© 2023 Concerned Citizens of Western Montana
Note: We are not privy to details of the Montana Water Court mediation meetings that are being held at this point in time, however we are picking up on word of a few common bits and pieces, some of which we would like to address in this article. Nor are we attorneys. This post is not intended to provide legal advice to objectors of the Flathead Water Compact Decree. We strongly urge you to do your own homework.
We’d like to begin by again expressing our disdain for the fact that people have been forced by the Water Court into a mediation process at all.
Let us be blunt. There is nothing to be mediated.
Sending approximately 1,000 objectors through the mediation process, also known as the “settlement track” of the proceedings, has nothing to do with reaching a “settlement” or addressing your serious concerns about the water compact.
The whole purpose of mediation is to convince as many objectors as possible that their water right is “protected” and that they should drop their objection to the compact.
Will my well be protected?
Over the years, this is one of the questions that we heard most in public meetings from a wary, but uninformed citizenry. Most people wanted to know if their well or municipal water source was protected in the compact so they could move past their Flathead Compact related concerns and onto the business of living.
The Compact Commission knew this, and took great pains to mention at every opportunity that they were working diligently to ensure that “existing uses of water” would be protected.
We ask you to think about the Commission’s statement carefully.
Western Montana is blessed with an abundance of clear, beautiful and beneficial water. In fact, according to the DNRC’s own 2014 Western Montana Water Plan publication, less than 2% of that water is consumptively used, mostly by irrigators.
The rest of the water either remains in its existing source or is returned to the stream or river to flow downstream through the Columbia River Basin and available to be used again.
There clearly is more than enough water in western Montana to supply everyone’s needs.
Unfortunately, because irrigators are the largest consumptive users of water in western Montana, the compact targets them for call instead of protecting their needs. This speaks to the motives of the United States / CSKT and the extent of overreach agreed to by the three compacting parties. They are so greedy in fact, that they do not want any of the water in western Montana to be consumptively used.
So why would existing uses of water have to be protected at all if the compact simply provided for the needs of the 5,000 Flathead Indian people living within reservation boundaries?
The answer to that question is because it did not provide any water for the needs of individual tribal members. Instead of protecting its own interests and those of ALL OF ITS CITIZENS, Montana ceded most if not all of the water in western Montana to the United States / CSKT for fisheries, and to the detriment of tribal members and everyone else.
Not only did Montana cede all that water to the United States and CSKT, not one drop of water in the compact provides for the needs of the tribal government, the Indian allottees, or Individual tribal members.
The amount of water ceded by Montana in the Compact is two times more water than the 25 million acre feet of water that actually flows out of western Montana in any given year!
Simply put, Montana had to play the game of “protecting existing, verified uses of water,” because it knew it that the cessions it made in the compact compromised both existing and future uses of water throughout western Montana.
Supporting the Flathead Compact supports the deprivation of existing and future uses of water for EVERYONE in western Montana, both Indian and non-Indian.
A Call is a Call is a Call
The simple truth is that as long as the Flathead Compact exists, your well, and any other water uses for that matter, cannot be protected.
Here’s why:
The Flathead Compact is Non-Negotiable
Pertaining to the “mediation / settlement” track of the current water court proceedings, the Flathead Water Compact decree is unamendable and the parties to the compact have made it abundantly clear that its terms are non-negotiable.
By law, the water court can only give it a thumbs up, or a thumbs down in these current proceedings.
The compact cannot be amended by tribal agreement in the mediation process or otherwise, in order to give deference to individual water needs. Nor can it be changed in any way during the Water Court Process.
The Water Court has also made it abundantly clear that the Flathead Compact proceeding is not about your water rights, so don’t allow yourself to get caught in the mediation trap of discussing your water rather rights during this proceeding. A better approach instead is to stick with the illegalities and constitutional flaws within the compact that must be determined in a judicial water court hearing.
Keep in mind that non-compact water rights in Basins 76L (Flathead River below Flathead Lake) and 76LJ (Flathead River, to and including Flathead Lake) will be determined during an adjudication proceeding at a future date.
The water rights in all other hydrologic basins in western Montana (76x) are currently in adjudication proceedings. It is shameful that they are taking place without the benefit of water users being able to see the Flathead Compact water rights within their own adjudication process, and they are also not able to see the far more overreaching and expansive 10,000 claims of the United States and Tribes.
The Flathead Compact “agreement” between Montana and the United States / CSKT, is unconscionable in that it awards to the United States and CSKT more water than exists in western Montana.
THE COMPACTING PARTIES AGREED TO TIME IMMEMORIAL PRIORITY DATE FOR NEARLY ALL OF THE WATER CLAIMED IN THE COMPACT. THIS VIRTUALLY ENSURES THAT THE UNITED STATES / CSKT WILL HAVE NO COMPETITION FOR THE WATER IN WESTERN MONTANA.
No matter how you look at it, no county, city, business, or individual can compete with a time immemorial priority date.
In addition to the water, their so called “settlement” eliminates the constitutional protections of due process and equal protection under the law for everyone living within the boundaries of the Presidentially opened Flathead Indian Reservation.
For all intents and purposes, Montana’s DNRC water rights records have been handed over to the CSKT, an adversarial party to every water user in western Montana.
Your water needs have virtually been placed under the control of your adversary via the Flathead Compact.
Mediation as a Means of Eliminating “Settling” Objections
We are hearing that the mediator comes into the meetings prepared with copies of your water rights and your objection.
It is highly likely she is already aware of the positions of the United States / CSKT defendants with respect to your water rights, and has identified the water rights holders and objectors that could be subject to call by the tribe.
We believe the goal is to classify objectors into a few categories in order to achieve maximum dismissal of objections.
Such classifications could include governmental entities including counties, municipalities, water districts and irrigation districts.
Other classifications may be objectors whose water uses include municipal water, household wells, as well as individual irrigators.
They will likely separate those whose objection concerns evolve entirely upon their personal water use from those who are concerned about the entirety of the compact and its legal / constitutional violations.
Objectors will be divided again by those who retained an attorney for their objection and those that did not.
We believe that the state will see the most vulnerable group as those objectors whose main concerns are with their household wells and municipal uses of water that did not retain an attorney for the proceedings.
We would like to remind those objectors with legal and constitutional objections to the compact to stand your ground and keep sight of the fact that MEDIATION is not the proper venue to address such concerns. The Mediation process is not a legal proceeding, no matter how much they might want you to think it is. The mediator has no authority to amend the compact, nor can they deal with these issues. Legal and constitutional issues must be heard by a judge in a court of law. In this case, it will be the water court.
From what we can ascertain, the mediator’s goal appears to be a two-fold approach in order to get you to drop your objection:
- First there is the threat that if the compact is not ratified, the tribes would likely get even more water than is in the compact via the 10,000 claims or the courts, and
- Second, to attempt to minimalize the impact the compact will have on most users water rights.
In other words, expect to hear comments like existing uses of water are protected in the compact, that your well will not be impacted by the compact, and if the compact doesn’t go through, your personal situation could worsen, and so on.
We have even heard someone relay that the mediator conveyed that the compact says your wells are protected. If this statement was in fact made by the mediator, it is simply untrue.
Preparing Yourself for the Mediation Process
As you enter the actual mediation or “settlement” track of the proceedings, we ask you to consider these things. Do not be afraid to be bold and ask questions as necessary:
Could a Settlement Agreement be Construed to be a Consensual Agreement with the Tribe?
If you think that the United States / CSKT will make adjustments or accommodations to you for your water needs in order to reach a settlement of your objection, the possibility exists that you may be right.
Such an agreement or guarantee to protect your well or your water uses that is made by the mediator, or by the defendants will not result in a revision of the compact and does not address the legal or constitutional flaws within it.
An agreement like this is essentially self-serving, and while it will may temporarily alleviate your concerns about the impacts upon your personal water use, be sure to go into it with your eyes open.
If you choose to take this route to protect your water needs you need to do so with the understanding that you will be making this decision to the detriment of others many of whom may be your friends and neighbors as well as individual tribal members, and the irrigation community.
It’s also possible that any such agreement will include terms and conditions for non-disclosure to the public. This means that the public will have no visibility of what the rules of the road are. Nor can they possibly know who has consensual agreements with the tribe and who does not. This will make it virtually impossible to enforce your own claims for water in the bigger picture of things.
Should you take that pathway in the mediation process, what you could end up with is something that could be construed legally as a consensual agreement with the tribe. A consensual agreement is NOT “contract law”.
The state might fancy up its name and call it something else such as a memorandum of understanding (MOU) or an agreement in principle, or even taking Steve Daines’ lead, a “water rights protection agreement.”
Be sure to ask questions about the nature of any agreement you are considering during the settlement / mediation track of the compact proceedings.
Do your homework to understand what you may be getting yourself into should the United States / CSKT renege upon their promises to you. Could you be surrendering your jurisdictional rights for resolution to a federal or tribal court as a result of your agreement?
Objectors: Stand firm in your conviction to Oppose the Entire Compact
We urge all objectors to stand firm in their conviction to oppose the compact in its entirety. Its legal and constitutional flaws cannot be addressed without throwing the whole thing out and starting over.
For more information about preparing for mediation, please see our other posts on this subject linked at the bottom of this post.
Be Forewarned: Stay Alert Concerning Local Governments in Mediation
We also need to keep focus on the role of our county, municipal and other small government entities in this water court mandated mediation process. While we understand that these entities want to protect their own interests, they cannot be separated from the interests of the people they represent.
For as much as we’ve been told that these proceedings are “confidential”, we do not see how our local governments can legally or constitutionally comply with that mandate.
Should the defendants offer special terms to these entities, will the confidentiality mandate of the mediation proceedings block the public from their right to transparency by our county and city governments?
Think long and hard about this.
Should any of these governmental entities even consider a settlement agreement with respect to their objections, CITIZENS MUST LOUDLY AND VOCALLY DEMAND THE DETAILS OF ANY SUCH AGREEMENT BEFORE IT IS SOLIDIFIED.
Don’t let the contacting parties get away with a non-disclosure or other confidential agreement that prevents you from understanding what your county or city have signed you up for.
Other Helpful Mediation 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
- Objectors: Stand your Ground
- More Advice 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 
We should also have asked if the call on irrigators as per the water abstracts in the compact mentioned in this article were intended to make irrigators out to be the bad guys once water calls are made by the US / CSKT?
While the US / CSKT may call irrigation water, irrigators in turn may have to call other water users more junior to them.
In addition to the obvious negative impacts this will have on agriculture productivity, we can’t help but wonder if such calls could (intentionally) result in non-irrigation water users eventually turning against irrigators for enforcing call against the water of other users.
It is not likely that people will connect irrigator’s actions to the problems caused by the overreach in the compact, however should this chain of events take place, the irrigator calls will be the effect, with the compact being its cause.
This comment is being posted for Christopher:
This is an old story we have hashed in the past, where by it was falsely stated by proponents of the compact, et al, including the Compact Commission and its members, that only the irrigators would be subject to call. And though ‘technically’ that maybe mostly true, upstream wells of lower priority dates could be called by downstream users. Indeed most of those higher priority dates would accrue to irrigators, in one manor or another.
The clear point should be made that domestic wells by any other ‘name’ are no longer ‘exempt’ wells, and are subject to call, even to a zero use, by ‘senior’ users.
In sever drought years, this possibility is succinct.
Can you even sell a property, particularly residential, without water?
As per the wells, this IS INDEED an old story, however we are hearing that mediation may bring the “compact’s protection” of existing uses of water into the picture once again.
People need to understand that the compact cannot protect your water from call. It is the sheer volume of water in the compact awarded to fish if you will, that places your water rights at risk for call. Perhaps not call by the tribe, but from someone else with water rights more senior to your own.
This is how the game was played.
The state wanted people to believe that existing water rights with the exception of irrigation are protected in the compact. The state attorneys and spokespersons failed to mention to the public just how the call process works. It is similar to a domino effect.
Don’t fall for this same old trap in mediation.
We’d like to mention that the above article also includes new information concerning mediation that may also be helpful to readers.
Reblogged this on Points of Perspective.
Thank you!
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