© 2023 Concerned Citizens of Western Montana

Note: For the record we would like to note that we are not attorneys and the information in this article is not meant to provide anyone with legal advice.  As an objector, only you can decide what is right pathway to protect your specific interests and needs.

Apologies for having gone dark over the past few weeks. 

We know that a December 8th deadline doesn’t give you much time to file an amended objection, but we respectfully ask objectors to not rush into submitting an amended objection to the Water Court without considering the information we will be providing to you over the next few days. We not only will be addressing the key principles you should consider prior to making such a decision, but also if you do decide to amend we will provide a Motion to Amend an Objection template and instructions necessary for filing a motion.

We’ve been busy trying to absorb the Water Court’s schedule for the Flathead Compact proceedings issued on October 18th in Case Management Order #3.  While many questions remain concerning the schedule, this order of the Court brings the issue of objection amendments up front and center. 

This is the first in a series of informational articles that we hope will assist objectors navigate this part of the process over the next six months or so.  

We also want to express to objectors this is also the time that you should be thinking ahead concerning what your strategy will be for the hearing.  If you aren’t thinking of it now, it could hurt your effort, because it is your objection from which your arguments will be based.  

We also want to point out that there’s no need to present Perry Mason type documents to the court, however there are basic requirements that must be met in order to prevent your objection from being dismissed. 

This article discusses those basic requirements, and attempts to give you information that goes beyond those basic needs by including other concerns and issues that may not otherwise be addressed by the court, unless they are brought up in the objections.

Compacting Parties Motion to Dismiss

First up in the hearing track of the Flathead Compact proceedings will most likely be a motion by the compacting parties to dismiss as many Objectors as possible. This was the standard protocol for other compacts, and David Harder, the attorney representing the United States during the 10/03/23 Water Court zoom conference confirmed this strategy.

If your original objection does not fulfill the basic criteria that we’ve noted below, it is highly probable that it will be dismissed by the water court unless you amend it.

The information that follows is intended to help you determine whether you should amend your objection to avoid such a dismissal by the Water Court.   

Minimum or Basic Objection Requirements

Think of your objection as the foundational document for the arguments that you would like to make to the Water Court in opposition to the compact. Your objection should include reference to each issue that you want to argue to the court during the hearing phase of the proceedings.  Any issues you may have that are not included in your objection will not be considered by the water court, and will not be able to be brought forward in the process.

The objection form is not where you argue your case against the compact, or provide your evidence.  It simply gives you the opportunity to list your grievances with the compact, and  to citing specific information requested by the court.  

Keep in mind that during the hearing, you will have to logically and factually prove to the court the validity of any allegations and assertions made in your objection. 

According to Montana statute, previous compact rulings, and the rules that objectors have been asked by the water court to be cognizant of, the basic requirements for an objection appear to include:

Requirement 1:  Proof of standing to object – Objectors must provide information to show their ownership, leasehold, economic, or other interest in an existing water right, permit, certificate, state water reservation (municipal), or right to receive water through an irrigation project. Your objection should include reference to:

    • Your Water Right Numbers from the DNRC database.
    • Your water-use permit numbers for wells and / or other water uses
    • In the instance of water rights permits applied for within reservation boundaries after 1996, that have not been approved by the State, you could add copies of your filed water permit applications, or note that they are suspended and provide a brief explanation of the details of  those specific water uses.
    • For other water uses or interests, you could include a brief statement detailing your well, municipal water needs, irrigation project. or leasehold uses of water.   

Requirement 2:  Proof that your water rights are harmed by the compact – Objectors must establish that the Compact will result in material injury to their claimed rights by clearly stating the specific grounds and evidence on which objections are based. 

In previous compact opinions, the Water Court has said that if objectors are unable to establish that the Compact will result in material injury to their claimed rights, the Court should apply a “fundamentally fair, adequate, and reasonable and conforms to applicable law” test. 

It’s not necessary to argue or prove material damages in your objection. You only need cite how you believe the compact will cause harm to your rights as well as citing the specific grounds and evidence that substantiate each claim.

A property or other right is an interest protected by the constitution and the law.  Our state and federal governments have a duty to protect these rights. When they violate that duty, it gives rise to a cause of action, and the right to claim damage.  Property rights do not exclusively pertain to real or personal property, they also pertain to your constitutionally secured rights and due process protections.

Because this is one of the most important components of an objectors case, we will soon post an article dedicated to Material Injury.  

It’s not enough to go into Court and say you have material damages. For the hearing, Objectors will have the “burden of proof,” and must show the Court how they are materially injured by the compact. 

Requirement 3:  Issues of Material Fact –  Objectors must also specify the paragraphs and pages in the Flathead Compact decree that contain the findings and conclusions that they object to.

Objectors should understand that if they don’t dispute issues of fact in their objection, they are giving the compacting parties the ability to say that there are no disputed issues of material fact and to Motion the Court for a ruling on the compact’s fairness, reasonableness and adequacy.

If Objectors are able to prove to the court that there are GENUINE ISSUES OF MATERIAL FACT pertaining to the Flathead Compact, it will preclude (stop) the court from ruling the compact is fair, reasonable and adequate.  A genuine issue of material fact is a disagreement between opposing parties on facts legally relevant to a claim.  The disagreement must be “genuine” and plausible.

This means it’s important to include disputed facts in your objection so they can be brought up later in the proceedings.  Here are few general examples of what could be deemed to be disputed facts:

  • As a means to negate the United States’ reservation of, and federal purpose of the Flathead Reservation, the compact wrongfully claims that the CSKT reserved the reservation.  This claim is then used to redefine and expand the purpose of the Reservation to create “time immemorial tribal reserved water rights” within and outside of reservation boundaries.
  • The compact does not quantify the tribe’s federal reserved water rights.
  • The compact violates applicable laws and constitution (cite specific violations).
  • The compact is not a federal reserved water rights settlement within the context of the Winters Doctrine, existing law that precludes the claims and components of the compact, and the existing legal framework for resolving federal reserved water rights including the McCarran Amendment.
  • The compact is the product of fraud or collusion or overreach.
  • The compact is not fair, reasonable or in the public interest, and will materially injure objectors property and property rights. 
  • The compact is not a final resolution or settlement of the tribes claims.
  • The compact does not protect existing uses or Historic Farm Deliveries to Flathead Indian Irrigation Project irrigators.

It’s not enough to just declare your issue, you must cite the provisions within the compact, and reference the legal statutes, constitutional provisions that back up your claim.

If you decide to present objections based upon material facts,  you must do your homework on these issues and be prepared to substantiate them with evidence in the hearing.

Requirement 4:  Objections you might have pertaining to specific water rights in the compact:

If you are objecting to Specific Water Rights in the Compact you must identify the water right number, the decree page number, and the water source.

You are not obligated to object to specific water rights in the compact, however it may be helpful for you to do so if they encroach upon your specific water rights, or if you are disputing them because of a material fact within them that you object to.  

For example, some objectors have cited the Flathead Lake Claim 76LJ 30052867 to show overreaching with respect to its priority date and volume of water, and also unconstitutional vagueness with respect to its quantification, areas affected, administration and enforcement.  

Requirement 5:  Legal and Constitutional Objections:

Objections to the compact can also consist of legal issues based upon violations of applicable law, and / or the U.S. and state of Montana Constitutions.

If you want to argue legal and constitutional violations at the water court hearings, they must be cited in your objection.  Specify the Flathead Compact decree paragraphs and pages you object to and be sure to cite the law or constitutional provisions that support your objection.

Simply put, the water court cannot approve a consent decree or any other agreement if proof exists that it that violates the laws or the Constitution.

Additionally the court’s review of Fraud or Collusion or Overreach, and the issue of the water court’s presumption of  fairness, adequacy and reasonableness of the compact should be addressed in your objection.

An opposing argument to Fair and Reasonable is that the compact is unconscionable.  Unconscionable agreements have terms that are extremely one-sided and fundamentally unfair, and are unenforceable by law (void). Unconscionable settlement terms could include such things as vague and open-ended provisions that give one party unilateral discretion to set or change terms or terms that appear unfair or terms that are incomprehensible.

Additional constitutional objections might be centered around:

  • Violations of due process and equal protection under the law as they pertain to the Unitary Management Provisions of the compact, 
  • The Reservation Unitary Management Board violates the constitutional guarantee of a republican form of government.
  • Unconstitutional vagueness making it impossible to interpret or understand the law or its administration, as has been discussed numerous time on this blog.

While all of this may seem to be a very tall order, we ask objectors to consider each objection carefully, and choose only those that you are confident that you will be able to prove later on in the hearing. 

Your objections should not be argued in your objection document.  

You are only required to cite the compact provisions you object to,  the grounds for the objection, and reference / cite evidence that validates your objection.   

Specific evidence and other information such as affidavits and other documents will be necessary for the hearing. 

At this time, there is no need to share more information with the compacting parties than is absolutely necessary per the basic requirements for an objection.

Back to the Beginning: Should you Amend Your Objection?

We repeat that we know that a December 8th deadline doesn’t give you much time, but we respectfully ask objectors to not rush into an amendment of your objection without considering the information we will be providing to you over the next few days.

If after reading this article you believe that your original objection may be deficient, or you see the need to fix an obvious fault in your objection, or desire to add issues not addressed in your objection, you may want to consider amending  your objection.  

Stay tuned for more information pertaining to this issue.