No More Kicking the Can Down the Road

© 2023 Concerned Citizens of Western Montana

As Montanans affected by the overreaching and unconstitutional provisions of the Flathead Compact, we have to begin thinking beyond the upcoming mediation process in the Water Court that will soon be taking place. 

We can’t lose sight of the fact that the water court proceeding in many ways is little more than a mandated distraction that objectors need to go through in order to get to a hearing by the water court judge. 

Notwithstanding the fact that the Compact is already effective and is being implemented by the three government parties, this whole special proceeding of the Water Court is designed to complete a “judicial review” of the Water Compact, or to give the impression of one. 

The mediation process mandated by the Water Court is little more than an attempt to eliminate as many objections to the compact as possible.  The parties to the compact have no intention of settling anything in mediation.  Why would they? 

One could say that participation in this process is the price that folks must pay to get their voices heard by the Water Court judge. 

Water Court: Thumbs Up or Down?

Its important to take a realistic look at the water court process to discern what it could mean to the water compact battle. Keep in mind that at this stage, it is only the tribe’s compact granted water rights that are being considered by the Water Court. 

Your water rights are not part of this equation. 

The CSKT Compact page on the Water Court’s website says this under their “frequently asked questions:”

Whose water rights are involved in the CSKT Compact?

This case only involves the reserved water rights described in the CSKT Compact and the Preliminary Decree. The case does not involve state-based water rights owned by any private party.

This means that your water rights aren’t being considered as part of this proceeding.  In order to defend your own claims, you will need to participate in the state wide adjudication proceeding for your water basin at a later date.  Unfortunately for many water users in western Montana, this will be well after the massive volumes of water rights claims by the United States and CSKT have been considered and potentially approved by the Water Court. 

Montana law provides that the Water Court may only approve a compact or declare it void. Section 85-2-233, MCA. It cannot change the compact or reinterpret it, the Court can only give it a thumbs up or down.

So after all of the mediation, the water court hearings, and the “judicial review” is completed, what happens if the water court gives the compact a thumbs up? 

Litigation by water users and other parties affected by it will necessarily follow.

There is little doubt that a “thumbs up” by the Water Court will increase our legal burden. 

This harkens us back to 2015 when then Attorney General Tim Fox told a legislator that although the state was aware of problems with the compact, it would be expensive for people to sue, and for that reason the state wasn’t concerned about litigation by citizens.

What happens if the Water Court gives the compact a “thumbs down”? 

The mutual provisions of the compact have obligated the three amigo governments to defend the compact against all challenges.  Of course they will litigate.

For all intents and purposes, it appears we will be going to litigation no matter what the outcome is in the water court.  The compacting parties not only are counting on that, they also believe that the Montana Supreme Court, and perhaps even some of the lower Federal Courts have them covered.

Will There Be Any Relief in the Lower Courts?

One of the problems plaguing our country is the failure of our court system to resolve issues by deciding lawsuits on their merits.  On the rare occasion when they issue a ruling from their ivory towers, the courts find it expedient to avoid addressing the root of the problem, and instead rule so narrowly that the larger issue that brought the lawsuit in the first place remains unresolved. 

We call that kicking the can down the road.

A failure by the court system to resolve the serious issues that actually manage to work their way into the courts empowers the bad actor to continue their destructive behavior by building upon the unresolved and unlawful overreach that occurred in the first place.  This leaves in its path a festering mess so large that the people impacted by the issue are unable to deal with it.

In the case of the issues faced in western Montana with respect to federal Indian policy run amok, the “can” is currently of such large proportion, it can no longer be kicked.

It is almost as though the issues have become institutionalized because they were built upon layer after layer of deceit, and condoned by the incompetency, corruption, or ignorance of the “legal experts” we wrongfully place in high esteem.

The overreach by the federal government and CSKT in the Flathead Water Compact, and acquiesced to by the state is so overreaching and monumental that it can no longer be ignored.

Legal Contrivances to Block Access to the Courts

In researching for this article, we wanted to look at some of the more common grounds for dismissal of a lawsuit. These challenges are pretty much boiler plate, and it is a fact that most lawsuits are dismissed by the courts without ever hearing a case on its merits. We need to make sure that we also do not fall into that trap.

You can rest assured that at least a few of these roadblocks will be used by the compacting parties during the Montana Water Court hearings and other legal proceedings going forward. 

• Lack of legal standing – Standing is not about the issues, it’s about who is bringing the lawsuit and whether they have a legal right to sue.
• Lack of subject-matter or personal jurisdiction – Does the court have the authority to make a binding decision over all the parties involved in a lawsuit, and to hear cases of a particular type or cases relating to a specific subject matter.
• An improper venue (location for the case) – proper venue is just as important as establishing a court’s jurisdiction. A case filed in an improper venue faces the threat of being dismissed or transferred.
• Insufficient service of process – did the plaintiff (petitioner) send the court summons, and a copy of their complaint to the defendant (respondent) directly?
• Failure to state a claim upon which relief can be granted – If this is alleged, the courts usually don’t look at documentary or other evidence at this stage and merely review the complaint itself to see if a claim has been made.

Article VII C.1.d of the Flathead Compact contemplates that some or all of the water rights in the compact may not fall under the jurisdiction of Montana courts and provides:

The Decree shall be filed by the Parties as a consent decree in Abell, or in Federal court as a new proceeding after the dismissal of Abell conditional on agreement by the Parties to seek the necessary State, Tribal, and Federal ratification of the Compact, if it is finally determined in a judgment binding on the State that the State courts lack jurisdiction over, or that the State court proceedings are inadequate to adjudicate some or all of the water rights asserted in Abell.

We aren’t attorneys, but believe that it could be argued by the compacting parties that state courts do not have jurisdiction over TRIBAL RESERVED WATER RIGHTS.   

Keep in mind, all of the water rights in the Flathead Compact are tribal reserved rights.   See  The Fraud of Tribal Reserved Water Rights

For that reason, we fully expect that if the parties to the compact are threatened by the possibility that the Montana Water Court or other state courts won’t approve the compact, motions could be made to shut down the Water Court proceedings and move them to federal court.

What is Lawfare?

We believe that the CSKT Compact was developed using a legal warfare or LAWFARE type strategy.   

Legal warfare, also known as lawfare, is the use of legal systems and institutions to damage an opponent or to deter or restrict an individual’s use of their legal rights and constitutional protections. It also describes a tactic used by repressive regimes to discourage or prevent individuals from protecting their legal rights via the legal system.  

This concept can be likened to the recent indictment of President Trump, the investigation and conviction of people who protested peacefully in Washington DC on January 6, 2022, and the failure of the courts look at the merits of voter fraud in recent federal elections.  Lawfare uses and abuses the legal system to break the backs of one’s opposition. 

While we are working on an article to lay out this case to you, here are some of the provisions of the compact that we consider to have LAWFARE attributes that will be more fully explored:

• Phony tribal reserved water rights to supplant and destroy private property rights
• Delegation of all compact amendments to the Secretary of the Interior – there can be no certainty and predictability for our water our property rights if the compact can arbitrarily be changed without the knowledge or consent of the people. 
• Because state law will diverge from federal law, Montanans will not know of changes to the compact, or if they are in violation of the law.
• The Compact deprives Montanans of due process and equal protection under the law
• Endless litigation because the Compact ensures no finality
• Mutual defense provisions in the Compact force citizens to fight against the deep pockets of three governments

Despite all of the efforts of the three parties to the compact to hogtie and prevent us from beating back this egregious “water rights settlement”, those of us opposing the CSKT compact stand soundly with the United States and Montana Constitutions, the rule of law, and private property rights.

The Can Must Stop with the CSKT Compact

In 2014, the Montana Land and Water Alliance  retained Richard Simms, Jay Stein, and Jim Brockmann for the purpose of trying to stop the Compact in the 2015 legislature.  Their legal arguments and the material they produced fell on the deaf ears of a state and legislature that had already decided to pursue the compact no matter the cost to the people affected by it.

Richard Simms, sadly now deceased, was very clear about telling us that the United States and CSKT would not stop until they are stopped. 

We absolutely believe that to be true.  For this reason, the coming court battle must be waged to stop the never-ending encroachment on the property rights of the people in Montana by the United States on behalf of one small but powerful, federally chartered tribal corporation government. 

Frankly any case that moves forward after the Water Court must be used for the purpose of seeking Finality and Certainty for everyone’s water and property rights in the future.   

THE CASE AGAINST THE CSKT COMPACT MUST BE HEARD BY THE COURTS ON ITS MERITS and not shifted off to a future resolution that will never be forthcoming.

The legal assault by the US / CSKT being waged upon the people must stop.  The tribe’s US Court of Claims and Indian Claims Commissions should have stopped the aggression when the tribe received their final settlement money.  However Montana breathed new life into the US / CSKT aggression when it failed to stand against the travesty that is reflected in the water compact.  So it is now up to THE PEOPLE to stop it once and for all.

WE MUST FIGHT FOR THE FINALITY that Montana knowingly removed from our grasp.  

Any case going forward must have the goal of deciding the future not only for Montana, but also for other western states with respect to water necessary for agriculture, and also for other needs of our country’s citizens. 

If Montana falls, so will land patents and property rights throughout the western states, by the multitude of tribal governments that have yet to resolve their own water rights with the United States.

A recent article in the Daily Interlake and the Lake County Leader tells us all we need to know about where this is going.

We do not know Mr. Sego who was interviewed for the article, nor do we speak for him.  We are pleased to see that he declared his intent to take his case to the United States Supreme Court if necessary.   

Sego has hired Holland and Hart LLP, a law firm that he believes has some of the best water attorneys in the nation, and vows to pursue his issues with the water settlement to the Supreme Court, as he did in New Mexico in a case involving the line-item veto.

“I’m gonna do the things the water court asked me to do, but in the end, I’ll still have the option, which I will take, to do this like we did in New Mexico and run it up to the Supreme Court. I know this, the tribe does not want this compact to go to the Supreme Court,” Sego said. “You have no idea how committed I am and how many dollars I’m gonna spend to keep my water.”

Can you see from the article that Mr. Sego’ effort is a threat to the compact?  The parties that support the compact, including traditional media, could not help but show their pro-compact bias by putting forth arguments that painted the compact as helpful and reasonable, and the people opposing it as anti-compact.

Hell yes, we are anti-THIS COMPACT.  Our future wellbeing depends upon our continued opposition to this overreaching and unlawful “water rights settlement.”   

If you have not read the Sego / Slack water court objection, we urge you to do so.  It can be found at this link:  Sharing an Objection

While there are no guarantees, it is highly likely that we can prevail if the right case is brought to the Supreme Court of the United States.

We strongly urge people to continue their objection efforts in the Water Court proceedings for the Flathead Compact, but also ask you to look beyond our water court busy work to where the real battle for freedom and property rights will ultimately be. 

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