© 2016 Concerned Citizens of Western Montana
We’ve all heard the story about the Emperor who hired weavers that promised him the finest suit of clothes made of fabric that would be invisible to anyone who was unfit for their position, or just plain stupid. The weavers were paid large sums of money and provided with the finest silk and gold, however the looms remained empty with the invisible fabric. While the clothes were being “made”, the Emperor and his ministers were unable to see them, but pretended they could for fear of appearing unfit for their positions.
When the non-existent suit was finished, the weavers then pretended to dress the Emperor in his new clothes. The Emperor then paraded before his subjects, who also went along with the charade for fear of appearing unfit or stupid. It was only when a child in the crowd, too young to understand the deception, shouted out that the Emperor was wearing nothing at all. Only then was the cry taken up by others. Sadly, although the Emperor suspected the assertions of his subjects were true, he continued with the charade.
Does this sound at all like the CSKT Water Compact?
For decades the state of Montana negotiated with the Confederated Salish and Kootenai Tribes concerning their federal reserved water rights. In the early years of negotiations, the state actually wanted to protect its resources and citizens, and rejected the tribe’s unreasonable demands for ownership and control over all the water flowing through, over and under the reservation.
With that, citizens of western Montana had confidence that the state’s efforts would bear the fruit of preserving the water rights they had come to count on, and provide certainty for the future concerning their water needs.
Unfortunately, instead of bearing that fruit, the state ceded to the Tribe all of their demands, including vast amounts of water throughout western Montana, and removal of many of its citizens from the protection of the state for their water needs, making certainty for the future impossible.
It is from that point forward a false narrative began. The state hired staff and attorneys for the purpose of developing legal clothes, a compact so beautiful that no one would dare challenge it for fear of being unfit or stupid. Having ceded everything to the United States / CSKT, including the state’s constitutionally mandated responsibilities, it became necessary for the state to “bullet proof” their “fine legal document” to limit their financial responsibility for the legal and financial challenges that would necessarily come with the passage of the water compact.
So the compact was built on a house of cards, using questionable “interpretations” of case law, rewriting history, creating water and access rights where none have ever existed, and developing talking points to ensure the public would believe that no better deal was possible. We can’t help but wonder if state, federal and tribal attorney’s laughed as they incorporated immunity and mutual defense language into their fine suit of compact clothing, so complicated, and so comprehensive that no one would dare challenge it.
In 2012, Chas Vincent, the chair of the Water Policy Interim Committee had already made his own deal with the tribe in the Kootenai basin. This is documented in the CSKT Tribal Council Minutes and confirmed by Vincent in public meetings and in his boasts at the senate hearing for SB262. While we can’t help but wonder if legislators have the authority to “negotiate” with so called “sovereign nations”, we do know that when it comes to the CSKT, you never get something without giving something in return. Was it the promise of passage of the water compact, no matter what the cost to the citizens of Montana?
In 2015, Vincent presided over compact “studies” and fed the public “legal” analyses by legislative services attorneys that had already failed to flag the compact’s legal and constitutional flaws. The several month dog and pony show deflected away the fact that the Water Policy Interim Committee failed to answer the serious questions of the legislators and the public. There were no independent or rigorous analyses done. To add insult to injury, the committee’s recommendations were little more than lipstick, designed to make it “appear” that the compact had changed for the better, when in fact they made it worse.
Once the compact’s suit of clothes was ready, Emperors Steve Bullock, Tim Fox and Chas Vincent couldn’t wait to try it on, throwing the full weight of their offices behind the compact, ignoring the serious concerns of the public and legislators, and actively lobbying for its passage.
Even with all that, it became necessary to change House Rules to force the compact to the floor after it died in committee, and to secure a simple majority passage of the compact. The attorney general’s office did all they could to help the seriously flawed compact over its manipulated finish line by downplaying concerns about immunity language in the compact, stating that immunity provisions in the Montana Constitution had been “drained of all significant meaning” and that a 2/3 vote of both houses was unnecessary.
Is it possible that the state’s overzealous efforts to sell the compact and protect itself from the consequences of a flawed compact could be their undoing?
Last week, briefs were due in the 20th District Court pertaining to the lawsuit filed by the Flathead Joint Board of Control challenging the simple majority vote in the legislature because of immunity language in the compact.
A copy of the FJBC brief can be found here. In our opinion, it paints a very clear picture of the box that the state of Montana tried to place its citizens in with this water compact, and shows just how far the state was willing to go to make sure it was protected.
At the Senate hearing for SB262 (the water compact) Chas Vincent said the following:
“Seventy five percent of the opposition were in here opposing the bill because they believe they’re going to have something taken from them, that they’re not going to be able to pursue the process that they should be able to pursue. And my message to you guys is to sit down and READ THE BILL …….”
“…… One of the things that you should notice is that a lot of things that were said in interpreting what is constitutional and what is not, did not come from the lawyers, it came from others who are acting like lawyers…. But the fact that I took the time to read all the case law and to find some lawyers that I did trust, when I got a guy like Corey Swanson over there who is just as “right wing” as I am looking me in the eye saying “you know what? This isn’t going to be good”…..this is from lawyers who are doing a risk assessment as to what we are looking at, because what we’re talking about here folks is a risk assessment.”
Is it at all possible that when completing the risk assessment on the compact that the state knew the compact included a grant of immunity that would eliminate their risk for financial damages?
We were told by a legislator that a high placed elected Montana official admitted that the compact had problems, but they were not concerned because it would be expensive and difficult for people to sue.
Difficult? How about impossible?
After you look at the immunity language in the bill and the compact’s MUTUAL DEFENSE provisions you can easily see that the state believes their only risk is in not appeasing the tribe.
Vincent then went through a litany of criticisms of the compact and responded “READ THE BILL” after each one.
Senator Vincent, READ YOUR OWN DARN BILL!!!
As to our Governor, Attorney General and Chas Vincent, who continue pushing the compact and its implementation, we wonder when they will realize that their compact of many colors, woven so finely by attorneys with an agenda to cover up the utter and complete capitulation by the state, is starting to fall apart in front of them.
So let us end with a very brief, 21 second video of Senator Vincent at the hearing.
Vincent thought he was standing there in his clothes close, having read all the jurisprudence, but oops, he wasn’t. It seems he forgot to READ THE CONSTITUTION, and so did the attorneys advising him.
Regardless of how the courts rule on the vote in the legislature, Montana’s support of a very flawed compact is exposed to all who are willing to see this for what it really is.
While we seriously doubt that Governor Bullock, Attorney General Tim Fox or Senator Vincent will realize they’ve been publicly exposed, they should be ashamed of the tribal water rights scam they have tried so hard to push onto the citizens of the state of Montana.
At what point does a violation of the oath of office to uphold the Constitutions of the state of Montana and United States occur?