© 2018 Concerned Citizens of Western Montana

Last week, many irrigators around the state were treated to an official-looking document appearing to have something to do with the water court and litigation.  Its contents included an aggressive threat specific to irrigators: Support and acquiesce to the CSKT water compact or face the risk of losing your irrigation water for decades while you spend large amounts of money defending your inferior claims in the water court against CSKT objections to encroachments on their pervasive prima facie time immemorial claims.

Gee, wasn’t it the nice, friendly and wonderful “Montana’s Water Compact” just a couple of short years ago?

Their mailer reads as follows:

Montana Water Rights Litigation Notice
Impacted Owner
Basin Number

Impacted property owners and water right holders in 54 of Montana ‘ s 90 water basins are likely to be the subject of litigation before the Montana Water Court without implementation of the Confederated Salish & Kootenai Tribe (“CSKT”) Water Compact (“The Compact “).

The Compact is a negotiated agreement made between the State of Montana, the federal government, and the CSKT, with input from agricultural groups and water users to prevent existing water rights from being challenged in Court. The Compact was passed by the Montana State Legislature and signed by the Governor in 2015, and is pending final approval in the United States Congress.

Consequently, under Montana law, the CSKT was required to file their tribal claims in the Montana Water Court. This legal action will require existing water right holders to prove their rights predate those of the CSKT, which have a priority date of 1855, or time immemorial. Without the Compact, all tribal claims are presumed valid, predate most if not all other water use claims, and can be enforced against all other water users until adjudication is completed.

Public records indicate you may have a financial, property or other interest that could be negatively impacted without final approval of the Compact. WITHOUT THE COMPACT YOU MAY LOSE THE ABILITY TO IRRIGATE FOR DECADES WHILE THE WATER COURT ADJUDICATES CSKT’S CLAIMS.

Farmers and Ranchers for Montana ( ” FARM” ) is a coalition representing agriculture, irrigators , business and other stakeholders across Montana dedicated to implementing the Compact in order to prevent the litigation of existing water rights. The Compact will preserve existing water rights, reduce uncertainty, protect property values, and minimize decades of costly litigation .

PLEASE RESPOND IMMEDIATELY by visiting www.MontanaWaterCompact.com to join our coalition, take action, and ensure final approval of the Compact.

A name redacted copy of this mailer can be found at this link.

NOTE:  Be sure to look closely at the postage stamp on page 2.  Is that a tribal insignia?  Is FARM using it to show solidarity with the CSKT, or is it possible they erred by using the tribe’s money or postage meter to fund the mailing? Regardless, the Tribes created FARM through Mercury Consulting.

Some History

Before we discuss the notice, let’s remind people that FARM is anything but a  “grassroots” organization.  Created with dark tribal money, via Denny’s Rehberg’s Mercury LLC, and with the help of Montana’s good old boys swamp, they were able to use CSKT funds to advance a huge advertising campaign throughout the state of Montana to help get the CSKT water compact approved in 2015.

See our article from 2016, that researched its genesis using public records.

FARM:  Grassroots, Astroturf or Something Else?

Even with all of that public relations glitz and glamor, the compact was so overreaching and controversial, a small group of republican legislators found it necessary to conspire with democrats to change house rules in order to garner a flawed and questionable “ratification” of the compact in the Montana legislature.

A few years down the road, and with some hindsight, it is clear that the goal was to get the compact ratified by all three governments before the public ever knew what hit them:

Goal Status
Get the CSKT compact ratified in the Montana Legislature without ever letting legislators know how much water was being ceded or its impacts on the economy of western Montana.  Give the parties immunity from damages resulting from the taking that they all presided over.  Have the Montana Supreme Court bless their failure to secure the constitutionally mandated 2/3 vote in the Montana House and Senate Accomplished
Implement portions of the Compact prior to federal ratification to ensure that its impacts will take effect even if it never is ratified by Congress Partially Complete
Hire lobbying / public relations firm to “sell the compact” Accomplished
File 10,000 claims, over 2/3 of the state of Montana, most with time immemorial priority dates Accomplished
Ensure there is no scrutiny of the tribe’s overreaching and ridiculous compact claims as well as the 10,000 claims filed over 2/3 of the state of Montana. The tribe’s currently have a stay until January of 2020 Accomplished
To give the Montana water court the appearance that the water compact has momentum in congress Accomplished
Pitching tipis if necessary in the halls of Congress in an all or nothing effort to lobby for their water compact Work in progress
Get a Montana Senator to introduce a bill written by tribal attorneys, with a $2.3 billion price tag and ownership of the largest irrigation project in the state of Montana Accomplished
Secure Federal ratification of the CSKT compact faster than any other compact ever Stalled

This FARM Notice adds one more item to what has now become a very offensive list:

To mislead, frighten and coerce Montanans into supporting the compact to “protect their own water rights” from an overly aggressive tribe.

Compact ratification or not, it is unlikely that the Montana Water Court will approve any additional stays on claims examination in Hydrologic Basins 76L and 76LJ. 

This latest stunt by FARM indicates an increasing sense of urgency and desperation of the tribal government to secure a quick ratification of their beastly water compact.

Where is Montana, and Why Aren’t they Crying Foul?

A reasonable person might ask if this FARM “Litigation Notice” is a blatant attempt to intimidate citizens, influence Congress, and to ensure a biased water compact outcome in the Montana Water Court? If successful, these efforts essentially guarantee that those of us living in western Montana can never have a fair hearing in the Montana Water Court, because our claims will be buried under the weight of the federalization of our water. If successful, water users in Eastern Montana will have a permanent cloud over their water rights and face decades of litigation even if the compact is passed.

So why isn’t Montana calling foul on this FARM memo?  Why is our illustrious and knowledgeable Attorney General missing in action?  Why do compact proponents only have threats to advance their cause?

And importantly, no one who supports the compact can tell you why they do. Just ask them.

To the Montana elites supporting the compact, the ends have always justified the means.  Once Montana made its decision to abandon its citizens and allow the federalization of its western water, it became necessary to develop respectable sounding “legal legs” and talking points for the public.  Part of that strategy includes a mutual defense clause written into the compact.  Keeping quiet in the face of bullying and coercion tactics toward your citizens could reasonably be interpreted as “mutual defense” while letting someone else do the dirty work.

The threat of 10,000 claims has always been part of the strategy.  Montana clearly has decided to sit back and let its citizens continue to be divided and threatened by attorneys for one small tribe located in western Montana.

It’s Now Up to the People to Stop this Nonsense

Because all three branches of Montana government, state agencies and its good old boys swamp continue to fail the people of Montana, the burden now falls on We the People to stop this madness.

We urge you to send a copy of the FARM memo along with your own comments to the Montana Water Court to express your displeasure with the tactics currently being used by FARM at the apparent urging of the CSKT.  In light of the generous extension of time given by the Water Court to the Tribes, and in light of the professed “benefits” the CSKT compact is supposed to bring to Montana, why are they behaving this way?

If there is currently a stay on the examination of claims in the water court, surely it would be offensive to the Court to note the level of coercion that is still taking place during this interim period?

It’s way past time to disarm the state’s ability to divide its citizens against one another through its actions and its consistent failure to represent its citizens and protect their property rights.

If the property rights of all Montanans are not protected, no one’s rights are protected.  This means property rights that exist on both sides of the divide.