Do You Know Where Your Water Rights Are?

© 2022 Concerned Citizens of Western Montana

Because the Montana Water Court objection process for the Flathead Water Compact is still open, we hope that the questions raised in this article will bring additional awareness to all water users in western Montana, particularly those living within the historic boundaries of the Flathead Reservation

This article raises questions about the prohibition of the MCA Title 85 Montana Water Use Act imposed in the Unitary Management provisions of the Flathead Water Compact.  Our questions pertain to the current Water Court proceedings, and the future status of adjudication and protection all existing water rights within the Flathead Reservation boundaries. 

We were first introduced to the Grand Bargain (now known as the Unitary Management Board or the Flathead Reservation Water Management Board), at a Montana Reserved Water Rights Compact Commission meeting held on August 2, 2012.  At that meeting Chris Tweeten, the chair of the MRWRCC made this comment:

“…. Jay (Weiner) talked about pushback from the tribe at some point about what they’re being asked to give, and I think, that in addition to the point that Jay made, the response is to remind the tribes about the Grand Bargain, and the fact that we agreed to do this extraordinary thing, frankly, with respect to agreeing to subject or to remove non-Indian rights on the reservation from the jurisdiction and control of the state, and place that somewhere else at the tribe’s request….”

While it’s incomprehensible that the Legislature of the State of Montana would agree to this clear violation of the equal protection and due process provisions in the United States and Montana Constitutions, they did in fact agree through their questionable ratification of the compact in 2015.

Montana Code Annotated

Their Grand Bargain was enshrined in Appendix 4 of the Flathead Water Compact, and was renamed the Unitary Administration Management and Ordinance, as is codified in MCA 85-20-1902:

Upon the Effective Date of the Compact, this Ordinance shall govern all water rights, whether derived from tribal, state or federal law, and shall control all aspects of water use, including all permitting of new uses, changes of existing uses, enforcement of water right calls and all aspects of enforcement within the exterior boundaries of the Flathead Indian Reservation. Any provision of Title 85, MCA, that is inconsistent with this Law of Administration is not applicable within the Reservation. MCA 85-20-1902 Part 1, 1-1-101 (3.)

The 28th Recital in the Flathead Compact (MCA 85-20-1901) defined the Effective Date” reference in the UMO to be “the date on which the Compact is finally approved by the Tribes, by the State, and by the United States, and on which the Law of Administration has been enacted and taken effect as the law of the State and the Tribes, whichever date is latest.”

The DNRC compact implementation website page says this about the Flathead Reservation Water Management Board:

The Flathead Reservation Water Management Board is an independent board created by the CSKT- Montana water rights compact (MCA 85-20-1901) and the Unitary Administration and Management Ordinance (MCA 85-20-1902 and CSKT Ordinance No. 111-A) to be the exclusive regulatory body for water rights administration on the Flathead Indian Reservation, including the issuance of new water rights and change applications. The Compact became effective on September 17, 2021 which triggered the process laid out in the compact for appointing members of the board. The Governor of the State of Montana, in consultation with county commissioners of counties overlapping the reservation, appoints two members; the Confederated Salish and Kootenai Tribes Tribal Council appoints two; and the four appointed members select a fifth. The Secretary of the Interior appoints a sixth, non-voting ex officio, member. 

This means that according to state law, the water compact is in effect and the water rights of every Montanan living within the exterior boundaries of the Flathead Reservation are now governed by the Flathead Reservation Water Management Board. 

It also means that mysterious and unknown “inconsistent” portions of the MCA Title 85 no longer apply within the reservation boundaries. 

And one more thing:  the Water Court Review of the Compact comes after the compact’s effective date. 

In what universe does that make sense?  Shouldn’t the Water Court review of the compact have been a pre-requisite  prior to the compact  being implemented, and the damage being done?  

More Questions Than Answers

More than seven years after the ratification of the compact by the Montana legislature and nearly two years since the Daines Omnibus Water Compact bill was passed, those of us impacted by their slimy deal are left with many questions and few, if any, answers. 

What follows are a list of questions many of which should already have been publicly addressed by the state of Montana through its own volition, and out of respect for the 30,000 Montanans to whom they’ve denied due process and equal protection under the law via their Grand Bargain.  The answers to these questions could be helpful in discerning any impacts the UMO has on the current Water Court Proceedings or the future adjudication of basins 76L and 76LJ:

1. Exactly what provisions or sections of MCA Title 85 are considered to be inconsistent with the Law of Administration, and will no longer apply within reservation boundaries?
2. Who decides what is consistent or inconsistent with the Law of Administration?
3.  Does the Compact negate or diminish the Water Court’s jurisdiction within the Flathead Reservation boundaries?  If it has, what is the purpose of the current Water Court proceedings and objection process, considering the fact that the water rights of 30,000 Montanans are no longer under the jurisdiction and protection of the state?  
4. How will the restrictions placed on the Water Court’s review of the compact via Appendix 38 impact the Water Court’s ability to complete a robust and thorough “Judicial Review” of the Flathead Water Compact?
5. What specific compact provisions is the Water Court restricted from reviewing in the Flathead Water Compact?
6. Can the Montana Legislature or U.S. Congress dictate or limit the Judicial Review process of the Water Court through its water compact legislation?  Has the Montana Water Court acquiesced to those restrictions?
7. Did the Montana DNRC carefully protect all of the water use applications submitted after the 1996 Ciotti decision, and will there ever be state approval of those claims?   Where are those applications currently located, and what guarantees do people have that the DNRC has a complete and accurate record of ALL WATER USE APPLICATIONS SUBMITTED OVER THE PAST 26 YEARS?  
8. Why did the Montana Water Court allow the USDOJ out of Denver, attorneys for one, perhaps two of the parties to the compact, to mail out the “Water Court” notifications to the public?  
9. When the  U.S. Department of Justice Water Court Notifications were sent out, why were the water use applicants impacted by the 1996 Ciotti decision excluded from the list?  Did the state of Montana lose them, forget about them, or was the oversight intentional?
10. Why have so many water rights holders throughout western Montana still not received notices from the U.S Department of Justice Montana Water Court?
11. Why does the Order for Commencement posted on the Water Court’s Public Notices and Information Page say Denver (see photo above)?  Isn’t the Montana Water Court located in Bozeman?  Did the US Department of Justice out of Denver, representing two of the parties to the compact, prepare the “Montana Water Court” Order of Commencement too? 
12. If there is that level of coordination between the Montana Water Court and the United States Department of Justice, how can the public have faith that the Water Court’s review of the compact will be unbiased and impartial?
13. Because the compact is in effect, and  the Montana DNRC and Water Court no longer have jurisdiction over the existing water rights located within the boundaries of the Flathead Reservation, how will an adjudication be completed for existing claims within basins 76L and 76LJ that are currently stayed by the Water Court at the Tribe’s request? 
14. Why does the compact make provisions to ensure federal jurisdiction over the expansive time immemorial “tribal reserved rights” in the compact “if it is finally determined in a judgment binding on the State that the State courts lack jurisdiction over, or that the State court proceedings are inadequate to adjudicate some or all of the water rights asserted?”  
15. If it is determined that Montana doesn’t have jurisdiction over the claims in the compact, what will that mean to all areas of western Montana affected by the compact’s time immemorial “Tribal Reserved Water Rights?”  Will they be forced into expensive federal courts to protect their water rights against the overreaching claims of the United States / CSKT?

Through its negligence and / or complicity, Montana may very well have created a jurisdictional black hole with their Grand Bargain and Tribal Reserved Water Rights that will make the hardships created by the 26 year old Ciotti decision look like a Sunday picnic.  

The Water Court’s Review of the Compact

Judicial review is defined as the power of an independent judiciary, or courts of law, to determine whether the acts of other components of the government (such as legislative and executive branches) are in accordance with the constitution. Any action that conflicts with the constitution is declared unconstitutional and therefore nullified or void.

Under Section 85-2-233 of Montana Law, The Water Court may only approve a compact or declare it void.

The notification sent out by the Water Court says this about their review of the compact:

As explained in Article VII.B.2 of the Flathead Compact, the Water Court’s review of the Compact is “limited to the contents of Appendix 38 [of the Compact] and may extend to other sections of the Compact only to the extent that they relate to the determination of water rights and their administration.” (Does this mean that the compact dictates that the Water Court is not allowed to look at Constitutional Issues? What specifically is the Water Court not allowed to review in the Compact?)

The Court’s review of a compact is to allow the Court “to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between the negotiating parties . . . .” Id..

“The purpose of this kind of judicial review is not to ensure that the settlement is fair or reasonable between the negotiating parties, but that it is fair and reasonable to those parties and the public interest who were not represented in the negotiation, but have interests that could be materially injured by operation of the compact.” Id. at *4.

We certainly pray that the Water Court is asking similar questions to our own, as well as looking into the Constitutional issues, and the overreach represented by Unitary Management and Tribal Reserved Water Rights. 

It is quite likely however, that the Water Court will only consider these important issues, if they are appropriately brought up in the objections that are made by water rights holders throughout western Montana that are affected by this compact. 

Please take the time to submit an objection to the Montana Water Court before December 6, 2022.

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