Plausible Deniability

© 2022 Concerned Citizens of Western Montana

While the Water Court proceedings for the Flathead Water Compact may be somewhat overwhelming to folks just learning about the compact’s details, we have to ask if this process might also be a blessing in disguise. 

After all, the compact is now on the radar of more Montanans than ever before, and people are beginning to question its flawed assumptions, legal and constitutional violations, and the process that was used by the state to achieve its ratification.

Water users throughout western Montana are earnestly trying to comply with the Water Court’s request that they consider the compact’s impact on their own water and property rights.  And from the looks of the objections submitted thus far, people are not happy.

In a typical adjudication process, a water rights holder is asked to

1. Review the abstract of your own water right claim or claims.
2. Review the abstracts of all other water rights that affect your water right.
3. Decide if these abstracts correctly identify pre-July 1973 water use. 
4. Decide if you want to file objections.   
5. File your objections with the Water Court on or before the filing deadline.

In a standard adjudication process, Montana water rights holders also know and understand that once their water rights are “adjudicated” by the Water Court, the State will protect, administer and enforce them if it becomes necessary at some point in the future.

This special proceeding is not an adjudication.  It is a judicial review of the Flathead Water Compact by the Montana Water Court.

To determine whether you should object to the preliminary decree, water users must wade through several hundred pages of complicated legal documents including the compact, water rights abstracts, the Unitary Management Ordinance, and numerous other appendices.   

All of this is necessary to determine whether their own water rights, yet to be adjudicated, could be meaningless under the weight of the massive volumes  and layers of “time immemorial” instream water rights that Montana agreed to in the compact.  By their volumes and priority dates alone, the tribal claims in the compact will effectively preclude and diminish all other uses of water.    

Also, because the compact is in effect, and is already being implemented, water users living within reservation boundaries must also consider the likelihood that their pre-1973 water rights and post 1973 water use permits are no longer state based water rights that are protected by the State.  So if they are no longer state based water rights, what exactly are they, and who gets to decide what happens to them?

To the best of our knowledge, no guidance has been provided by the State as to what provisions of MCA no longer apply on the reservation.  Is this because the State has effectively removed itself from the water equation within reservation boundaries?

If Montana indeed ceded all of the water flowing through, over and under the reservation to the United States / CSKT in the compact, then it essentially relegates non-Indians to merely “users” of the “tribal water right,” subjecting them to arbitrary mandates, including the Tribal Water Quality Ordinance. See Appendix 4, the Unitary Management Ordinance.  

In order to object to the Water Court, water users must also look into the future to determine the outlook for the certainty and predictability will be for their water uses.  Frankly we’re not sure what this new tribally controlled water management board will do, or if there will be any new uses of water allowed.   

One only needs to open their eyes to see the extent of overreach built into the compact, its abstracts, and appendices.

The Flathead Lake water abstract alone is a massive overreach that creates great uncertainty. (Click on photo for details)

Here are a few other considerations water users and property owners to think about as they contemplate their objections:

• With the Compact, will undeveloped land, remain undeveloped?
• When you sell your property within reservation boundaries, will your water rights be transferred to the new owner? If not, what impact will it have on your property values?  
• When you sell your property, is there any possibility that a new owner may have to apply for the use of the tribal water right, and is it possible that the application could be denied?
• Will existing exempt wells within reservation boundaries be ratcheted down to compact reduced volumes of water when a property changes ownership?
• How will existing water rights be adjudicated in Basins 76L and 76LJ if the Montana Water Use Act no longer applies within the boundaries of the reservation?
• If  the Tribal Water Quality Ordinance applies, how will it affect irrigators, and everyone else? 
• Because basin 76LJ includes areas both within and outside of the reservation’s boundaries, is it possible Unitary Management could affect off reservation water rights as well?
• How is it possible that non-Indians living within reservation boundaries are subject to any Tribal Ordinance at all?  What happened to the United States and Montana Constitutions?

Who’s Responsible for this Mess?

While the three government amigos all agreed to the terms of the compact, have ratified and are now implementing it, Montana is ultimately the party responsible for the Compact.  Montana must carry the burden of legal responsibility because it is the State’s compacting process that created the nightmare that is the Flathead Water Compact. 

This happened under Montana’s purview, under the auspices of  the Montana Water Use Act which allowed for the development of a compact in a McCarran Amendment Proceeding which gave the State jurisdiction to deal with federal reserved water rights.  The agreement Montana allowed to be crafted veers far from the legal framework of a federal reserved water rights settlement.

Additionally when it became apparent that the United States / CSKT demands with respect to the compact were out of control, Montana had the power to stop the negotiations in their tracks and proceed with litigation, or other options. 

Instead, the Compact Commission chose to make the tribes’ 2001 proposal a reality that became the Flathead Water Compact. 

See:  Why Didn’t Montana Call Off Negotiations?

Plausible Deniability

Once Montana chose to move forward with the Tribe’s proposal, the Montana Reserved Water Rights Compact Commission knew that it couldn’t pass in the Montana legislature without being finessed.  The details of the agreement were buried within a 1,500 page document that was difficult to read or understand.  This successfully kept the public and legislators in the dark about the compact details that the commission agreed to.   They also developed legal rationalizations and other information and data that downplayed the compact details while at the same time providing cover for compact advocates and legislators.   

The Governor, Attorney General, a handful of legislators, and a host of unelected bureaucrats and attorneys helped push the compact over the legislative finish line.   

Failure to Quantify the Tribes Water Right:  As of the writing of this article, Montana still has not provided a quantification of the tribe’s water rights in the compact.  When the Compact Commission was asked for a quantification of the tribe’s water rights, they were referred to the hundreds of water rights abstracts in the appendices to the compact.  In an effort to encourage legislator votes for the compact, Senator Chas Vincent held legislator information sessions that included a packet with this non-quantification, “quantification” of the water rights awarded in the compact.  Legislators essentially voted for a blank check because they still do not know how much water was ceded to the United States / CSKT in the compact.

Governor Bullock Report:   After the Failure of the Compact in the 2013 legislature, Governor Bullock used an amendatory veto to breathe life back into the compact under the guise of reopening “limited negotiations,” and allowing the state to “negotiate” on behalf of Flathead Project Irrigators.  The Governor’s report was used as the impetus for those “renegotiations.”  

A.G. Tim Fox Constitutional Analysis:  Knowing just how controversial the CSKT compact was, state Attorney General Fox, funded a constitutional analysis of the water compact that we call the Schowengert letter.  It was used as legal cover to assuage the consciences of any legislators that might be hesitant to approve the compact.  It goes as far as to say that:  “Property oп the Reservation is subject to special rules derived from the unique federal status of the Tribes. Non-Tribal citizens moving to the Reservation should know that when they live within the boundaries of the Reservation, they might bе subject to different rules that mау not otherwise аррlу if they lived off the Reservation, especially оп issues surrоuпdiпg water use.”

Helen Thigpen WPIC Analysis: Attorney Helen Thigpen provided to the Water Policy Interim Committee a legal analysis pertaining to questions asked about the compact by two legislators concerned about the compact.  Thigpen consulted with compact proponents and the compact commission, resulting in a document that essentially tried to paint a narrative that the compact was a “reasonable” settlement based upon the likelihood of how a judge might rule in court.

Senator Chas Vincent’s Independent Compact “Study”:  In 2014, Vincent artfully maneuvered an “unbiased study” of the compact through the WPIC committee process in an attempt to address the publics concerns that no economic or environmental studies of the compact had been done.  During negotiations, the compact commission claimed to have a categorical exclusion from the need to complete studies.    Without true and unbiased studies of the compact, legislators had limited information concerning its impacts upon western Montana water users, land patents and property rights.  

Hertha Lund White Paper: Member of the Helena good old boys club, attorney Hertha Lund developed a white paper for the greater good of all Montanans: From Lies to Truth:  Why the CSKT Water Rights Compact is Good for Montana.

Montana Farm Bureau and Stockgrowers Association, and many other organizations ignored their agricultural constituencies and used their powerful voice and lobby to support the compact.  Surely if such organizations supported the compact, it couldn’t cause harm to agriculture interests. 

Farmers and Ranchers for Montana – Tribal funds were used to hire Mercury LLC, a lobbying firm connected to former representative Denny Rehberg, to create a “grassroots” organization in order to lend credibility to the compact.  They mailed out expensive postcards throughout the state in an effort to push was was newly coined to be “Montana’s Water Compact” over the legislative finish line.  If such a powerful grassroots organization of regular everyday Montanans supported the compact, why shouldn’t the legislature ratify it?

Whether or not these people and organizations intended to provide plausible deniability cannot be known with certainty.  However the lawyers among them, particularly those holding statewide elected offices, most likely did.  Others simply used their powerful lobbies and media voices to influence the legislature to ratify a compact they couldn’t have possibly read, or considered its far reaching legal and constitutional implications. 

The good old boys club certainly went to bat for a highly favored by-product of the Montana political machine. 

Montana’s Copper Kings would be proud.

The Compact Speaks for Itself

This fairly comprehensive effort to achieve enough perceived plausible deniability succeeded when in 2015 enough legislators saw fit to ratify the compact with simple majority votes in the House and the Senate.

Unfortunately for those who supported the compact with their vote, their reports, and their successfully planned takeover of the Montana House, their DENIABILITY IS NOT PLAUSIBLE.   

It also is not plausible for the Governor, Attorney General, the Compact Commission and others who worked overtime to ensure the compact was rammed through the system and is now being imposed upon the people, denying many the protection of the state for their water needs.  

The Flathead Water Compact speaks for Itself.  It is a massive OVERREACH that was advanced despite its flawed assumptions, constitutional violations, illegalities, and its complete disregard of history, including Article VI provisions of the Hellgate Treaty.  

When the details of this compact come out, and they will, Montana will necessarily carry the burden of legal responsibility for its decision to move forward with its illegal, unconstitutional and fraudulently derived compact.   

The only question is, where will that buck stop, and who will be caught up in it?

We are unsure at this time if the water court will recognize the blatant overreach and give the compact a thumbs down.  Only time will tell.

We are curious however as to how Montana will unravel itself from the legal situation it has placed itself in, and whether or not anyone that participated in it will be held accountable.

Every legislator that voted for the compact should also be held accountable for violating their oath of office.   

When the compact was being considered on the House floor, legislators were asked for a show of hands as to who had read the compact they were getting ready to vote on.  Only a few legislators raised their hands. 

How is it possible then, that they ratified such a controversial piece of legislation without ever having read it? 

Plausible deniability anyone?

Montanans need to stop promoting the these sorry excuses for legislators from the House to the Senate (Dan Salomon) and vice versa (Ed Buttrey, Llew Jones), or promoted-to Speaker of the House and then Senator (Greg Hertz), or “RINO Majority leaders” (Steve Fitzpatrick), just to name a few.

Any current legislator that voted for the compact in 2015 should be removed from office.

Better yet, perhaps every legislator that voted for the compact, no matter where they live in Montana, should be placed under the Flathead Water Management board for their water needs.

Here are highlighted vote tabulations showing all of the legislators who violated their oaths of office:

 

Montana 2015 House of Representatives

Montana 2015 Senate