So Now What?

© 2023 Concerned Citizens of Western Montana

Note:  This post was inspired by a question received from an objector to the Flathead Water Compact Decree.  It pertains to those who filed an objection to the Flathead Compact Decree on or before February 9, 2023.

If you are an objector to the Flathead Water Compact Decree, you probably have received the Water Court notification letter that lays out a partial roadmap for the Flathead Water Compact Decree process going forward.  The Water Court has identified two tracks going forward– first a mediation track, and then the Court hearing track.

According to the notification, the Water Court has appointed a mediator and all objectors are required to participate in that process.  Should any objector fail to participate in the mediation process, the court will dismiss their objection.

So many of you are probably asking yourselves: Now what?

Here are a few thoughts that may help you.

We would like to begin by saying that we are not attorneys, and don’t intend to provide any legal advice.

Ultimately only you can decide on a pathway forward in this process that is best for you.

Mediation

The Water Court has ordered objectors to go through a mediation track ahead of any court hearing. 

The mediation phase of this special proceeding is probably intended to eliminate as many objections to the Flathead Compact Decree as possible. The obvious goal would be to get objectors to either settle their objection, or to withdraw it.  

The largest group of objectors and probably the most vulnerable are those who entered their objection pro se (without an attorney).  This is simply a matter of fact, but it is nothing that any objector should worry about.

We’d like to encourage all objectors to stay the course and confidently take their objection(s) through the mediation process. 

Keep in mind that the Water Court made it clear that the mediator cannot compel a settlement, so objectors really have nothing to lose by going through mediation.

We urge you to approach the mediation process with the strength and confidence of the arguments made in your objections and also without the intent to withdraw or to settle your objection. 

We’re charting new territory with this special proceeding, so we cannot say for certain, but having requested a hearing with the water court, you should be afforded that opportunity if you’ve gone through the mediation process without settling or withdrawing your objection.

As the proceedings move forward, there will very likely be decision points along the way that may help you to strengthen your arguments, if necessary, or to make a decision about your next steps.    

While there may be an effort by the mediator to diminish your objection in an effort to settle or to have you withdraw your objection, you have the right to disagree with their arguments, to not settle, and to proceed to a hearing.

If for some reason the mediator recommends that Water Court Judge dismiss your objection after you’ve gone through mediation, then that is on the Water Court.  First, if the Court does dismiss your objection, you do have a right to appeal that dismissal to the Montana Supreme Court.  Importantly, the record of your actions to participate in the mediation will show that you stood firm in your conviction about the serious issues with the compact that will affect your water uses, due process, property rights, and potentially the value of your property.

By standing firm on your objection and not settling or withdrawing your objection in the mediation phase, you will go on to the hearing phase.  At that point, other opportunities could present themselves for your participation in the hearing phase, for example, collaborating with or joining others with similar concerns.

How the Water Court chooses to manage the Hearing phase, for example combining similar objections into a hearing or group of hearings, will help you in your decision-making. This may very well offer objectors an opportunity to work together to provide more powerful arguments against the compact, to chose a single spokesperson whether pro se or attorney, to support the arguments of other objectors, and other actions.

Informational Zoom Call

03/22/2023 is the first date on the Water Court’s timeline is a Water Court Case Management Conference.  The conference is limited to the discussion of procedural items, and participation is optional for objectors. 

Details for the zoom call can be found at this link:  03/22/23 Zoom Call Details

If you wish to speak or ask questions at the meeting you must notify the Court not later than March 15, 2023. The notification must state the reason for the request.

We encourage all objectors to attend the Water Court Case Management Conference Zoom Call on March 22, 2023.  

Hopefully at that meeting the Water Court will clarify questions as to what the Mediation Track entails so you will have a better understanding of the process. 

You probably have a lot of questions about the process and the water court should be able to answer most of them at the March 22nd Conference Call. 

Keep in mind, the purpose of this call is ONLY to discuss procedural items.  Remember the Water Court cannot give legal advice or answer legal questions, nor will they discuss specific objections during this meeting. 

Questions

We also think it is important for objectors to be armed with as much information as possible as they navigate their way through the Mediation process. This is the only way objectors can make informed decisions. 

For example, it would be extremely helpful for objectors to understand the legal implications of a settlement or a withdrawal of an objection during the mediation process. 

Here are a few questions pertaining to the mediation process that may be helpful to your decision-making: 

Settlements:

We acknowledge that some people may want to settle their individual water rights with the parties, for example, in asking the single question that some water users will ask  “Will I get my water”?

If the objector agrees to a settlement in mediation:

• Does a settlement effectively adjudicate your water right or will you still be able to participate in the state wide adjudication process for your hydrologic basin?
• Is the mediation settlement binding with the Water Court, and do you have the right to appeal it at a later time?
• What is the nature of a settlement, is it along the lines of a consensual agreement with the CSKT, or does it fall under state law? 
• Are settlements treated differently from a legal and jurisdictional standpoint, depending upon whether you live outside of or within reservation boundaries?

Appeals:

• What are your rights with respect to appealing any outcome of the mediation process?
• Because of the Unitary Management provisions in state law, will the appeal process differ for people living within reservation boundaries? 

Withdrawal of Objections:

• What is the legal effect of the withdrawal of an objection during the mediation process?
• Does it affect your legal standing or ability to participate in the state wide adjudication process for your hydrologic basin?

Within or Outside of Reservation Boundaries:

MCA 85-20-1902, the Unitary Management Ordinance says “any provision of Title 85 MCA that is inconsistent with this law of Administration is not applicable within the reservation.”  As of the writing of this post, Montana has not publicly stated which provisions of MCA apply within  reservation boundaries, and which do not.

• Do the water mediator provisions within Title 85 the Montana Water Use Act still apply to people living within reservation boundaries?

We plan to do some research on these questions and will do our best to provide any information that we are able to come up with. 

In the meantime, feel free to comment with your own questions in the comment section that can be found below this post. 

We’d also appreciate hearing how things are going for you. 

You are also welcome to contact us through the CONTACT page of this blog.

Thanks again for taking the time to object to this horrible compact. 

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