©2016 Concerned Citizens of Western Montana

Introduction

kerr-dam-cropped3.jpgWe are pleased to offer readers a year-end review and year-ahead view regarding the CSKT Compact, and invite you to grab your favorite beverage and join us for a little while. This essay is not exactly a ‘trip down memory lane’ so much as a reminder that we  stand on a solid informational, practical, legal, historical, and moral foundation for the work ahead.

For in reviewing  2015, it is worth remembering that all of the organized compact opposition work began in 2012–three years ago. The “work” involved researching the law, extensive reading across multiple disciplines, internal discussion, litigation, dissecting the Compact, creating written and visual materials, hiring attorneys, communicating with legislators and other decision-makers, testimony in legislative hearings, and extensive public education.

The factual information and public record generated by these efforts  is the only compact-specific information that exists to counter this compact in every forum going forward: lawsuits, congress,  discussions with your neighbors, colleagues, decision-makers, and most importantly, letting your children and grandchildren know about the history here and this fight for water and life.  No one here needs to “start from scratch” nor is there time to reinvent the wheel.

Think of the alternative:  if there had been no opposition, and if the Compact had passed in 2013, where would this community be right now?  The compact was defeated in 2013, allegedly passed in 2015 but even now, the Compact is being held at bay as a result of the courageous action of a few, on behalf of the many.

The message to the legislature and other compact proponents from all of us compact opponents is that you can spend millions, lie, threaten, attack compact opponents, and change the rules but you can’t defeat the people or the Constitution fair and square.  And so we enter 2016 with a solid foundation to stand on.

2015–Orchestrated Political Theater– But the Compact Remains in Legal Limbo

The materials, information, and unassailable legal analyses developed by the compact opposition from 2012-2015 forced the compact proponents into a tough position in 2015. Even with the so-called “studies” completed by the Water Policy Interim Committee, the compact proponents at the state, federal, and tribal level failed to address the significant shortfalls identified by the affected public as early as 2012.

More significantly, when the Governor vetoed Senator Jackson’s bill  in 2013, he cleverly set in motion a political process–which would include a report and a Water Policy Interim Committee study–that would last for two years up to the 2015 legislative session.  Why is that important?  Because its hard to sue a “process”.

The “pretend studies and negotiations”  that were orchestrated  after the compact’s defeat in 2013 and through 2014 did not materially change the 2015 Compact at all.

The 2013 “Water Use Agreement” became the 2015 “Adaptive Management Plan”–both with forced compliance and  the transfer of the bare legal title of irrigation water rights to the CSKT–a taking plain and simple.  In the Compact, the CSKT then transfer the use of 80% of the agricultural water to instream flow!  There goes the Flathead Irrigation Project!

Publication2Make no mistake about this:  the transfer of the bare legal title of irrigators’ water rights to the CSKT not only is a Fifth Amendment taking without compensation but it is a direct denial of the due process right of irrigators to have their claims heard in and resolved by the Montana Water Court with status as the original beneficial owner of those federal project water rights.

This critical issue involves under what circumstances the irrigator’s water rights are heard in the Water Court.  In the 2013 Compact, irrigators were required to relinquish their water rights to the CSKT.    The big change touted by the state in the 2015 Compact was that they no longer would require the irrigators to relinquish their water rights, but instead their water rights were simply confiscated–the bare legal title to the water rights being transferred to the CSKT in the Compact.

The state basically said in the 2015 CSKT Compact:  “Hey, we know we transferred the bare legal title of your water rights to the CSKT,  but you irrigators (whose water rights are now owned by the Tribe) can still go to the Montana Water Court to defend them.”

So without the Compact, irrigators go into the Water Court having their historic water rights affirmed.  With the Compact, irrigators go into the Water Court in a defensive position–defending them against the ownership of the CSKT given up in the compact.  You’ll get a water right, but how much water and will it reflect historic use?

The negotiation actually trumped the irrigator’s right to have their water rights adjudicated fairly in the Water Court by transferring the bare legal title to the CSKT before those rights are even heard.   The takings and denial of due process are precisely why the state wants to grant itself immunity from damages, costs, or attorneys fees.

The political theater continued into the legislative session with the precise intention of passing the CSKT Compact and medicaid expansion, two of the governor’s priorities.  But it was no cake walk.

In order to “pass” the Compact,  they had to lie misrepresent the compact to the public and legislature, threaten local individuals, businesses and  legislators behind closed doors, and degrade citizens in public and the press.  They had to change the legislative rules, spend millions of dollars, and create “front groups” to spread the false propaganda of being “Montana’s Compact” solving everyone’s problems and protecting eastern Montanans.

larry moeIt was orchestrated political theater designed to deceive the public and legislature.    Practically, this meant that the Compact was never reviewed nor  did it pass on its merits.

The work of compact opponents made it difficult for the compact’s passage, and after lying, rule changes, arm twisting, and the expenditure of millions of dollars, the compact allegedly passed by a mere 3 votes, the fewest votes of any compact in Montana.  Two of the three votes were from local politicians who sold their constituents and Montana’s economy down the drain: Dan Salomon and Greg Hertz.  Some legacy, eh boys? (rhetorical) Seriously, do they deserve reelection?

But  the Compact was thwarted once again by a very timely and accurate suit filed by individual members of and the Flathead Joint Board of Control (FJBC) challenging the constitutionality of the legislature’s vote on the Compact, SB 262.  The suit focuses solely on whether the legislature needed a 2/3 vote in each house to pass the compact according to Article II Section 18 of the Montana Constitution.

Our analysis of the compact clearly indicates that the state plans to initiate takings and needs the immunity to avoid the hundreds of millions of dollars it will cost to compensate for the damages, attorneys fees and costs of the takings by the Compact. In our view, the state actually did need the super majority vote on the CSKT Compact in both houses to pass SB 262.

On December 2, 2015,  Judge Manley denied the state’s motion to dismiss the FJBC case and will hear arguments in March 2016.

So as 2015 ends, the result of all the compact opposition work, and a very timely filed lawsuit, is that the Compact is in limbo and going nowhere fast.

2016:  Holding the Line and Dismantling the CSKT Compact

It is our assessment that the CSKT Compact  must and can be defeated in Montana.  Waiting to fight until after Congress rules is not an option in our view,  There is a lot of work ahead.

Holding the Line–Questions to Live By in the Fight Against the Compact

As we begin an outlook assessment of 2016, it is useful to put forth a set of principles we have developed guiding the work of Concerned Citizens of Western Montana (CCWM) since 2012 that continue to guide our work now.

Questions which have guided CCWM assessment of what activities to be engaged in, what strategies to follow, how to use our limited resources:

  1. Does the activity/program/issue/organization have the goal of stopping THIS CSKT Compact, including all its components—the water use agreement, the off-reservation water rights claims, and the unitary management ordinance?
  2. If the activity/program/issue/organization is focused on one of these issues (for example, the irrigation water use agreement, the off-reservation water claims, the unitary management ordinance), do the actions help stop this Compact in its present form?
  3. Do the activities/programs/issues/organizations/efforts divide the community or unite it?
  4. Do the activities/programs/issues/organization/efforts provide avenues that our opposition (compact proponents) will use against us or to divide the community?
  5. Where is the battle being waged on this compact?
    1. “Hearts and Minds”
    2. Legislature
    3. Local government
    4. Courts
  6. Will the activities/programs/issues/organization/efforts lead to environmental, economic, regulatory, legal evaluation of the proposed CSKT Compact?
  7. Will the activities/programs/organizations/efforts lead to killing the compact?
  8. As we proceed forward in the fight against the compact, are we working at odds with or against each other, or focusing on the true enemy known as the CSKT Compact?

Things that CCWM has purposely avoided:

  1. Focusing on individual or personal attacks
  2. Spreading misinformation or disinformation
  3. Playing politics

These guidelines and questions have been used to evaluate every issue we worked on to ensure it was compact-related and focused on its defeat, and also to ensure that the issue would not become a distraction. In a nutshell, if it doesn’t contribute to the absolute defeat of the CSKT Compact and principles associated with it, we’re  not interested!

We will remain focused on the compact and associated water rights issues until it is stamped out like the true danger it represents and fire that  it is.  We have to play it smart.

Dismantling the Compact

There are some factors that control the timing of any litigation on the compact going forward.  First is the FJBC v. Montana suit.  Technically we don’t know if there is a compact or not right now, so no litigation outside of this suit will go anywhere until there is or is not a compact.  As as the compact is in legal limbo, so are other legal actions at this moment!

But we don’t take anything for granted here so prepare for the worst while hoping for the best.  The worst will be that for some reason the compact vote is ruled valid and the compact becomes state law.  Any decision the District Court makes will be appealed to the Montana Supreme Court.

The best way to describe what we must do going forward is to dismantle the compact.  Remember it was submitted as a 1,500 page document with millions of moving parts, none of them final or clear?  But in this monstrosity there are several key weak points, many of them discussed in this blog, that when litigated at the appropriate time can cause the whole humpty dumpty compact to fall.

In reality, the best thing about the CSKT Compact is that it is so bad in so many places that there are literally multiple litigation targets.  So dismantling the compact will involve going after the “legs” of the deal, including the taking of irrigation water rights.

Weiner_CutoffAs any builder knows, the strength and integrity of a building foundation is essential to everything constructed from there on up.  To build this enormous hoax known as the CSKT Compact, several foundation building blocks had to be used that are fatally flawed, weak, cracked, and legally vulnerable.  The compact architects didn’t expect anyone to be looking.

If Humpty Dumpty the compact doesn’t fall on its own weight, gnawing on the foundation’s weak links by the compact opposition efforts will surely bring the wall down and humpty along with it.

In broad summary then, of what is coming in 2016, we begin with the fact that the Compact will either be ruled void or valid as an outcome in the FJBC v. Montana lawsuit.   Let’s be clear about the next steps after this:

  • If the compact vote is ruled void by the District Court, and that is upheld by the Montana Supreme Court, the compact is literally, dead in the water.  The next step will be for all the water claims to be heard in the Montana Water Court beginning in January 2017.
  • If the compact vote is ruled valid by the District Court, and upheld by the Montana Supreme Court the compact will become state law.  The next step here is litigation on the compact because as state law it is ripe for litigation even if it is being considered by Congress.

Under the BusImportant to note that in either case, we expect the state to keep trying to implement the compact and the clear warning is to expect any number of surprises as this state will not stop until it is stopped.

For example, what is to prevent the state, as long as the executive is occupied by Steve Bullock or Tim Fox, from continuing to re-introduce the CSKT Compact in its current or some altered form–mind you that doesn’t change anything in it–to multiple legislatures until it gets what it wants?

Thomas Jefferson said “Eternal vigilance is the price we pay for liberty

Regarding the need for litigation, there is no choice but to do so.  The State of Montana has betrayed and assaulted its citizens. The real consequences of this compact will fundamentally destroy agriculture and the economy in the Flathead and Mission Valley in western Montana.  Importantly, if the Compact is not signed by Congress in four years, any party has the right to withdraw for the compact, making it null and void.  In addition, we expect the basic elements of the Compact to be challenged through the normal claims analysis and adjudication process which begins in 2017.

As mentioned very early in this post, the foundation to litigate—that is, what to litigate, when, in what court has been laid by the last three years of compact opposition work.  And thankfully, “throwing the kitchen sink” at the compact is not necessary as the targets have already been identified.  In fact you could probably name them yourselves now, if you’ve followed the compact struggle.

What Are You Doing to Bring the Compact Down?

So we come to the end of this post, and I thank you for making it this far! I won’t ask how many “favorite beverages” you have had to do so!

irrigIn this effort to provide a review and a look forward, and identify the broad avenues that we are working on and believe are available, the question always comes back to what can I do individually and what can you do to stop this compact? Those of us who are working against the compact ask this question of ourselves and our organizations every day. When one realizes that the compact means that the livelihood of thousands of families living around you and many communities are at stake, each person’s actions can make a difference.

In addition to continuing the work outlined here, for our part, we intend to spend some time on this blog with informational articles on Walton Rights,  how to get your water rights in order, the Montana General Stream Adjudication process, updates on court activities, and other topics of relevance to the compact.

We hope that the CCWM guidance questions presented above can help you discern the news you read, activities you follow, the actions you take, and the information you hear, read, or research as we move forward in 2016.

No one said the fight was going to be easy. But fighting the compact is our clarion call, its why we are here right now.

And we intend to win.

 

 

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