©2015 Montana Land and Water Alliance
During these last days of summer, and while we all have a moment to “do life” as the FJBC legal action on the compact vote is in court, an opportunity is provided to remember that everyone who stood up against the injustices of the CSKT Compact willingly and voluntarily undertook that fight with no reservations, no regrets, and no retreat.* These actions defeated the CSKT Compact in 2013, and in our view certainly assisted the defeat of the compact in 2015.
Long before any of us began working on this, people like Senator Verdell Jackson, Mr. Rory Horning from Polson, and countless irrigators from the Mission Valley within the reservation were concerned about and involved in the CSKT Compact through public meetings, correspondence, and direct communication with the MT Reserved Water Rights Compact Commission. Those records are in the files of this Compact and were used and are found in the attachments to our analysis of the Governor’s Report on the CSKT Compact (Feb 2014).
Even before that, the extraordinary filing of the irrigators’ water rights with the State of Montana just in time in 1982 is an exciting tale of courage, respect for neighbors, and recognition that the Bureau of Indian Affairs (BIA) was absolutely not going to protect irrigators who had developed the Flathead Irrigation Project. But that is a story for another day.
The “recent” work on the compact, written about in this blog, began in 2012, when two loosely affiliated groups within the reservation initiated activity both on and off reservation. The record we have built includes identifying the fundamental flaws with the Compact, writing about them, and securing the legal backing for our arguments through the attorneys hired.
Importantly, the state was never able to refute any of the arguments that citizens have raised against the compact. Nothing they said, did, or wrote passed legal muster, heck, even the straight face test. They only got the compact “passed” by telling half truths, ignoring history, law, and precedent, changing the rules, ignoring the Montana constitution, and by spending gobs of taxpayer money trying to cover up the truth and demonize opponents.
Let’s review the solid arguments that have been developed and used to defeat the Compact. Remember the factual record that has been developed by citizens, and the legal analysis completed by MLWA attorneys are the ONLY FACT AND LAW BASED arguments that exist on the compact outside of the propaganda of the State. Nothing was wasted or lost, and this factual record will get to Congress and be used in court.
The Compact is an Unconstitutional Taking of Irrigator Water Rights and Off-Reservation State Law-Based Water Rights
Despite the Compact Commission’s onslaught of 12 meetings between Thanksgiving and Christmas 2012,legal action by the Western Montana Water Users Association blew a hole in the compact scheme by preventing the old Flathead Joint Board of Control (FJBC) from giving away irrigator water rights through the 2012-2013 Compact’s Water Use Agreement.
That further led to the first major legal opinion that existed declaring portions of the Compact to be an unconstitutional taking without compensation. The McNeil decision was overturned on other grounds, but the Montana Supreme Court could not overturn the unconstitutional finding because it was not argued at the District level. Thus the fact that the Compact represents an unconstitutional taking of irrigator water rights STILL STANDS. Nothing the Compact Commission did between 2013 and 2015 changed that basic part of the compact. Instead the 2013 “water use agreement” became the 2015 “adaptive management” section, which reflects the same transfer of the bare legal title of irrigators’ water to the CSKT and reduces the amount of water going to the irrigation project by more than half.
Fast forward to the retention of MLWA attorneys in 2014 about a year ago. Through a series of direct letters to the legislature and elected officials, which were widely distributed here and are in the public record, the legal arguments, factual evidence from the Compact itself demonstrate not just one, but several violations of Montana and the U.S. Constitutions and existing state and federal law.
To this day, and as argued from 2012 through 2015, the CSKT Compact is an unconstitutional document on multiple fronts, and the evidence, documentation, and legal research is available as a solid foundation for further action.
Off-Reservation Water Rights in Western and Eastern Montana are Prohibited
Through the work of citizens, legislators, and attorneys, the entire basis for the CSKT claim to off reservation water rights in their aboriginal territory west of the Continental Divide can be easily challenged based on the existing law that the state misused, as discussed in the MLWA attorney memo found here. This memo also discussed whether the 10,000 claims filed in eastern Montana had any validity based on legal, factual, and historical grounds. In a nutshell, they don’t, and there is ample evidence of that which will be argued in court.
The Grand Bargain–Unitary Management Ordinance is Prohibited by Federal, State, and Tribal Law
There were several “must haves” that the Tribes laid down as a condition for its participation in any discussion with the state: they had to have control of all the water on the reservation. That was the Unitary Management Ordinance, and they have had this objective publicly since at least 2003. They finally achieved their objective in 2013.
Based on the research and reading undertaken by many individuals and the legal work undertaken we have effectively proven that the Unitary Management not only violates the state and federal Constitutions, but is prohibited by federal and state law and Supreme Court case law, including:
- Treaty of Hellgate
- Indian Reorganization Act (1934)
- Public Law 93-280
- Montana v. U.S.
- Title 85 MCA
It is pretty obvious what the State of Montana, the CSKT and the United States were doing in this Compact: ignoring the law, the MT and US constitutions, and imposing the UMO on the citizens of western Montana residing within the Flathead Indian reservation (FIR). These are fundamental weaknesses of the UMO which will be litigated and won to thoroughly defeat the UMO and the Compact.
Montana was warned about the certain legal challenges that would overturn the compact based on these fundamental violations of the constitution and laws hiding in plain site! A review of the violations of the Montana Constitution are described in the Memo CONSTITUTIONAL VIOLATIONS BY COMPACT RATIFICATION. Montana’s willful ignorance of the law in spite of these warnings could very well lead to the UMO/Compact defeat even in state court. Remember, a highly placed elected official knows the compact is unconstitutional and is counting on lawsuits being “too expensive” for the citizens so that we will sit back and swallow this travesty.
Data, Instream Flows, and Irrigation Takings are Scientifically Unsupported
The major accomplishment in especially the last year regarding the Compact’s instream flows and irrigation water takings is to get the state to confirm everyone here’s view that all of the “hydrology” used to support increased Tribal instream flows above the interim flows, and the reduction of water to irrigators has no scientific basis.
The water for the tribes’ increased instream flow is derived from hypothetical “improvements” to agricultural practices (like irrigation rehabilitation and betterment projects, reducing field applications of water, and cutting off stock water) that result in a savings of water which is then transferred to instream flow uses. There was no evaluation of flow needs of fish including for habitat that supported the need for an increased instream flow. The fancy tax-payer funded Tribal hydrologic model failed, and the proceedings of the Water Policy Interim Committee’s (WPIC) technical work group in the summer of 2014 prove it.
Reduction of water to irrigators in the FIP under the Compact is an illegal taking and also violates the federal rules governing the operation of federal irrigation projects. It is a violation of the United States’ contract with irrigators since the development of the project began in 1908. And the federal government cannot contemplate such a large change in water use without an environmental and economic impact assessment required by the National Environmental Policy Act (NEPA).
Because the state, tribes and United States cannot justify either the reduction of water to irrigation or the increase in instream flows, the 2015 compact contains this thing called “adaptive management” where they gather the data to “prove” the tribes’ model and experiment with “finding a balance between instream flow and agricultural diversions by measuring them. We believe this will result in the destruction of the Flathead Irrigation Project.
You see, the state could not defeat the scientific arguments either, so they “worked around them”, aka, “adaptive management”.
In a court of law involving federal reserved rights, however, the proposed claim, if for fish and wildlife purposes, must be scientifically justified or you simply lose the claims. End of story. Under this test, the CSKT will likely lose their increase instream flow claims in the MT general stream adjudication. Or let’s put it this way–those claims will be very easily challenged. The interim flows were based on science and will likely remain, but anything above the interim flow is unjustified and cannot pass legal muster.
For a look at how federal agencies must comply with extensive data requirements that are in addition to NEPA to justify their plans to reduce your water use and increase instream flows in a federal project, check this link. This is a powerful tool, and we know that the BIA, Bureau of Reclamation, and the Tribes cannot scientifically defend or justify this compact.
Fundamental Assumptions are Wrong
After having waded through, analyzed and found nearly every flaw with the Compact, it was startling to realize that the major assumption of the compact, contained on the first page as the first “Whereas”, was THE MAJOR FLAW. Again, hiding in plain site.
Here it is:
Whereas, pursuant to the Hellgate Treaty of 1855, 12 Stat. 975, the Confederated Salish and Kootenai Tribes reserved the Flathead Indian Reservation
This clause paves the way for the entire compact–the expansive definition of the reservation as “Indian Country,” the taking of irrigator water rights, the ownership of all the water, management and administration of all water, and the instream flow claims off the reservation in western and eastern Montana. It is also legally incorrect.
First, it is absolutely a misuse of the Canons of Construction doctrine to state, in the face of history, the treaty, and law, that we must interpret the Hellgate Treaty as what the CSKT is telling us that they understood it to mean today–that they reserved everything.
Federal reserved water rights are derived from the federal, not tribal reservation of land. Otherwise, there would be no compacts with the Forest Service, the Charles M. Russell reserve, or the National Park service. This incorrect assumption is yet another avenue which will crush this compact and everything it leads to in a legal forum.
That the state was unwilling to see the truth prompted yet more legal research to prove this assumption of tribal reservation of lands is a complete falsehood. Why is it necessary to defeat it? Because courts look to the “whereas” sections when they have a hard time deciphering a long, complex legal case–e.g. the CSKT Compact.
Can you imagine Montana’s embarrassment when they have to defend this compact and the first paragraph before Congress (which does the reserving) and a court of law that knows what federal reserved rights are?
This could be a painful experience for Montana especially in light of them bragging that Montana’s compact commission is the way to address the federal reserved rights of tribes across the country. Will someone ask them, “What part of federal reserved rights do they not understand”?
And look at the travesty done to Montanans and the western United States by those promoting this compact. Those names will be remembered forever.
All Quiet? Not a Chance!
We’re all “meetinged out”, and it seems “quiet”, but not a chance. There is no retreat on this Compact fight.
Think about this in the last three years: 154 weekly meetings, the thousands of documents on this blog and hundreds of articles, the hearings; the three dozen, public meetings and workshops held across western Montana, the trips to Helena for lobbying and to attend “every other meeting elsewhere”…and then to see the lies, advertising, rule Gerry-mandering in the Montana legislature that allegedly passed the Compact…by the time the summer of 2015 came around, who wasn’t exhausted?
The WPIC meetings were a counterfeit attempt to “analyze” the Compact. Instead of giving it a serious view, the WPIC and staff systematically “made up” all the legal and historic arguments and science, to “back up” this outrageous compact and to attempt to counter all the evidence presented to them.
These weaknesses remain in the Compact and in the public record. And that’s the point. Disagree with tactics or not, but all of this information that proves this compact is illegal is on the record. That is worse for Montana in a court–they were warned and ignored it. No wonder they want to be immune from damages, costs, and attorneys fees…they don’t want to pay penalties for the costs of violating the people’s rights and Montana Constitution!
Remember, if you’re not over the target, you don’t get any flak
The work of citizens against this compact has been very effective since 2012 when it started. The legal, constitutional, technical, and federal reserved rights information is solid and was never refuted. That is the basis for moving forward in court.
Because of this success our all of our efforts, and planned litigation, the state, federal government, and tribes still know they have trouble with this compact despite their pronouncements of “passing it in the lame duck session.” They know we have solid arguments and also that we’re not going away.
They must still destroy the Compact opposition using any tool they have at their disposal, and will exploit any crack in the compact opposition they can using multiple directions of attack. For example, what could be more effective in destroying the chances of defeating this compact as a community and with the resources in place than fanning the flames of division, distraction, and doubt on everything that has been done to date?
So, we must be over the target.
*From a sermon by Pastor James Huff, Bible Presbyterian Church, Kalispell, July 2015