Have the Tribe’s 10,000 Claims Come Home to Roost?

© 2023 Concerned Citizens of Western Montana

NOTE:  This article pertains to the June 2015 Water Court Adjudication Stay that was placed on Hydrologic Basins 76L and 76LJ, and the 10,000 United States / CSKT water rights claims covering 2/3 of the state of Montana that were filed with the DNRC, also in June of 2015.

It does not impact the Flathead Compact Decree proceeding that is currently taking place in the Montana Water Court.  Any objections to the Flathead Compact Decree are still due to the Water Court no later than February 9, 2023. 

We ask that anyone living in the green areas of the 10,000 claims map below to pay close attention to the fraud that is playing out behind the scenes concerning the 10,000 claims.  We apologize in advance if we are repeating information that you are already aware of, but in the interest of the general public, we feel it is important to give people the context they need to understand the precarious position that Montana is in right now.

Why is there a Water Court Stay on Basins 76L and 76LJ?

We recently reported that the Water Court stay on Basin 76L (Flathead River Below Flathead Lake) and Basin 76J (Flathead River to,  and including Flathead Lake) was expected to expire on January 10, 2023.

That stay, which technically began in 1996 with the Ciotti decision, was originally put in place to prevent the adjudication of claims in those basins until the tribes water rights were quantified. Notwithstanding the fact that Montana has still not provided the public with a quantification of the tribes rights included in the compact, that stay should have been released when the Flathead Water Compact was ratified by the Montana legislature in 2015.

For the past 26 years, the people living within those basins have been unable to have their water use applications approved by the state of Montana.  As a consequence, we have been told they were sitting unprocessed, and in a basket located at some DNRC office.  Montanans have no visibility of them, and even the Water Court did not know of their existence when they sent out notifications for the Flathead Compact Decree.  The Compact’s Unitary Management provisions and preclusion of state law (the Montana Water Use Act) within the reservation boundaries, makes it highly likely that those applications will never be approved by the State.

We now know that in December, the United States / CSKT filed a request with the Water Court asking that the stay be extended again, this time to January 10, 2024.  The water court has already issued a one month stay, and will soon schedule a hearing to make a determination concerning the request for a one year extension.

The Flathead Water Compact

Montanans need to understand that the compact that was ratified by the legislature is not a federal reserved water rights settlement as was intended by the Montana legislature when they created the Compact Commission in 1979. 

Frankly, the compact documents speak for themselves in that the claims within it are a complete rejection of the legal framework of the Winters Doctrine and federal reserved water rights.

Instead, the water claims found within the compact appendices are almost exclusively “tribal reserved water rights.”  There are no claims in the compact for domestic, municipal, commercial or industrial uses of water, current or future, for the tribe, the allottees, or for the rest of the tribal membership.  The bulk of claims in the compact are what they call “tribal reserved rights” for fisheries, and were used to open the door to tribal ownership of all the water in Flathead Lake, most if not all of the water flowing through, over and under the Flathead Reservation, and vast amounts of off reservation water throughout western Montana.

The irrigation uses of water in the compact are only there to designate that a small amount of the CSKT tribal governments’ “COMPACT AWARDED” water be delivered Flathead Project irrigators, subjecting them to a 20-74% reduction of deliveries of water depending upon location and duties of water.  Instead of landowners with property rights on a federal irrigation project, they will become “USERS OF THE TRIBAL WATER RIGHT.”

As of the writing of this article, Montana still has not provided the public with a quantification of the tribal water right awarded to the US / CSKT in the compact.  We have argued that it is highly likely that that is because the compact awards all of the water flowing through, over and under the reservation to the tribe.  If true, and we believe it is, the compact makes all people living within reservation boundaries “USERS OF THE TRIBAL WATER RIGHT,” and as such, the compact removes them from the protection and jurisdiction of the state and state courts for their water needs.  

All of this is a long round about way of saying that the Flathead Compact in and of itself is a massive overreach that serves to undermine the land patents and property rights of everyone living in western Montana.

Because this compact falls outside of legal and constitutional constraints, it should be soundly rejected by all Montanans. 

A Brief History of the US / CSKT 10,000 Claims

For as bad as the compact is, Montanans really need to have a serious talk about the 10,000 claims that were filed by the United States and CSKT in June of 2015, shortly after the Flathead Compact was ratified.  The areas of Montana that are impacted by these claims are designated in green on the map above.

Throughout the Flathead Compact negotiation process, the 10,000 claims were wielded by all three parties as a threat in order to achieve legislative ratification of the compact.  Their strategy succeeded.

However shortly after the compact was ratified in 2015, the United States and CSKT filed approximately 10,126 claims covering 2/3 of the state of Montana, in order to “protect their interests,” should the compact not make its way all the way through the process.  A process that includes the current Water Court proceedings.

We would like to make note here, that if the parties were acting in good faith, the US / CSKT would have filed a replication of the Flathead Compact claims with the state.  But that would not have been a big enough, or coercive enough weapon to beat the state and its citizens over the head with to ensure that the water compact made it over the finish line. 

The 10,126 claims were filed instead.  The coercive effect of these claims cannot be overstated.  In our opinion, it could be likened to blackmail.

The western Montana claims within them, are far more expansive than the compact that already was an overreach, and the eastern Montana claims are significant as well in that they cover basins that the tribe has no valid claim to, and that have already been or are close to being adjudicated.  

For example in the 10,000 claims:

• The tribes claimed 16 time immemorial water rights to all of the deep aquifer water beneath the Flathead Reservation, precluding the use of more than 35 million acre feet of water.  Note, this is above and beyond the estimated 58 million acre feet of water precluded from use in the Flathead Compact.
• The United States and CSKT each claimed approximately 3 acre feet of water per irrigated acre, compared to the 1 acre foot of water they are allowing irrigators to use in the Compact.  How is it that the tribe’s request 3 acre feet per acre for themselves but are only willing to give irrigators 1/3 of that amount?
• The United States and CSKT each claimed time immemorial instream flow rights that will preclude the use of 50 million acre feet of water east of the Continental Divide, and more than 40 million acre feet of water west of the Divide.

When the U.S. / CSKT submitted their 10,000 claims in June of 2015, Montana should have entered them into the state water rights database so every Montanan could see them up front and center, overshadowing their own important and valuable, but severely diminished water rights.  The public needs to see first hand the overreach and fraud that is being played out.

A legislator at the time wanted to take action to get this information out to the public, however we were told by the legislator that Steve Daines had squelched it.

Because these claims have no foundation in the law, the intent of the 10,000 claims was purely coercive.  If you’ve paid attention over the years, you will recall the threat of 10,000 claims before the compact was ratified. The federal and tribal parties to the compact bullied their way into the compact ratification with their threats of 10,000 claims and decades of litigation.

We have long held that the 10,000 claims, as well as the compact claims were created out of thin air and have no foundation in the law.  The 10,000 claims were intended to have a coercive effect on the whole process, from the legislature and all the way through to the Montana Water Court. 

We are now seeing that exact scenario play out behind the scenes of the Basins 76L and 76LJ extension.    However we were shocked to see which of the three parties is using the 10,000 claims as a weapon against the Water Court.

The 10,000 Claims and the Water Court

Upon reading the documents submitted to the Water Court in December requesting the extension, we were taken aback to see that in their brief to the Water Court in support of the extension, the state of Montana is using the 10,000 claims as their reasoning for the extension.

The Montana Department of Justice filed a brief with the water court in support of the extension that begins as follows:

On December 13, 2022, the Confederated Salish and Kootenai Tribes (“CKST” or “Tribes”) and the United States Department of Justice (“United States”) filed a Joint Petition for Extension of Stay of Adjudication of All Claims in Basins 76L and 76LJ (“Petition”). The Petition seeks to extend the existing stay deadline until January 10, 2024, to allow the CSKT Compact to move through the Water Court proceedings in WC-0001-C-2021. See Mont. Code Ann. § 85-20-1901. The State of Montana, by and through the Office of the Attorney General, Special Assistant Attorney General (“Montana”) supports the Petition and incorporates the arguments presented. Additionally, Montana presents its own perspective of the “hardship or inequity” that would be incurred if the stay deadline is not extended.

And then, they say this out of their “concern” for the US, CSKT, and Montana should the 10,000 claims go into adjudication:

If the extension of the stay is not granted and these basins are adjudicated before the Court issues an order approving the CSKT-Montana Compact, the parties will incur significant hardship. Without the Compact, 10,109 claims will need to be adjudicated, impacting 51 of Montana’s adjudication basins, many of which already have preliminary or final decrees in place.1 (Mont. Dep’t of Nat. Resources, Update 2019 – CSKT Compact vs. Adjudication of CSKT Claims (2019); see also APS Decl., ¶ 8.)

 The parties will suffer significant hardship if the stay is not extended. If the Water Court declines to continue the stay, there will be public notice of the entry of these claims in one or more preliminary decrees and the opportunity to file objections whenever a preliminary decree including any of these claims is issued by the Court. See Mont. Code Ann. §§ 85-2-232, -233; see also APS Decl., ¶ 7. Should the stay be lifted prior to the Compact’s final decree by the Water Court, the implications stretch far beyond the boundaries of Basins 76L and LJ, because the adjudication of the more than 10,000 claims filed in 51 adjudication basins on behalf of the tribes would also have to proceed. (APS Decl., ¶ 8.)  

But wait there is more: 

If adjudicated by this Court, the Tribal claims would presumably be considered prima facia proof of their content and would therefore be decreed “as claimed” in a similar fashion to how this Court recently issued the Turtle Mountain Band of Chippewa claims, which were filed in trust by the United States Department of Justice. Id., ¶ 11. Such a large-scale, unexamined decree process across 51 of Montana’s 85 basins would present a serious risk to current senior water users who have invested heavily in defending their water claims, and many of which have been decreed previously by this Court. Ibid.

After reading this, could one reasonably conclude that these statements, made to the Water Court by the state of Montana no less, are meant to ensure water court approval of the compact in order to avoid the devastation of the impact of the 10,000 claims? 

Isn’t this the very definition of coercion?

What’s Really Going On Here?

If in fact the state was really worried that the 51 basins affected by the 10,000 claims were in real danger of such harm, perhaps Montana should have taken steps to object to them.

It is far more likely that they needed to keep these claims alive and well so their coercive threats would continue to have teeth. Or perhaps the parties to the compact don’t want the extent of their fraudulent 10,000 claims, to be made public.

Keep in mind, the 10,000 claims were filed six and a half years ago.  During that time Montana has moved a significant number of water rights holders through the adjudication process without providing them with the knowledge that these water rights claims even exist and that they could affect their water rights.  These affected water rights holders have never been given the opportunity to see, or to object to these claims.

Adding further to the deceit is the fact that MCA 85-20-1901 Article VII C. provides that if the compact is fully ratified, when the 10,000 claims are dismissed, it will be done without prejudice. 

(Click to open the MCA link. Press control F and when the box pops up, type in WITHOUT PREJUDICE).

Apparently the compact was never meant to bring FINALITY to the people of Montana. This is yet one more example of the fraud perpetrated upon the Montana legislature and the people of Montana.

There is nothing good faith about the Flathead Water Compact, the “negotiations” that gave birth to it, or the fraudulent means used to ratify it in the Montana legislature, and the influence these 10,000 claims may have upon the water court’s decision on the Compact.

In the legal world, a court case that is dismissed with prejudice means that it is dismissed permanently. A case dismissed with prejudice is over and done with, once and for all, and can’t be brought back to court.  A case dismissed without prejudice means the opposite. It’s not dismissed forever. The person whose case it is can try again.

For this reason alone, Montana should have addressed the situation immediately after the 10,000 claims were filed.

Readers living within the green areas designated on the map above, should be aware that if the Water Court voids the water compact, the 10,000 claims covering 2/3 of the state will become part of the adjudication process for your water rights when that adjudication process begins for your basin, unless Montana gets off its butt and does something about them.

This draws attention to the coercive nature of the 10,000 claims as a weapon that was intended to strong-arm Montana, its legislature, and even the Water Court into ratifying a compact that in and of itself is a massive overreach.  The 10,000 claims carry the threat of overwhelming the adjudication process and introducing chaos to Montana through the adjudication proceedings. 

Like Idaho, Montana could have dealt with these claims long ago, but failed to do so.  The responsibility for this mess falls directly with State leadership.

This is a crisis created by the coercive tactics used by the United States and CSKT in order to induce state ratification of the compact, and Montana’s (willful or incompetent) failure to act once the the claims were filed.

It’s quite possible that these stays have been necessary to keep the coercive threat of litigation alive to ensure that all parties, including the Montana Water Court, push the Flathead Water Compact over the finish line.

Agreements entered into under coercion are not binding.  The use of coercive tactics by the United States and CSKT demonstrates that this compact was not achieved through good faith negotiations, but rather through the threat of litigation, and filing 10,000 non-existent and fraudulent water rights claims, and exploiting the prima facia provisions of Montana law to create chaos within the state adjudication process.

Pertaining the prima facie references in the state’s brief to the water court, The 2014 Governor’s Report says this about Prima Facie evidence:

Although the Tribes’ claims for off-Reservation treaty-based instream flow rights are less certain, the Tribes have indicated that their claims in the adjudication to such rights will be far more  extensive and widespread than the eight individual and fourteen co-owned rights that would be decreed under the Compact. 

Such claims constitute prima facie proof of their contents, meaning that they will be accepted as claimed by the Water Court unless other water users successfully object.

This places the burden of objecting squarely on the shoulders of individual water users.

What about Montana’s responsibility in all of this?  Prima facie evidence in law is sufficient to establish the fact unless questioned.

Why has Montana never questioned or challenged such spurious claims like Idaho did with the Coeur D’Alene tribe?  

Could it be that Montana agrees with the 10,000 claims and already has a plan in place should the Flathead Compact fail in the water court?

We can’t help but wonder what the three amigo’s plan will be when Water Court makes its decision on the Compact and the fireworks really begin.

We wouldn’t want to be in Greg’s shoes when that happens.

Montana will certainly reap what it has sown with its decision to support this overreaching and lopsided water compact, and its failure to protect the rights of its citizens. 

Again we ask the question:  Why didn’t Montana call off negotiations?

Something very FISHY is going on in the state of Montana.

Additional Information

If you are interested in seeing if these claims could impact your water rights in a future adjudication or legal action, a copy of our 10,000 claims summary can be found at this link. 10,000 Claims Summary listing all of the waterways in Montana that the US and CSKT have made claims.

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