©2015 Montana Land and Water Alliance

Submitted by Kate Vandemoer, Board Chair

It has been about a month since the dubious “passage” of the CSKT Compact by the 64th Montana Legislature and we still don’t know if the Compact was in fact legally passed or not.

From a review of the video record of the events leading to its dubious “passage”, it seems plain as day that a 2/3 vote of each house was required to pass the Compact, specifically because of the language in the Compact itself on pages 46 and 76 which granted the state immunity from suit.

The Montana Constitution permits the state to limit its ability to be sued but that requires a 2/3 vote of both houses of the legislature.  Neither the Montana House or Senate achieved the required vote margin for SB 262.  The Senate was short 3 votes and the House, 13.  But note: the House was within 3 votes of killing the compact 50-50.

Montanans have fought back against this Compact effectively and with truth.  And I think many believe, and the MLWA certainly does, that the fight now has just begun.  This post is an overview of our thinking as we move forward to fight back.

Phase I:  Legislative Strategy

The MLWA, along with many others, saw that our best and least inexpensive option to kill the compact was in the legislative process, although a lot of attention was paid to preemptive actions that would have prevented the state from even considering the Compact. Those were considered more detrimental to longer term challenges than simply killing the Compact in the legislative session. The legal strategy then was to develop and disseminate the ammunition to take down the Compact

Our attorneys focused on three major aspects of the Compact:  the Article IX and other constitutional violations through the UMO; the taking of agricultural water through the perversion of the Winters Doctrine; and the lack of merit to off-reservation instream flow claims in the aboriginal territory and east of the Rocky Mountains.  These papers document key aspects of history, federal reserved water rights of Tribes, the Montana Constitution, and water law that formed a basis for materials presented and utilized in legislative hearings and communications.

We assert that we–all of us– did kill the Compact in 2015.  And, not only did we stop it in the legislature, we defeated the Compact’s arguments hands down:

  • the existence of off-reservation water rights,
  • the Tribes’ ownership of everyone’s water including that belonging to irrigators,
  • the unconstitutionality of the State’s actions in giving away the state’s water and abandoning citizens
  • the unsupported expansion of federal reserved rights under the Winters doctrine
  • the unlawful and unsupported Tribal/federal jurisdiction over state citizens in violation of Montana’s constitution, state and federal law, and case law
  • the failure of the state to conduct any studies of the Compact’s impacts on the economy, environment, private property,

Those facts are on the record that has been built in these past two years, and it is a more factual record than the State of Montana’s, which bodes well for any future challenge by anyone.

The most unexpected outcome was a potentially invalid vote–from the “immediate” planning standpoint, it was either “yes” or “no” but not “maybe”.  So the most important thing that has happened to support all the work of the legislative strategy  is the filing of the lawsuit by the Flathead Joint Board of Control (FJBC) members challenging the validity of the vote, discussed previously on this blog with all legal documents here.

The Compact/SB 262 has not passed until there is resolution to this case and in spite of the governor’s signature.

Nevertheless, the “injunction phase” is the immediate action underway with an eye toward effective and cost effective practices to stop the compact in place if it is ruled valid.  We are fortunate to have the unexpected filing of the FJBC individuals(FJBCI) case as an excellent, sharp immediate response to an unconstitutional vote.  The FJBCI action  requests injunctive relief on implementation of the compact, but only until the vote issue/constitutionality is resolved.

The time afforded by this action has provided an opportunity to widely analyze and consider all the institutional levels in which the implementation of the Compact should be stopped, including the federal Bureau of Indian Affairs in any operation of the irrigation project, the Tribes’ federal action in terms of how much weight the unapproved Compact carries in resolution of that case (updated here),  and finally, the state DNRC and MTFWP roles in immediate implementation of the CSKT Compact without congressional approval.  Multiple legal tools will be employed.

The strategy and ultimate legal action(s) of the MLWA in this phase is to stop the compact from being implemented in any fashion or used in other proceedings until the Compact has been approved by Congress, the Montana Water Court, and the Tribe. This will entail a variety of legal forums, activities, and other actions.

Phase II– Pre-Congressional Review Challenges

Because of the Compact opposition factual record developed in the last three years, many legal, unconstitutional,economic, environmental, and property rights issues have been exposed and documented.

More importantly, the public is alerted and more engaged in this issue than ever before and “wise to” the antics of the media, politicians, and rule changes, all pointing toward corruption in high places.

When the injunctions are securely in place and/or with the compact vote ruled void, the next phase of legal, constitutional, administrative law, and other challenges begin. The Compact as a whole may be long, but it is an “easy” target in many ways as it stands on weak legs. Even the state admitted there would be pre-congressional challenges to the compact arising under legal and constitutional grounds.

But with the  long-term issues raised by the Compact, the Tribes’ federal lawsuit set to gear up again in early June (update here) and other on-going litigation, the likelihood is that all or some of these issues (land, water, liberty) will end up in the United States Supreme Court.  And probably should be to be finally resolved.  Original jurisdiction may apply here.

Our view is that this is where the multiple actions begin that are both independent and in support of existing legal actions. Some or all of these actions could be class action suits and/or collaboration with other on-going action.  And, while multiple actions may be appropriate, strategy is crucial—the MLWA’s guide in this phase–aside from funding– is to be sure the cases are meaningful whether they  win or lose.

To that extent, we will use the work of our attorneys  and on-going research as a basis for moving forward, and will engage our litigation arm as needed and collaborate with others in related litigation. Whatever the mix of efforts during this phase, it could be an important opportunity to get these issues to the Supreme Court and directly resolve the issues now.

Phase III–Congressional Review

We have always anticipated that when and if the compact got to Congress, it would be on a fast track., but when the Compact gets to congress it will indeed get a fundamental  review.

The rules for that review have changed as of February 26, 2015 according to the Chairman of the House Natural Resources Committee and described in this letter.  The Compact must undergo Interior and Justice Department review and certify that the compact meets the federal criteria—described in the letter– before the Committee even looks at it.

Ok, so the federal agencies will have a chance to review it.  Any likelihood they will provide the same robust review of the Compact that the state and tribes did?

The federal failure to perform any rigorous study of the scientific basis for or impact of its decision-making in the compact on and off reservation, including EPA evaluation, is a ripe target for action here, whether working with agencies during this review to change to or delay/defeat the compact, litigating the results of their review, or testifying before/working with Congress on such an evaluation.

And, what if, this is purposely ‘fast tracked’ to get it signed by Obama before he leaves office?  Will agencies implement the agenda look the other way and will Congress do the same?

It would appear that another  opportunity to litigate the issue in the US Supreme Court may arise.

Phase IV–Montana Water Court Phase

This is the phase where the particulars of the Compact— if they survive the vote constitutionality issue, and if they remain following congressional review–are challenged, many of them at the summary judgment level. Again, the foundation laid by the papers of MLWA attorney Richard Simms will be most useful in guiding legal challenges to the heart of the compact.It is in this phase that the 10,000 claims could be disposed of through summary judgment.

There must be an Attorney General in Montana at that time to ensure that Montanans and Montana’s rights are protected in this last-chance phase.  If it were held today, this Attorney General would give away the store and the kitchen sink. (note added: when the AG finally got involved in the Tribes’ federal lawsuit in June of 2014, he did move for dismissal in the case based in part on  a rule that the federal court cited in its current dismissal of the Tribes’ federal lawsuit.)

After the water court rules, then the next series of challenges ensue, most assuredly by the Tribes. If it hasn’t gone to the U.S. Supreme Court already, it will then.

The Path Forward: Action Now

In the long run, no one can afford to let all the other phases pass by before getting involved, and again, the Alliance’s effort is to stop this thing now and never let it get out of Montana. There are significant opportunities to stop and/or derail the compact through existing and new litigation now and into the future.

The MLWA welcomes your thoughts and suggestions.