© 2023 Concerned Citizens of Western Montana
We begin this post by thanking each and every objector to the Flathead Water Compact Preliminary Decree. We’re not sure if you even realize that your effort has already made a big difference. The Water Court couldn’t possibly ignore the thousand or so people that took the time to object to what can only be seen as government overreach on steroids.
If you have persevered, and are moving forward to the hearing track of the Water Court proceedings, your effort not only preserves your own standing in the battle going forward, but it will help many others who may not even realize the impact this compact will have upon them.
We also want to warn objectors that going forward, there is no reason to believe that the compacting parties will change their known pattern of bad behavior with respect to the negotiation, ratification and implementation phases of this compact. There has been nothing good faith about this compact, and we do not expect the Water Court proceedings to be any different.
Indeed, now that we are entering the hearing track, rest assured that the state, federal and tribal attorneys will use every means available to achieve their goal of dismissing every last objector. Keep in mind we are working within a Water Court that has never sustained an objection to any of the other 18 or so compacts that have preceded this one.
October 3, 2023 Hearing Track Conference Call
The hearing track of the Water Court proceedings for the Flathead Compact preliminary decree will officially begin this coming week.
Objectors should have already been notified that a Hearing Track Case Management conference is scheduled for Tuesday October 3, 2023 at 10:00 am. Mountain Time.
Instructions for accessing the meeting via Zoom can be found at this link
Hearing Track Management Conference or by directly referencing Water Court Case Management Order No. 2
While attendance at this meeting is not mandatory, the court has been clear in stating that “each Objector shall be bound by decisions made at the conference, regardless of whether the Objector attends.”
WE STRONGLY URGE EVERY OBJECTOR, AS WELL AS NON-OBJECTING MEMBERS OF THE PUBLIC TO ATTEND THIS CONFERENCE CALL.
The more people we have paying attention to the actions of the court and the compacting parties going forward, the better for everyone.
We all know that most objectors to the compact begin with a great disadvantage. Many are representing themselves pro se, and are not familiar with the workings of the courts let alone the legal ins and outs of motions, discovery and other procedural activities during this part of the proceeding.
It is fully expected that the compacting parties will take full advantage of this situation, including the exploitation of any real or perceived weaknesses of the objectors and of the Water Court itself.
We do know that it has been and continues to be the goal of the compacting party to leave no objectors standing between them and the Water Court’s approval of their compact.
Agenda for the October 3, 2023 Meeting
On September 22, 2023, the Water Court posted an agenda for the meeting found at this link:
Agenda for October 3, 2023 Hearing Track Conference Zoom Meeting
As participants in this proceeding, objectors have every right to expect the Water Court to ensure that all parties to the proceeding, receive fair and equal consideration and treatment.
Unfortunately, the agenda provided by the Water Court raises serious concerns that this may not be the case.
Indeed item 6 of the agenda provides a proposed structure and schedule for the hearing track makes it appear that the Water Court is giving a significant advantage to the compacting parties right out of the hearing track gate.
From item 6. of the Water Court agenda:
6. Discussion of the following proposed structure and schedule for the Hearing Track:
a. Phase 1 –Phase 1 will include a period for the Compacting Parties to conduct discovery, as necessary, and file motions addressing objections.
The Court anticipates a hearing on Phase 1 motions in Summer 2024. The hearing on Phase 1 motions will be conducted in person at a courthouse or other suitable location in western Montana.
b. Phase 2 – Phase 2 will include a period for objectors to conduct discovery, as necessary, and file any motions regarding the subject matter of filed objections. The Court will set a date for Phase 2 to commence, with an anticipated hearing date on motions in Fall 2024. A hearing on Phase 2 motions will be in person at a courthouse or other suitable location in western Montana. Prior to commencement of Phase 2, the Court will schedule and conduct a conference to discuss whether discovery is necessary, the scope of discovery, and potential consolidation of motions involving common issues
c. Phase 3 – Phase 3 will involve a trial of any issues not resolved by motions. The hearing on any remaining issues tentatively will take place in January 2025 at a suitable location in western Montana.
Objectors Beware
So here are a few questions that each of us should be asking:
Why in the world would the Montana Water Court have proposed such a sequence of events in the hearing track?
Is it possible the water court is using a strategy recommended by the compacting parties, rather than putting forth a proposal that allows objectors the opportunity to simultaneously participate with the compacting parties in the discovery and motions processes?
By all appearances, the water court appears to be giving deference to the compacting parties with this schedule. What would stop the compacting parties from eliminating objectors before they even have a chance to participate in the hearing track of the proceedings?
While we can’t be sure how the water court handled other compact proceedings, it seems that such a schedule in these proceedings could serve to allow the compacting parties to remove objecting parties out of the proceedings before they even have the opportunity to participate in them.
If that is not the purpose of such a schedule, it still appears to give an unfair advantage of time to the compacting parties with respect to the development their defense to the detriment of objectors.
It also appears that such a schedule would serve to minimize objectors ability to participate in the discovery of information from the compacting parties that could help objectors with their cases.
Keep in mind that the compacting parties came to mediation loaded for bear with their cadre of attorneys and experts in an attempt to eliminate as many objectors as possible. Their secondary goal would have been to gather as much intelligence as possible concerning the weaknesses of the objector’s positions.
Keep in mind that billions if not trillions of dollars are at stake with this compact, not to mention control over the land and waters of western Montana.
It is a certainty that the compacting parties will fully deploy an even larger number of attorneys and experts for the hearing track of these proceedings. Certainly they have already sliced and diced each objection, and have developed a strategy to pick off the most threatening of the objections that have been made.
It seems to us, that to have the Water Court suggest a schedule such as this falls right along the lines of such a strategy, making the compacting parties’ jobs that much easier.
Something really rotten is going on in Montana.
UPDATE: We are providing a copy of a document filed with the Montana Water Court on Friday September 29, 2023 by the attorneys for Sego / Slack, expressing their concerns about the proposed hearing track agenda and other concerns.
Western Montana Water Rights 
“…Keep in mind we are working within a Water Court that has never sustained an objection to any of the other 18 or so compacts that have preceded this one…”
That statement alone speaks volumes. Sadly.
To the best of our knowledge each of the preceding compacts had relatively few objections.. The water court has not previously seen anything close to the number of objections that have been filed against the Flathead Compact Decree.
This is to our advantage, however we urge people to be smart concerning the approach they take with the water court going forward.
We are in the process of studying and reviewing documents from other compacts with the hopes that we can glean helpful information from them that will help CSKT objectors avoid the same pitfalls that previous compact objectors fell into.
Now that the hearing track is upon us, our goal is to try to provide that information to objectors over the next couple of months so that they can begin to prepare any motions or briefs that might be necessary in the coming months ahead.
Though I do not meet the requirements to officially object, I and my family stand to lose when the effects of the abuse of authority displayed in this compact trickle down from the large land and water users to others like me at a slightly lower level. There are lots of reasons that all citizens should be actively involved here, but if not for that reason alone I try to stay abreast. I suspect I speak for others in the background when I say I value your efforts and the communications in this live blog. Regarding the reviewing of the previous 18 or so compacts for strategy and lessons, it is a worthy cliche that certainly applies repeating that forewarned is forearmed. You can bet the other side has already done their homework and sharpened their knives.
Agenda confusing. On Tuesday, are the Objectors expected to say anything? Answer any questions?
I think the meeting is mostly informational, but don’t know for sure whether any final decisions concerning the hearing track proposal will be made during the meeting.
I have been told that it is possible that parties may have to weigh in on the process that is being proposed, but don’t know for sure.
I would think that people should be able to ask questions concerning the hearing track process at the meeting.
Let’s jackup the objections. Delighted to discover your website. Thanks.
This comment from our friend Christopher is being posted on his behalf:
I am not a lawyer.
We need to keep in mind that though the Water Court is somewhat ‘ad hoc’ — something created especially for a particular occasion — it still must follow the Rules of Civil Procedure, providing each ‘party’ an equal structure by which to proceed.
> a. Phase 1 –Phase 1 will include a period for the Compacting Parties [presumably the trilogy of governments] to conduct discovery, as necessary, and file motions addressing objections.
Generally, each party is entitled to a ‘discovery’ process — an exchange of papers and/or witness lists. This us usually done outside the court. If the discovery is deemed to be deficient by either side, they may appeal to the judge. This process is also frequently done in the court, as it would appear would happen here.
An important aspect of this may be your witness list. If you do not have a witness list submitted in discovery, you will likely be severely restricted to bring an un-listed witness forward later on. For example, Judge Manley might be a witness (he ruled, or provided dicta that declared the Compact unconstitutional prima facie). But what he might say could be double-edged — a political wild card, though it appeared that he was trying to walk the righteous path.
An interesting aspect of this, is that one “objector” could call another “objector” as a witness (which, negatively, might subject the witness to cross examination). Another double edged sword. (See the note on the supposed “objector” status, that has been flipped by the court.)
Again, Austin Knudsen (the current AG) could be called as a witness, as he was the Speaker of the House during the passage of SB-262 (Compact). Recordings in the House at the time show that he made several procedural attempts to keep the House in order, and to guide it to a constitutional passage of the Compact (which he was somehow not able to do); and to explain as a witness whether he concluded that the Compact was legally ratified … by which it failed both procedurally and constitutionally. That mystery has never been fully explained.
Adjunctly, it is interesting to note that one of the Hallmarks of a Republican Form of Government, as opposed to, and distinctly different from a so-called democracy, is that it installs a higher regard for minority existence, in requiring a super-majority vote to institute impactful legislation. A democracy requires only one-vote above 50% to make slaves of the 49% remainder. That is decidedly what this Compact has done, making it a violation of both the US and the Montana constitutions, violating the requirement of a republican form of government; including a saddling up to slavery, via the 51% gateway to socialism.
Apparently in Phase 1, “… and file motions addressing objections.” I might be remiss here, but from where did any of those objections come … the mediation process? … which was supposed to be confidential, … or previous ‘Discovery’? Objections are usual filed in court processes. Have there been any court objections filed by “objectors”? … which seem to have been scheduled secondarily. Remember, ‘mediation’ are not court records. To give in Phase 1, any reference to what was conducted in mediation, would be a violation of the Rules of Civil Procedure.
There would seem to be a need for a Phase 2.5, as Phase 3 is worded with the presumption “… any issues not resolved by motions.” Of course we can presume that the court will dismiss summarily any objector motions, to (preemptively) clear the way for Phase 3. However that should not stop objectors to objecting with motions during the court process, if for no other reason than to qualify it in an appeal process. This would also apply to on-the-fly objections to violations of Rules of Civil Procedure. Yes, it might piss-off the judge(s), but one should consider, what the hell have you got to lose … you’ve already lost! Appeal is all you got left.
In end, a lawyer would better gauge if the court in the Phase line up is in keeping with the Rules of Civil (and equatable) Procedures. If deem not so, it should motioned as an objection.
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It may be presumptuous to assume that you (or your precedents in water use filings), originally, subsequently in the second filing in 1972 (and now again it this third filing) were the prima fascia (first) filer, whereby you were not the “objector”, many filings preceding even the date of the Hellgate Treaty. One might ask the court, as to why you are the “objector”. It seems that the court flipped the filing protocol (prima facie) in a presumption that the Compact was the originator, thus you the “objector.” Why? Of course it will be explained as in a side-winder rattle snake. But why not ask, for the record?
Additionally it would seem as a lay person, that the premise of the Water Court in deciding Federal Reserved Water Rights, should find the legal machinery necessary within the McCarron Amendment — which the Compact, and now the Water Court, have cavalierly dismissed, an abject embarrassment to any legal process. And another objection
The inherent bias in the Water Court’s agenda for the Objector hearings should not be surprising especially for those of us who fought this onerous Compact from its very begining. There was no fairness in the entire CSKT Compact process so I would not expect any changes now. I’m glad that the Sego/Slack attorneys are pointing out this fact to the Water Court.
It’s obvious that the Compacting Parties will try “every trick in the book” to dismiss these objections and I’m glad the Sego/Slack objectors have competent counsel to protect their interests which also can help all the other objectors as they proceed through the Water Court’s “process”.