©2016 Concerned Citizens of Western Montana
That wall is the LEGAL BARRIER to the Compact put into place by the Flathead Joint Board of Control (FJBC) leadership and attorneys in April 2015 to timely file the case challenging the constitutionality of the legislature’s vote on the Compact.
The FJBC v Montana case is not exactly about the Compact…it is about the whether the legislature needed a 2/3 majority in each House to pass the CSKT Compact. But the legal papers getting at the constitutional issue presented by this lawsuit have laid bare some key facts of the Compact that were hidden from the public view:
- The State Cannot be Held Liable for Costs, Damages or Attorneys Fees for the CSKT Compact Takings of Water Rights. The Compact appears to create a separate, distinct immunity for the State of Montana wherein the state cannot be held liable for costs, damages, or attorneys fees for its actions in creating and participating in the Unitary Management Ordinance. This immunity may extend into the federal court system through the Eleventh Amendment to the Constitution.
- The Unitary Management Ordinance and Board completely removes the customary court remedies and pathways afforded to all other Montanans. A mutually agreed upon “court of competent jurisdiction” replaces the state court system with the final redress in federal court which may or may not have jurisdiction over the issue presented. This is at heart a due process violation–irrigators will never get their day in court.
- The Compact’s Compact Implementation Technical Team replaces the BIA and the Flathead Joint Board of Control as operators and managers of the Flathead Irrigation and Power Project. What this would mean is that the Compact would supersede the BIA and/or landowner management per the 1908 Act requiring the turnover of the project to the land owners.
Thus the true plan has been revealed: the Compact effectuates a fundamental property rights taking and transformation of the ownership and control of water away from individuals and the state, gives it all to the federal government, and the state is not responsible for the costs, damages, or attorneys fees resulting from that action. Under this compact scenario, potentially billions of dollars in damages would result from the taking and damages.
No wonder Article II Section 18 of the Montana Constitution requires that 2/3 of each House of the legislature agree with the proposed Compact immunity! If the legislature is going to exempt itself from paying damages for property takings resulting from their “water compact” legislation, 2/3 of the legislature representing Montanans has to agree.
The action filed by the FJBC attorneys was and is EXACTLY the right thing to have done after the legislature’s bombastic, ill-advised and potentially unconstitutional vote on the CSKT Compact. Absolutely no one can say the action of the FJBC was not in the best interests of all irrigators. Let us also be clear: this lawsuit also helps tens of thousands of non-irrigator citizens across western Montana too.
The Fortress Under Attack
The carefully constructed wall standing between irrigators, non-irrigator citizens, and the CSKT Compact, however, is under attack from both the usual external suspects, but now more insidiously and dangerously from within.
It is easy to see from the State’s responses in the FJBC lawsuit how angry they are in protesting that the issues raised by the FJBC are not relevant to the Compact. The state is basically saying that the FJBC–whose water rights will be taken by the compact–has no standing to protect their own rights. Notice that this is the line of compact proponents such as Dick Erb, Susan Lake, and of course the entire machinery of the Montana executive branch.
The Tribes believe that the Montana Constitution does not apply to the reservation or the Compact, so that non-Tribal members and the FJBC have no right to raise any objection to the Compact. Notice that neither the state nor the Tribes appreciate anyone standing up for their rights.
They are trying to chip away the wall.
We believe that the state and the federal government want this compact so badly that they will use any avenue they can to derail and dispose of any compact opposition. This includes the current efforts to replace the leaders of the FJBC with pro-compact or pro-chaos individuals who will effectively prevent the FJBC from protecting water and power rights.
It would not be surprising if the state or the federal government sent agitators disguised as compact opponents to Montana to stir up chaos, seed doubt about the compact opposition, and fiercely from within call into question the competence of the real compact opposition. In so doing, these chaos-producers harm everyone.
They are chipping away the wall, whether they know it or not.
Those who truly understand know that the CSKT Compact will destroy agriculture in western Montana, and with that economies, heritages, and the ability of our children to inherit that which their fathers and mothers lawfully secured. Of course there are “larger issues”, but those who understand the situation now know that the CSKT Compact is a very big weapon to use against property rights and it is very much a part of that larger plan. And it is time to kick the legs out from underneath this plan to destroy Montana agriculture.
We urge both irrigators and non-irrigators to support the protective actions of the Joint Board of Control, and to thank them for their efforts. The Joint Board’s efforts are IMPORTANT TO ALL OF US who live and work in western Montana. We are a community.
If irrigators fail, we all fail. If they succeed, we all succeed.