@2018 Montana Land and Water Alliance

Conveniently following the FARM threat letter discussed in our last post, editorials appear across the state from state representatives and senators extolling the same misinformation contained in the FARM piece. The coordinated strategic talking points say:

  • If Congress does not approve the CSKT Compact, then Montanans’ water rights would be tied up for decades as the CSKT pursue their off-reservation federal reserved rights
  • That the CSKT have “prima facie” off reservation water rights across 2/3 of Montana, that are valid until proven otherwise
  • That everyone will have to hire their own lawyer to protect their water rights, but their defense would be unsuccessful against the Tribes’ time immemorial priority date.

Each of these statements are untrue, but those are the talking points the compact proponents are running with. The latest installment of the rolling talking points is Representative Zach Brown’s recent Op-Ed in the Billings Gazette, “Congress Should Pass the CSKT Compact“.

The latest talking point, echoed by Zach Brown, is that there is a 2019 deadline, after which the compact is null and void.  This is untrue. The Compact states that if Congress has not approved or funded the compact, or the state has not funded it, any party (Tribes, US, State) may withdraw from the compact.  The likelihood of Montana withdrawing from the CSKT Compact as long as AG Fox and Governor Bullock are in office is zero. The battle is now at the federal level in any case.

Here is our lengthy response, too long even for an op-ed:

CSKT Compact Proponents Still Stunningly Uninformed

Catherine Vandemoer, Ph.D., Chair Montana Land and Water Alliance

In a recent Op-Ed for the Billings Gazette, Representative Zach Brown tries his best to inform Montana citizens why Congress should pass the CSKT Compact.  But in doing so, he severely misstates the definition of a “federal reserved water right” and mixes up state and federal law concepts. He concludes, as do other compact proponents, with the usual threat that litigation against Montana citizens is inevitable and unwinnable if they don’t support or Congress doesn’t pass the CSKT Compact. Does the representative know what he is advocating for?

Representative Brown asserts that if the Compact is not passed by Congress, extensive litigation and uncertainty will ensue because “the CSKT will move forward with legal claims to define their federally reserved water rights in the MT Water Court….numbering in the thousands and covering approximately two-thirds of Montana…”  Does representative Brown know that “federal(ly) reserved water rights” are defined by the Winters Doctrine and subsequent case law are restricted to the federal Indian reservation land, not “approximately two-thirds of Montana”?  The only “federal reserved rights” of the CSKT are on the Flathead Reservation, not off-reservation and across Montana. Mr. Brown should study all the other Tribal compacts in Montana, the Winters Doctrine, and the Treaty of Hellgate before asserting that the CSKT off-reservation claims are “federal reserved water rights”.

Next, Representative Brown argues that the CSKT off reservation claims “are considered valid unless proven otherwise”.  Here he incorrectly and improperly mixes state and federal law.  The concept of “valid until proven otherwise” is a state law concept known as the “prima facie” argument.  In contrast, a federal reserved water right is by federal law restricted to the reservation and must be quantified and proven in a court of law or determined through negotiation before it is considered “valid”. Only state law-based water rights carry the privilege of “prima facie”—valid until proven otherwise.  There is literally no basis in law or the Treaty of Hellgate for the CSKT off reservation water claims and no application of the state law-based “prima facie” status to them.  Representative Brown should be challenged to prove his assertions.

To add insult to injury, Representative Brown then states that failure to act on the CSKT Compact will “force existing water users to defend their rights in court”, and that the “1855 and time immemorial priority dates” will  make it “nearly impossible for an existing water right holder to successfully defend their right”.  This is the usual threat regularly employed by compact proponents to scare their constituents with misinformation as to the true legal scope of the Tribes’ water claims and their ‘prima facie’ status in order to coerce them into supporting the Compact.

What compact proponents like Representative Brown do not want you to know about the CSKT Compact is that if passed, it won’t stop litigation or provide certainty for Montana citizens. None of the Tribes’ or United States’ claims are dismissed with prejudice—meaning finally dismissed. The CSKT Compact if passed by Congress is a lawyer’s dream—endless litigation!

The CSKT tribal government, after having promised not to file its 10,000 off reservation claims if the legislature passed the CSKT Compact, filed them anyway, and there they sit, hanging as a permanent cloud over the entire state of Montana. Who allowed the CSKT tribal government to file those claims in the Water Court despite the legislature’s passage of the Compact, and who allowed them to dishonor their pledge to the people of Montana? Is our state government representing all Montanans, or just a few? Montana failed all its citizens.

Representative Zach Brown sits on the Water Policy Interim Committee (WPIC) and reported that the WPIC recently submitted a letter to Secretary Zinke urging passage of the CSKT Compact.  Their letter was based in part on the arguments above, which when stripped to their core, just consist of advocacy  for the CSKT at the real expense of Montana citizens. Brown should focus on answering the question that the state has refused to answer since 2012: how much water was awarded to the CSKT under the Compact?

When politicians use the weight of their legislative office and membership on key committees to misinform and scare their constituents, and to advocate only for a certain group of citizens over others, they violate the civil rights of all Montanans to fair representation by their elected officials and due process under law.