©2018 Montana Land and Water Alliance

Yes, you read the title correctly, and no, the work is not done yet.

But, we have not been defeated precisely because we exposed the CSKT Compact for what it actually was: a redistribution of wealth hidden beneath an “Indian water settlement”. The state of MT executive collaborated with the Tribal government and the United States to deprive state citizens of a number of constitutionally-guaranteed rights.

Before we begin, let us be clear that the CSKT compact harms individual Indians as well as non-Indians, especially Indian irrigators who will also have their water reduced under the compact’s provisions.  Individual Indian allottees are harmed in the same way that the Crow allottees were harmed by the Crow compact settlement. The fight here recognizes all citizens’ water rights are harmed.

The Exposure

The last thing that the compact proponents wanted was to have the true contents of the compact revealed to either the public or the legislature.  That’s why the CSKT Compact was buried in 1,500 pages of text, abstracts, appendices and maps, all of which were necessary to understanding the plan and operation of the compact. There were untested legal theories, clear misdirection and avoidance of federal law, and violations of state and federal constitutions that led to the illegality of the CSKT compact which were buried under some magic of “ten years of negotiations”, and “hard choices”.

We persisted, and despite being ridiculed, ignored, and defamed, the citizens uncovered many truths about the compact, among them:

  • The so-called “complexity” and length of the compact were used to justify propaganda and platitudes–instead of facts–delivered in so-called “public education” meetings held in 2012 and to the legislature in 2013 and 2015.  The uncomfortable facts of the compact would never have gotten to the public without the citizens’ efforts and the citizens’ organization of more than a dozen public truth-telling meetings.
  • The “science” beneath the compact was promoted as impeccable until the citizens compelled a legislative committee to examine it, and then oops! the state itself found out that none of the so-called science could be used to justify the actions in the compact.
  • The legal “justification” for the Compact was shattered in every way through the work of attorneys hired by citizens, from the bogus claim that Article III gave the Tribes off-reservation water rights instead of access, to the state’s abandonment of its constitutional obligations to its citizens, and to the unconstitutional takings that resulted from the Water Use Agreement, the CITT, Unitary Management Board, and Unitary Management Ordinance.

As a consequence of our collective work, the Compact Commission had to lie to and mislead the public, the legislature had to change the rules to pass the compact with a simple majority, the Attorney General had to abandon the rights of its citizens guaranteed by the U.S. and Montana Constitutions, the tribes spent millions on advertising and lobbying, and the courts had to rule politically instead of based on the law and facts.

But, as a state law now, the inconvenient truth is that the CSKT Compact remains unconstitutional despite the political opinion of the Montana Supreme Court. And therein lies our opportunity to stop the compact still here in Montana.  On the federal level, fortunately, Tester’s bad burrito is dead–for now…but we don’t think it will be popular for his campaign to run on an unconstitutional taking known as the CSKT Compact.

All of the arguments you see now in the press in favor of the compact are not based in fact.  For example, the state’s new line is that “the CSKT Compact was the most examined compact of any compact ever”, when the truth is that the facts leading to the unconstitutionality of the compact were never examined or entered into a court of law but were instead deliberately buried.

These state employees were so busy forcing the compact down our throats and desperate to get it passed they didn’t notice that the whole show has been unveiled, with names attached. Ha.

Revealing the State and Tribal Road Map

Importantly, the citizens’ efforts got the state, tribes, and federal government to reveal their road map for the future.  And this is why every Montana citizen should be alarmed at the state’s role in forcing the CSKT Compact on its citizens–we’re going to see more rogue behavior by them all.  Here are some glimpses of the road map ahead of these entities:

  • The Tribes.  Aside from the compact bold and flagrant takings, and Tester’s Bad Burrito, the Tribes demonstrated their long term road map through their 2014 lawsuit “against everyone”. While ultimately dismissed, the lawsuit demonstrates that the goal is the total ownership of all land and water within the reservation boundaries and the uncompensated taking of private property.
  • The State of Montana Attorney General.  The MT AG’s response to the fact that the compact represents a taking under the Constitution was rebuked by AG Fox under the color of law by stating that the 5th Amendment takings only applies to citizens that are “similarly situated”, and that non-Indian citizens on the reservation “should have known” when they settled that the land and water belonged to the Tribes and that they would be under Tribal jurisdiction. Every Montana citizen should be concerned about the safety and security of existing property rights given the Attorney General’s propensity to ignore them. The breathtaking failure of the state of Montana to represent all of its citizens–not just the CSKT tribal corporation–resulted in a reckless experiment called the CSKT Compact imposed upon 360,000 people in 11 western Montana counties.  The goal appears to be the wholesale delivery of private property rights, water, and natural resource control “to the Tribes”, actually the federal government. In both the state and federal agency or legal spheres, no one represented the non-Indians.
  • The Federal Government.  The federal government’s voracious appetite for the control over state-based water resources and private property rights was further exposed by the nature of this compact, which expanded the Tribes federal reserved water rights beyond what is legally allowed.  The BIA, constantly threatening the irrigators over the CSKT Compact, promised to increase instream flows and deprive irrigation water use over new instream flows pending an environmental review (which never happened). Simultaneously with the introduction of the CSKT Compact were several large scale federal efforts which would have shifted managerial control over natural resources to the federal government, again under the guise of “tribal” settlements or jurisdiction.  Witness the Klamath Basin, the Wyoming v EPA case, the Waters of the United States Rule, and the effort by Senator Daines to “treat” public forests and rangelands as tribal lands for the purpose of planning and management.  While the advent of the Trump administration offers significant opportunity to stem this federal tide, we have to watch our own congressionals and agency leaders.

Thus the road map for the state, tribes, and federal government will consist of the continued attempt to destroy property rights through legislative fiat—legislation crafted by the crafty and passed before an uninformed and unsuspecting legislature; filing of lawsuits along the lines of the Tribes’ 2014 lawsuit; federal legislation aimed at asserting federal control over natural resources under the guise of tribal issues, the environment, or endangered species; and other thinly veiled pretexts for resource control.

When things slow down a bit, remember the pattern—the Tribes always try something, and if it fails, disappear for a few years, and then try again counting on everyone to forget.  And that is why now you must take the time to study and know. THIS is probably the biggest lesson from this compact—don’t forget.  Remember, ‘the price of liberty is eternal vigilance’!

But for now, all of the state, tribes, and federal malfeasance has been exposed and documented. The facts that led directly to the illegality and unconstitutionality of the CSKT compact, however, were not allowed to be presented to or considered by the public, legislature or the Montana courts. Frankly, the work of citizens was treated by the state, legislature, courts and compact proponents as unworthy of consideration.  While true and undisputed, these facts–and citizens–were ignored and minimized, as the press willingly complied with spreading the state and Tribes’ propaganda. Whose money bought all the lobbyists, save three, and legislators in Helena in 2015?

Because of our efforts the years-long exposure of the unconstitutional CSKT compact if now advanced appropriately and by all, will alter the final form of a  “CSKT Compact”, if there is one, and thus ultimately the final form of the state law that now exists.

Which brings us to the present day.

The Road Ahead

Although we may have won the substantive battle on the content and foundation of the compact, we did not win the political battle that would have flatly stopped this compact in Montana.  There is always a silver lining

But, no one is disappearing because the issues remain and activity still goes on behind the scenes. The remaining issues now give us an opportunity to continue to finish off the compact in Montana on a number of different fronts, while other actions do the same thing at the D.C. level.

First, there is a strong legal and factual basis for action at both the state and federal levels:

  • At the local and state level, which may end up in a federal arena, there are currently ripe legal arguments against the CSKT Compact that will constrain any implementation on and off the reservation. In broad scope these are described in the MLWA video.  We need to continue our discussion and exchange of ideas. There is also necessary continued education of our children, neighbors, community, and legislators as to the true facts behind this compact. We must make sure that this never happens again in Montana.
  • At the federal level, there are ripe legal actions associated with on-going federal actions; documented factual information must be submitted and presented to the agencies and Congress through the appropriate channels. The presentation of these facts to agencies and decision-makers will inform and support their review and ultimate revision of the Compact.
    • Remember at this time Congress and the federal agencies can do what they want with the compact and no state or tribal approval is required.
    • Remember also that unless we convince the agencies and Congress of the necessary changes through our testimony on whatever legislation comes forward, we do not get a chance to substantively change the compact after it is approved by Congress and signed by the President.

Second, there is the on-going effort to prevent both the state and federal government, along with the Tribes, from implementing any part of the compact within the federal irrigation project.  This includes:

  • ensuring that non-storable (formerly non-quota) water can be delivered in the spring,
  • ensuring that stream flows and reservoir levels be maintained in compliance with the 2010 operations plan
  • no new ‘adaptive management’ plan be implemented in the project until congress ratifies the settlement

There are both legal and non-legal ways to accomplish this goal.

   Will State Continue to Interfere in a Federal Irrigation Project?

A new CITT (Compact Implementation Technical Committee) meeting has been scheduled for January 30, 2018, from 9:30 a.m. to 1:00 p.m. at the MVP conference room in Pablo.  This CITT is authorized by the CSKT Compact, which is now state law, to implement “adaptive management” inside the irrigation project (Compact Appendix 3.5).

The truth is that the compact has been pre-implemented since 2013 and while the FJBC lawsuit was underway in 2015…a detail many have overlooked. The deprivation of non-storable spring runoff, increased instream flows–have been pre-implemented since 2013.

This pre-implementation of the of the Compact has changed irrigation operation provisions of the 2010 operations plan, which was approved by the FJBC, Tribes, and BIA.  This is the only legally-authorized operations plan for the irrigation project.  Nothing in the Compact’s Appendix 3.5-the adaptive management plan for a federal irrigation project–has been approved by the federal government.

Even the Tribes know this, as an affidavit was submitted as part of the Tribes’ documents in the FJBC v. MT case from Pete Plant stating the project was going to be managed according to the 2010 Operating Plan.

We also think that the 2010 FIPP operations plan is “settled” until a compact has been approved by Congress, notwithstanding the existing compact state law. And federal law regarding a federal irrigation project will override the provisions of the CSKT Compact as codified in state law 85.20.19 MCA

The CITT may plan and meet and discuss topics of interest,  but in our view may not implement any aspect of or spend, or direct the spending of, any state or federal money on compact-related activities in the federal irrigation project.  There are both legal and political avenues to ensure this outcome.

We continue to believe that off-reservation water rights associated with this compact that claim to be “co-owned” with the CSKT should not be implemented pursuant to the compact.

To be continued…as the river flows!

 

 

 

 

 

 

 

 

 

 

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