Is There a Chink in the UMB’s Impenetrable “Exclusivity?”

© 2022 Concerned Citizens of Western Montana

The Flathead Compact is egregious and illegal on so many levels, that it is difficult to understand how it has gotten this far into the process.  So far in fact, that it could soon become a water court rubber stamped reality. 

We begin this post by giving credit where credit is due.  The Flathead Water Compact is standing today because of the outright political corruption at the state level, as well as Montana’s Congressional delegation which includes our now Governor Gianforte. 

Montana has a New and Improved DNRC

Montana’s DNRC has also played an instrumental role in the advancement of the compact and its implementation, although at times, it’s been difficult to understand why. 

Perhaps the environmental philosophies of the United States Department of Interior through its infiltration of DNRC leadership via former Director John Tubbs, and current Director Amanda Kaster have worked their way down through the ranks.  Or the communist leanings of our country’s universities have successfully indoctrinated the DNRC workforce from the ground up. 

Instead of working to protect the natural resources of the state for the benefit of the people, for the past several years the DNRC has actively advocated for the federalization of Montana’s water through the CSKT Compact.  In large part, their bias has also served to politicize Montana’s water.

It also appears that now Governor Greg brought his Washington DC methodologies, money and federal wherewithal back to Montana.

The DNRC website was recently revamped to introduce a Resource Development Bureau (RDB), with the mission to provide technical and financial assistance to local governments, state agencies, nonprofits and private citizens for projects that benefit, protect, restore, conserve or sustainably develop Montana’s natural resources.

Their Conservation Districts Bureau (CDB) assists conservation districts in meeting their mission and 310 legal requirements through legal and operational support, financial assistance, and professional development. The CDB is the coordinating state agency for conservation districts in Montana and helps sponsor statewide educational events and programs. 

This division might also provide some kind of oversight to the conservation lands that Bonneville Power continues to purchase for Montana’s FWP and the CSKT through mitigation scams. Montana it seems, is as hungry to accumulate land acquisitions via conservation easements, taking them out of the private domain, as are the CSKT and Feds.  We have even seen instances where the state works with the tribe and the feds concerning Bonneville Power land acquisitions..

The DNRC even has an Office of Administrative Hearings and are currently undertaking a Comprehensive Water Review to evaluate and reform the administration of water in Montana to meet future water needs and protect “some” existing users.

Is this how Montana was rewarded for their role in the ratification and implementation of the Flathead Water Compact?

Where will all of this funding come from?  Federal Government, or Non-Governmental Organizations (NGO’s) such as environmental groups?

Have DNRC employees in essence become an arm of the Federal Government doling out federal grants in exchange for sovereignty?

The DNRC website now reads like a federal and environmental takeover of the executive branch of Montana’s government, offering “free grant money” for any entity, particularly local governments, that are willing to advance the Federal Government’s agenda in Montana.

Between newly created bureaus, and office of administrative hearings, and using the power of the purse to accomplish their goals, one cant help but think of how communist this all sounds. Montana state government has seemingly advanced to the big time.

It is quite probable that Montana’s government and its bountiful agencies are incapable of discerning the irony of DNRC’s stated mission to develop and protect the state’s natural resources, when in fact they have worked overtime and behind the scenes to cede most of the states water resources to the United States in the CSKT Compact.

Unitary Management of the Tribal Water Right

Despite the fact that we still do not how much of Montana’s Water Resources were ceded to the United States and the CSKT Compact, it is quite clear that the state must have ceded all of the water flowing through, over and under the reservation to the tribes.  There would be no need for Unitary Management otherwise.

The Unitary Management provisions in the compact are there purely to provide for the protection and administration of the tribal water right, while at the same time defining the restrictions that will be imposed on non-Indian uses of water.  Through their ratification of the Flathead Compact, Montana effectively placed non-Indians under tribal jurisdiction and control for their water needs..

We cannot stress enough that this UMB was conceived by the CSKT in its 2001 proposal to the state, and it could not have become a reality without the consent of the Montana Reserved Water Rights Commission, and ultimately, the Montana Legislature. 

The still living and breathing Compact Commission refers to it as the GRAND BARGAIN: 

“…. 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….”

We respectfully request that you never lose sight of the fact that our constitutional protections of due process and equal protection under the law with respect to our water needs were bargaining chips that Montana gave away at the negotiation table.

Montana Law now reflects the UMB in its entirety, enshrined as MCA 85-2-1902.     

Exclusivity of the Unitary Management Board

Here are two problematic references in the Unitary Management Ordinance law that we’d like to focus on:

85-20-1901. CSKT – Montana Compact – Article IV Implementation of Compact

1. Administration: Establishment of Flathead Reservation Water Management Board.

1. Establishment of Board. There is hereby established the Flathead Reservation Water Management Board. Upon the Effective Date, the Board shall be the EXCLUSIVE REGULATORY BODY on the Reservation for the issuance of Appropriation Rights and authorizations for Changes in Use of Appropriation Rights and Existing Uses, and for the administration and enforcement of all Appropriation Rights and Existing Uses. The Board shall also have EXCLUSIVE JURISDICTION to resolve any controversy over the meaning and interpretation of the Compact on the Reservation, and any controversy over the right to the use of water as between the Parties or between or among holders of Appropriation Rights and Existing Uses on the Reservation except as explicitly provided otherwise in Article IV.G.5. The jurisdiction of this Board does not extend to any water rights whose place of use is located outside the exterior boundaries of the Reservation.

85-20-1902. Unitary administration and management ordinance.

1-1-101. Authority.

3. 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 PROVISIONS OF TITLE 85, MCA, THAT IS INCONSISTENT WITH THIS LAW OF ADMINISTRATION IS NOT APPLICABLE WITHIN THE RESERVATION.

1-2-107. Powers and Duties of the Board.

1. As set forth in the Compact, the Board shall have EXCLUSIVE JURISDICTION to resolve any controversy as between the Parties or between or among holders of Appropriation Rights and Existing Uses on the Reservation over the meaning and interpretation of the Compact and this Ordinance.

Like all Montana legislation, there are always enough holes in the law for federal, tribal or even state administrative tyranny to fill in the gaps.

In some of our recent articles we have raised serious jurisdictional questions pertaining to non-Indian water rights within the boundaries of the former Flathead Indian Reservation and their implications to the rest of the state.

For example:

• What provisions of Title 85, MCA no longer apply within reservation boundaries?
• Who gets to decide what parts of MCA are “inconsistent” with the Law of Administration?  The Tribe or the tribally controlled Unitary Management Board?

Thanks to Montana’s “leadership” and its legislators, our water rights literally are sitting in a wild west no man’s land, controlled by a tribal corporate government in which we cannot, nor would we ever want to hold membership in.

Because no quantification of the tribe’s water rights has ever been provided, we cannot even be sure if the compact has made us all “users” of the tribal water right, making any adjudication of the water rights we think we might have, questionable.

Exclusivity:  UMB v Montana Water Court

While the Montana Water Court touts it has exclusive jurisdiction to adjudicate all water rights in the state, we cannot be sure that this is still in fact the case in the context of the Unitary Management Ordinance.

Many questions remain unanswered by the State.  Perhaps that is because even the State doesn’t fully understand the monster it created.   

Adding insult on top of this jurisdictional mess is SB72, a new bill TO REVISE THE JUDICIAL DETERMINATION OF WATER RIGHTS has already been introduced in this legislative session by Senator Steve Fitzpatrick. 

It’s goal, we think, is to begin the process of completely revamping the Montana Water Court, starting with an almost immediate political appointment of water court judges. 

In view of the current Flathead Compact Water Court proceeding, and the pending western Montana water rights adjudications anticipated over the next couple of years, the timing of this legislation is questionable, and adds one more layer of complexity that builds upon our unanswered questions. 

Will this new legislation somehow provide cover to the state for placing a large segment of its population under a tribally controlled board for their water needs?

Also, because the current water court Flathead Compact special proceedings will effectively adjudicate the water rights of western Montana without the benefit of a bona fide adjudication of non-Indian water rights, we must ask if any of the changes proposed in this legislation will assist the further advancement of the Flathead Compact, or further diminish the water rights of non-Indians?

Here are just a few highlights from the SB72 legislation which will have an immediate effective date:

• It removes the district courts as an option for judicial review of final decisions on water rights permits and changes, and places the responsibility solely with the Water Court instead.
• The Governor will now be able to appoint candidates for any water judge term or vacancy. It appears that the legislation creates a water court judgeship opening for each of the four Water Court Basin divisions.  The Montana Senate will confirm the appointments, and once a final decree is entered, these Water Court judges will be subject to state wide retention elections. (Keep in mind, these judgeships will be politically appointed until final decrees are entered, effectively keeping CSKT Compact politics in play).
• MCA 85-2-114 Judicial Enforcement provisions of Montana water law no longer apply on the reservation. Note this statute was revised along with several others that no longer apply within the Flathead Reservation boundaries per MCA 85-20-1902.
• Here are a few (there are 16 in total) of the Montana water court judges responsibilities as articulated in the Fitzpatrick legislation. Montana water court judges shall (1) administer the adjudication of existing water rights in the basin, (2) conduct proceedings for petitions for judicial review with the water court, (3) review decisions made by a compact board or other administration entity as provided in Title 85 Chapter 20. (It should be noted that the Unitary Management Board was provided for in Title 85 Chapter 20).

Below are a few more questions to consider as the Fitzpatrick legislation, requested by the Montana DNRC, moves forward in the 2023 Montana Legislature:

Will the passage of this bill mean that the governor will be positioned to make four immediate political appointments, one to each of the four water court divisions? 

Gianforte’s pro-tribal appointments to the Unitary Management Board speak to his priorities and political loyalties.  Will  this predispose him to appoint a pro-tribal  judge for the Clark Fork Basin Water Court Division covering all of western Montana?  

If so, could such a nomination introduce a pro-tribal bias into adjudication proceedings where tribal water rights are now located via the Flathead Compact throughout western Montana?

Will the Flathead Reservation be carved out of the Clark Fork Basin division? Considering the UMB, should it be?

Doesn’t Montana have term limits for its legislature?  Why are the same bad actors, including Steve Fitzpatrick that passed the compact in 2015 still “serving,” and are now in more powerful positions?

How does a state employee, hydrologist Ethan Mace, formally with the DNRC, become embedded as the Engineer for the Flathead Reservation Water Management Board?  Is it to give an impression of state oversight of a tribally controlled board that was designed specifically for the purpose of expanding tribal jurisdiction and removing state jurisdiction over western Montana Water?

If the UMB, also known as the Flathead Reservation Water Management Board has exclusive jurisdiction over all things water related within reservation boundaries, how can the Fitzpatrick bill declare that water court judges shall review decisions made by a compact board or other administration entity as provided in Title 85 Chapter 20?

Will the CSKT “allow” the decisions of their Flathead Reservation Water Management Board to be reviewed by these new Water Court judges?  And if the Water Court judges actually review the board’s decisions, what happens then? Perhaps nothing, because the judicial enforcement provisions of Montana Water Law no longer apply on the reservation.  So who is the State trying to fool, and why?

Based upon the fraudulent activities by the state in order to achieve ratification and implementation of the compact to date, is it possible that this so called “review” of UMB decisions is a smoke and mirrors mirage that can be likened to the phony “compact renegotiations” that took place in 2014?  

After more than a decade of bad behavior by Montana officials and politicians, we pretty much know who the questionable actors are, and immediately become suspicious when legislation that affects western Montana water rights and their adjudication is introduced or sponsored by any of them.

SB 72, TO REVISE THE JUDICIAL DETERMINATION OF WATER RIGHTS, has already been officially introduced by Senator Steve Fitzpatrick out of Great Falls to the upcoming legislature. 

We remember Fitzpatrick as the gatekeeper of the CSKT Compact in the Montana House of Representatives in 2015.  It was his job to ensure that no amendments to the compact proposed in the House were successful. 

Upon receipt of this bill, we immediately are very suspicious of it, not only because of its sponsor, but also because the tribally biased Montana Department of Natural Resources and Conservation is the requester of the legislation.

Oh there is one more thing:

The roster of the  new Water Policy Interim Committee in a “republican controlled legislature” includes democrat and CSKT tribal member and attorney Shane Morigeau, and republican Walt Sales of FARM fame.  This virtually ensures that any pro-tribal legislation that goes through the water policy interim committee could easily work its way through the legislative process.

What the heck is republican leadership thinking, or are they just not thinking at all?