© 2023 Concerned Citizens of Western Montana
As objectors move forward with the mediation process, it will become more difficult to provide updates as to how it is proceeding, mainly because of the confidentiality aspect of the proceedings.
It is interesting to see that people can be hamstrung via confidentiality in mediation on such a public and controversial issue, when a court proceeding is public. We cannot help but wonder if this is intentional. It’s almost as though it imposes some sort of a gag order without having an official gag order. It also may be intended to prevent objectors from talking with one another. This really is not okay.
By all appearances, the Water Court seems to be grappling with the fact that there were approximately 1,000 objections to the compact. That is a very good thing.
We would hope that the sheer number of objections would put the Water Court on notice that something is terribly wrong with the compact, and they need to do more than a cursory review of it. Thus far, they’ve rubberstamped 17 other compacts. Some, like the Forest Service Compact were left quite open ended allowing the feds to file future claims for new forest service needs, yet very few people objected to it.
In an ordinary situation, the significant number of objections to the CSKT compact would be a game changer, however we are talking about Montana, now obligated by compact language to mutually defend it, along with the United States and CSKT.
It is why we were sent through the mediation process. Please do not doubt that the intended goal of sending people through the mediation process is to get as many people as possible to withdraw their objections to the compact.
The Mediation tab on the Flathead Compact information page even now highlights it so it can’t be missed:
If you no longer desire to be part of these proceedings and would like to withdraw your objection, please complete the Withdrawal of Objection form, file it with the Water Court, and send a copy to the Compacting Parties.
We also noticed this morning that the Flathead Compact information page has coupled itself with google informatics and is now asking people who drop in to their page for updates to accept their cookies.
We aren’t sure, but does this mean that the mediation proceedings are supposed to be confidential for us, but the state can use the cookies from their notices page to track our movements and research on the internet?
Advice from the Group Who Put on the Objections Workshop
As you go through the mediation process, we respectfully ask you to consider this information sent out to Objectors last week by the folks that put on the Objection Workshops last fall. Our sincerest thanks to them for doing all they can to keep objectors to the Flathead Compact Informed.
Keep in mind, this information is not intended to be legal advice, but is an attempt to provide some common sense considerations for objectors:
First – We do not believe our issues and objections can be resolved by mediation because we believe that the Water Compact and MWRPA are Unconstitutional among other issues and can only be resolved by a court with a judge!
Below are some tips for the mediation process:
1 – While it’s important for you to be knowledgeable about the compact, RESIST THE URGE to demonstrate all you know about the water compact! You don’t want to get trapped into debating compact details.
2 – Don’t use specific objections, as the mediator will push you for details and take notes for future reference. We do not want to provide them with information to help fight against us!
3 – While it is true the Compact is a product of Fraud, Collusion and Overreach – Don’t try to prove it during mediation
4 – Don’t try to fix the Compact. The parties to the compact you are objecting to went to great lengths to ensure that it could not be revised. Everything in it is considered non-negotiable by the CSKT. While the mediator may want you to think she is interested in finding a resolution to your concerns, she has no authority to make revisions to the compact.
5 – Don’t trust that your interview will remain confidential. Remember that the State is not our friend on this issue. It is a party to the compact you are objecting to.
6 – Mediation is not the appropriate venue to resolve the legal and constitutional issues with the compact, and for that reason your objections must be heard and decided by a judge.
7 – DECLINE ANY OFFER OF A CONSENSUAL AGREEMENT WITH THE TRIBE to “resolve / settle” your objection.
8 – Be prepared for threats of litigation up to and including the 10,000 claims. Ignore them and stand your ground. Here is a blog about this: https://westernmtwaterrights.wordpress.com/2023/05/04/are-the-10000-claims-a-threat-or-a-promise/
Please be aware that further communications about the water objections/mediation will be very limited, if anything at all, as communications between objectors could harm an objector(s) and their cases would be thrown out. I will do what I can to keep everyone informed but it will be very limited as I do not want to be the reason for someone being removed from the process. During the Zoom meetings last week there was a question about what disqualifies an objector from the process. Maddy, the mediator, answered breach of confidentiality, so be careful!
If you have questions, call the mediator but try to keep the questions as generic as possible as this phase of the process is being used to eliminate objections – not to protect your water rights! Be Careful! Going to court is the only way to resolve all of the objections! The Water Court has all of the filed objections, so you do not need to address questions about your objections – refer them back to your objection! Do not divulge any objection information – the less said the better!
Your goal in this process should be to remain part of the objection process all the way to the Water Courts Hearing Phase – keep remembering that as you meet with the mediator so you don’t lose sight of the end goal!
We need to drag the objection process out as long as possible and stay in the game. The process is meant to scare you into dropping out of the process – don’t let that happen to you!
Don’t settle outside of the official court proceedings – there are many instances where the tribe has gone back on their “Word”. Any settlement must occur through the courts!
Other Helpful Information
We’ve also posted this information on the blog that we hope will be helpful to you as you begin to actively engage in the mediation process:
Get Ready to Put on Your Mediation Armor
Mediation 101: A Primer on How the Mediation Process Works
Mediation: Some Considerations for Objectors
As new information becomes available, we will try to post it, but if you miss the posts, please check the NOTICES page of the blog for the latest updates.
We wish you all a very successful journey into mediation and look forward to getting as many objectors as possible through to the HEARING track of the proceedings, where you will have the opportunity to have your objections to the compact heard in a court of law.
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Western Montana Water Rights 
This comment is being posted on behalf of a reader who is concerned about the discussion in this post concerning confidentiality:
Water Court Case Management Order Number 2 says this about Confidentiality in the Mediation Process:
All communications, discussions, representations, and settlement proposals made during the settlement proceedings are privileged and confidential and are not subject to discovery or admissible at any trial or hearing in this case. The Mediator will not disclose any such confidential settlement information with any other person, including any person at the Water Court other than those staff persons specifically assigned to assist the Mediator.
It can be found at this link:
Click to access no_2.pdf
Our friend Christopher has requested that we post what follows below on his behalf.
With regard to the following segment in the article posted above:
Please be aware that further communications about the water objections / mediation will be very limited, if anything at all, as communications between objectors could harm an objector(s) and their cases would be thrown out. I will do what I can to keep everyone informed but it will be very limited as I do not want to be the reason for someone being removed from the process. During the Zoom meetings last week there was a question about what disqualifies an objector from the process. Maddy, the mediator, answered breach of confidentiality, so be careful!
Firstly mediation is NOT a legal process. The onus of confidentiality is on the mediator. As such the mediator ethically has the responsibility of keeping each party’s ‘internal’ consultations separate from the other party(s). Mediation does not always have the ‘purity’ one would hope for in that regard. It goes without saying that if there are ‘internal’ consultations within the Trilogy of the feds, the state, and the tribes, with the mediator, that you will never hear a squeak about that. Certainly it is assumed that within the ‘Trilogy’ there have been vast communications, without threat of a loss of process (due process?) to any member of the Trilogy.
There has already been the threat of loss of process if one does not participate in the mediation process. Again, mediation is not a legal process. The court hopes that for it, mediation is a short cut. Any other intimidation by the mediator as to a loss of due process (The Montana Rules of Civil Procedure) with regard to ‘outside’ communications with others, may seem to be inapropos, but it is questionable as to whether or not that would put you at risk of losing your otherwise good standing in ‘due process’. Mediation is not a legal process. And certainly one would have the clear freedom of discussing one’s concerns with lawyers, family, and other significant persons, unto themselves. How that might become restrictive is certainly questionable.
With regard to a court order #2, loosely qualifying confidentiality, the court may be over-stepping its bounds inappropriately interfering in the mediation process by setting extra-judicial conditions to just one side of the mediation — as certainly the Trilogy has not likewise been restricted. Thus there is an ethical element here, whether it comes from the mediator or the court.
If such is deemed inappropriately intrusive, with the proper execution of your legal process, you may wish to ask how that is in keeping the Montana Rules of Civil Procedure, with a specific citation therefrom.
This is not legal advice. Consult with your lawyer, if you have one. Mediation is not a legal process.
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