That’s an interesting interpretation of the FCC’s ethical guidelines for commercial radio stations.   But, no more interesting than the entire high priced pr campaign.

Without a scientific poll, I don’t believe that even a slight majority of farmers, ranchers, sportsmen and irrigators support the compact—and I have serious doubts that any really conservative republican would support the compact.  After reading through the compact, I doubt that any true conservative republican could even be sure that private water rights already proved up by beneficial use will be protected by the compact.

In fact, after reading the attempts by proponents to explain the compact, it seems clear to me that republicans in the Montana Senate are being asked to pass the bill to implement the tome that is the compact “in order to see what it means and what is in it.”  Can anyone say “the Affordable Care Act a/k/a Obamacare”?

Unlike the Mercury ads, and unlike the convoluted explanations of the compact by supporters, a long term member of the legislature has provided an articulate opposition to the compact and bill.  The legislature has long been recognized as an expert on water law and the Montana Constitution.  A copy of the letter detailing the flaws in the compact follows.

The primary sponsor of the compact and bill has committed to provide to opponents a “risk analysis” that will demonstrate how the compact protects private water rights.  I am curious as to what this “risk analysis” will contain, since the sponsor has assured constituents in the county of Lincoln that they are “protected”.   If in fact there is no danger to private water rights in off reservation lands, why would one county need protection?

One statement by supporters claims that passage of the bill implementing the compact will result in less litigation by the Tribes seeking water rights.  But, I see no spell-out of how that is practical or even possible.   The series of Indian water rights lawsuits since Winters v. United States, involve the extent to which Indian tribes and individuals can exert water rights in every body of water that runs into, over or under, or borders a reservation.  How will this compact or any compact short of just awarding Tribes water rights wherever they want them at the expense of ancient private water rights assure there will be less litigation over water?  In short, it cannot do so.   If the Confederated Salish and Kootenai Tribes have fishing rights reserved off the reservation, they can always argue that they need more water, even to the point of minimum stream flow, to provide sufficient support for their fishing.   If this compact protects against that, perhaps someone will be good enough to point out where.

In the meantime,

The opponents seem to be on point.  I will be interested to see whether the primary sponsor comes forward with answers to the detailed criticisms in the letter which follows.  Particularly, I will be interested to see whether he comes forward with answers prior to the committee hearing currently set for February 16, 2015.

Hold on for the ride on this political rollercoaster, and stay tuned right here for developments.  What happens in Montana can easily become the format for your private property rights.

Following is a letter from a former legislator to supporters of the compact:

[The compact] is unconstitutional! It seeks to overturn Article IX, Section 3 of the Montana Constitution and it pits the machinations  of the Reserved Water Rights Commission on behalf of the tribes and the federal government against the long held tenets of  Montana water law and the Montana Water Court. So it becomes a States’ Rights Issue.

It is prejudicial in that it holds tribal and non-tribal water users to different standards. Tribal water use is set at a  far higher standard than all other water right holders, as well as Irrigation Districts throughout the state.

Not one of the six previously negotiated compacts grants a tribal entity authority over non-reservation water. What is to  preclude any, or all, of them from seeking the same consideration? What is to preclude the Salish/Kootenai from bringing  suit at a later date to seek more authority,

e.g. the Crow’s action.  The Compact erodes the authority of the Water Court and allows a reservation entity the ability to  oversee water issues and property rights both on and off the reservation—a board, the members of which, are required to  have no knowledge of water law. There is no way to justify compromising the authority of Montana’s Water Court and granting  oversight of Western Montana water to enrich this tribal corporation.

The entire adjudication process loses its value if the tribes are exempted from compliance. Millions have been spent to  comply with the adjudication mandates to establish how much Montana water is being put to a beneficial use, where, and by
whom. The Salish/Kootenai have not quantified water they are claiming to have put to a beneficial use, rather resorting to  some previously unrecognized modeling system so even Montana’s long recognized “first in time, first in right” doctrine  loses its value!

How are we to understand the allocation of greater volumes of water allocated to tribal members than to non-indians? How  does that square with equal treatment under the law?

“Negotiated” becomes a misnomer when applied to this compact. What have the Salish/Kootenai offered in return for unlimited  access and control of our Western Montana water resources? They remind me of an attorney negotiating for the Crow when  asked what they wished to put forward in their compact, he replied: “Why do that when we already have everything there is  to gain and nothing to lose?”

Their “Everything To Gain” for the tribes” in the CSKT compact is mind-boggling! The promise of 1.2 billion from the  federal government and another 55 million from the state of Montana, plus control of Western Montana water use should be  way more than enough. However, along with the ability to control downstream use (Kerr Dam) (Hungry Horse Dam), comes the  potential to control the water level of Flathead Lake and ultimately the value of lakefront property so private property rights may also be added to the equation.

We have been told repeatedly that authorization of this Compact will save millions. We strongly disagree and believe the  courts will be clogged and backed up. It stands to reason that passage of this compact will result in the loss of  numerable citizen’s water rights which under the law constitutes a “taking” for which that owner must be compensated.  Should lakeshore property be devalued because of fluctuating water levels, that too could be viewed as a “taking” which  could end up in the court system. It is a sobering thought to consider that in any contested case it will be some hapless
Montana citizen vs. the U.S. Justice Department litigating on behalf of the Reservation Corporation.

Anyone can recognize that this is a win/win for the Tribes as they are asking for it all, and this Compact appears to be conceding to their every demand. We know that this will be costing Montana 55 million. We have examined the negative scenarios.  What we want to know is what, if anything, does Montana stand to gain in what appears to be the largest giveaway in Montana history? A giveaway for all time!

Only you have the ability to say “no” on behalf of your constituents and thousands of Montanans.

We do not plan to be silent about our position on this critical issue.”

Following is Opinion column published in Great Falls Tribune on February 5, 2015:

MEDIA BLITZ RAISES NEW QUESTIONS

Yes, we know that the Salish/Kootenai tribes are promised $ 1.2 billion if the CSKT Compact is approved & Montana is committed to pony up another $ 55 million.  Now we hear that upwards of another million has been added to the mix with the emergence of an intensive media campaign purported to be in the scope of a gubernatorial or presidential campaign—that much in radio contracts alone.

Concerned water users in the Clark Fork Basin, puzzled by the dubious assertions made by the spokesperson for the newly formed group, Farmers and Ranchers for Montana, have had their attention jerked to this even more puzzling development.  Who is paying for the radio ad campaign?  What special interest can afford the side bar ads on the Internet?  They are not cheap.

In an editorial printed here on 1/15 it was indicated that the expressed purpose of the above group is to “educate Montanans about the CSKT.  Yet there seems to be no substantive information made available and it seems to be the case with the other promotional ads too.  Only glowing statements supporting passage. How can they be so certain when the sponsor of the CSKT bill is still endeavoring this week-end to prepare what he described as a “risk analysis.”  This, too, grabs attention when the senator has stated that our county, one of eleven “off-reservation” counties whose water rights could be compromised, is protected.

Montanans do need educating about the 1400 (1500?) page CSKT Compact!  We need to learn exactly what Montana stands to gain, other than an ethereal promise of less water litigation. We need to know the cause of these actions hanging over our heads. Are they related to 12,000 actions threatened by the tribes if the CSKT is not passed by the Montana Legislature?  Anywhere else that could be perceived as a threat.

We need to know if Montana’s best interest here is the same as the interests of non-tribal water users who have properly filed on water they are putting to beneficial use and depending upon Montana’s Constitution and court system to protect their rights.

We need to know the ramifications of agreeing to a precedent-setting deal—the like of which never before in these United States has given a sovereign tribal nation the right to control distribution of off-reservation water.  We know that the U.S. Justice Department will enforce that right, once it is surrendered by Montana, but the big question is who will be defending the rights of John or Jane Doe?  Has any thought been given to the number of suits when they discover that their rights have been literally sold down the river?  And once other Tribal Nations view the bonanza granted the Salish/Kootenai, what is to prevent them from bringing actions to obtain the same advantage? Endless litigation.

Wake up, Montana, before special interests; Uncle Sam and/or the Salish Kootenai buy enough advertising to convince your legislator to capitulate to their demands.  Make no mistake—they want it all. and too many people we have sent to Helena seem willing to help them get it.   The U.S. Justice Department has never backed off from representing tribal interests on the reservations—now the Compact opens the door to a whole new playing field.  It makes perfect sense for the federal government to ante up 1.2 billion dollars if it can buy them the ability to see that control of water in the entire Clark Fork Basin is placed within their grasp as custodians of tribal interests. Water is today’s gold!

Thanks for the opportunity to comment.

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