© 2023 Concerned Citizens of Western Montana

We begin by reminding you that we are not attorneys and as such cannot give you legal advice.  Only you can decide a pathway forward that works for your needs.

This article focuses on the “settlement (MEDIATION) track” ordered by the Montana Water Court for objectors to the Flathead Water Compact decree.

In essence, the several hundred or more objectors to the Flathead Water Compact Decree are one of the last lines of defense against the water and jurisdictional grab that is represented in the Flathead Water Compact.

We are thankful to each and every person that took the time to file an objection.  It could very well be that the efforts of this group of people will help protect all of the 360,000 water users in western Montana who will be affected by it.  

They deserve our respect and support.

The Mediation Process Could Begin Soon

The Water Court Case Management Order #1 for the Flathead Compact Decree does not provide a specific date for the beginning of the mediation process, but says this:

  1. Settlement track. Pursuant to Section 85-2-233(5)(b), MCA, the Court places all objections on a settlement tract until the earlier of (a) September 29, 2023, or (b) such other date set by the Court in a subsequent order…..
  2. Settlement Process…… Following the initial Case Management Conference (March 22, 2023), the mediator will set a schedule and process for resolution of objections. This process will include the opportunity for each Objector to resolve their objections with the Compacting Parties. The settlement process will include opportunities for both in person and online settlement conferences.

We take the above language to mean that the mediation process will begin fairly soon. What we don’t know at this time are any of the details. While we cannot know for certain the starting date, we ask you to begin your preparation now.

Preparing for Mediation

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As you put on your mediation armor, we want to begin by getting something out in the open. 

The position in which Montana has placed its citizens with this water compact is unconscionable.  It was fully within the state’s reach and power to protect its own interests and those of its citizens by saying no to the water compact.  Montana’s “leadership” instead chose their own selfish path of least resistance, creating a huge burden for the people to bear. 

Had the state said no to the compact, it would currently be preparing for battle against the unreasonable demands of the United States and CSKT. 

Unfortunately Montana became complicit in the compact fraud that is taking place.  Also, by agreeing to the mutual defense provisions of the compact, Montana will not be defending the interests of its citizens in these proceedings,  Instead, the State will be preparing for battle against its citizens, along with the United States and the CSKT. 

We must never forget where the accountability for this mess lies, but objectors must move past any righteous indignation and anger and get to work.  This work begins with a commitment to stand firm with your objection and to also to put forth the effort needed to resolve it to your satisfaction. Ask yourself and know the answer to the question  “what will resolve my objection?”

Keep in mind that mediation is not a venue where your objections to the compact will be heard by a judge who has the authority to  decide the case on its merits. 

This Water Court mandated Mediation Track is intended solely for the purpose of  settling your objection, or to push you toward withdrawing it.   That is why they call it the Settlement Track.

Understand the Framework in Which You are Dealing

The Water Court has pointed objectors to the following information pertaining to the rules and sideboards for the mediation process as well as the hearing process that will follow mediation.

Documents Referenced in Water Court Case Management Order 1:

We urge you to get to know the basics of these guidelines and rules, and at least know where to go to look for the information as the need for it arises.

It is our understanding that you will be held to these standards as this case moves forward.  We don’t know specifically how these guidelines and rules pertain to the mediation process per se, but its a safe bet to assume they also apply to mediation.

By pointing objectors to these documents, the Water Court is putting you on notice that there are specific guidelines that need to be followed with respect to communications, notification of the various parties, as well as rules related to evidence and other matters.  It will also help you better understand the procedures that are to be followed.

First, Understand Your Adversaries

This article is inspired by a comment received on our recent post So Now What?  

“One thing as a starter might be a background check on this so-called ‘Senior Water Master’ Madeleine Weisz. And a few questions about who chose and why not an independent outsider agreed upon by consensus of parties, etc.”

Mike’s comment is spot on.

After all, Montana has essentially compromised itself with respect to this compact, so it’s important to constantly be on your guard.  There is nothing wrong with questioning everything, starting with who, what, when, where and why?

The Water Court website shows that the United States BIA and CSKT are defendants in this case and objectors are the litigants.  We are not certain about what specific role Montana is playing, but because of the mutual defense provisions of the compact, we fully expect that attorneys for the state will be defending the compact and working against objectors during the mediation and hearing processes.

More importantly you are best served to remember that the state of Montana is your adversary in these proceedings.  Keep in mind this includes its courts, its agencies, and even its appointed authorities such as this mediator.  The State should be treated as though it is no different than the United States or the CSKT in this situation. 

Although the mediator is supposed to be a neutral party, their goal is to have you settle your objection so the water court can move forward. With that in mind, please resolve yourself to the fact that you cannot “help” these parties resolve the problem they intentionally created for you. 

If we were to guess, it will not be the intent of the United States / CSKT to settle by making any concessions.  It is far more likely that they will be looking for any avenue possible to ensure that your objection is dismissed.

These comments come from the perspective of more than a decade of experience with the water compact battle. 

We were naive when we went into this.  We thought that if we provided factual information to state leadership and the legislature that they would not ratify the compact.  Time and time again, Montana used our work against us to strengthen their monstrosity.  Never once were its core elements improved. 

Our mistakes included our belief that the state would act in the interest of its citizens.  We also did not understand the momentum that was already behind the compact.  We are talking about billions, if not trillions of dollars.  Money talks.  This compact and the means used to get it this far is every bit as corrupt as Congress and the leadership of the state of Montana.

It would behoove every one of us to remember that Montana is an adversary to the people with respect to this compact.  It is a fact that the state is obligated to defend it, and based upon our experience with the parties to the compact and the corruption within the state legislature and our “Congressional Delegation,” I will add these words:  by using whatever means necessary to do so.

We’ve said this before and will say it again.   There has been nothing good faith about this compact from the time Montana agreed to the tribe’s 2001 proposal and  hired Jay Weiner in 2004.  That is where the deception began, and it is still going on.

Did we mention that Montana is not our friend?  And for as bad as that fact is, keep in mind that DNRC is also compromised.  Any “adjudication” that proceeds during or after the Flathead Compact Decree is decided one way or another, if there even is one, will not be pretty.

We highly recommend that you use the mediation process to gather your own information, and to help you better understand your adversaries, including their strategies, techniques and positions.   This information will be invaluable to you should you get to the hearing phase of the proceedings.

Do not fall into the trap of giving them your strategy or plans.  Do not give them information that can and will be used against you. 

We also want to remind you that  the US / CSKT used one simple technique that worked quite successfully for them during compact negotiations. They made outrageous requests that stood firm on the principle that they were not negotiable.  After standing firm on these demands for years, Montana folded like a house of cards. 

Hence, there is no reason at all to think, to believe, or to even be fooled by any notion that the parties to the compact want to “settle” anything with you.  

The parties to the compact got everything they wanted, and probably more.  They simply want you to agree to their theft.  

DO NOT BE QUICK TO  GIVE THEM YOUR AMMO.  IN OTHER WORDS, DO NOT SHOW THEM YOUR CARDS PREMATURELY. 

Your strategy is best kept for an appropriate time in the process. 

Keep in mind, it will be the goal of the Mediator as well as the Defendants to assess your strengths and weaknesses and to deceive you into prematurely playing your defensive hand.  Rest assured if you give them these weapons they will be used against you.

Understand the Mediation Process

It is imperative that people not be caught off guard by any actions taken by the water court or the parties to the compact going forward, including timing. 

Objectors must very quickly turn their focus and efforts on fine tuning their arguments and preparing themselves for the mediation process. 

It’s important for you to go into mediation at least understanding what the basic process is, so you are not surprised by it, caught off guard, and to help you keep your composure throughout it. 

Be wary of the traps and snares that very well can be used against you.

While these videos are not specific to a water dispute, they give a pretty good overview of the process,  To watch both will take an hour of your time, but each provides important information  for intelligence gathering and other strategies to strengthen your position, and to help you prepare for mediation.  

More to Come

Long ago, this billboard was placed on Highway 93 headed from Mission to Polson:

Eagle Billboard GUARDIAN OF FREEDOM

While the website associated with this effort is long gone, the people behind it are not.   Its simple message has not changed. 

If we would add anything at all is that we now understand that it also takes resolve and courage to fight for our freedom.  No one ever said this process was going to be easy. Our success firmly depends on how much effort we are willing to put into the battle.

We envision that this article will be part of a series posted with the goal of helping people gain the confidence and knowledge they need to successfully do battle against this Goliath.

Thanks for taking the time to read this article.

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