© 2023 Concerned Citizens of Western Montana

NOTE:  We are not attorneys, and the information in this article is not intended to give legal advice to anyone.  As an objector to the Flathead Compact, only you can decide what pathway you must follow to protect your specific interests and rights.

At long last, we’ve finally finished work on the “how to” process for amending an objection to the Flathead Water Compact Decree.

When we committed to this project we had no idea just how difficult of a task it would be, and sincerely apologize for the amount of time it has taken. 

Below please find a link to a 14 minute video that provides an overview of objection requirements, reasons for amending, and suggestions for making sure your “complaint” covers all of the bases that you want to argue when you finally have your day in court.  It will also walk you through the process of completing a motion, and properly submitting it to the court and the compacting parties.

Copies of the forms referenced in the video can be found at the bottom of this article.

Adding to the difficulty is that there are no Amended Objection forms or procedures to be found,  and the Water Court would not answer questions because it would be considered “legal advice.” 

We diligently tried to find cases where amended objections were submitted to the court, but were unable to find any “real life examples” to show people.

We ultimately settled on the fact that an objection is a pleading that can be likened to a complaint in a lawsuit.  Typically when complaints are amended, such as what happened in the CSKT 2014 lawsuit, they replace the original filing.  (Note: the tribe’s first complaint in that lawsuit was submitted to the court on February 27, 2014).

We were unable to find information specific to the state of Montana, but found information about amended complaints from a U.S. District Court (U.S Courts web  page). stating the following: 

“An amended complaint does not just add to the first complaint. An amended complaint entirely replaces the original complaint. Therefore, an amended complaint must include those portions of the original complaint that are necessary, while adding the new material to be considered.”

This means that an Amended Complaint replaces the original, BUT it must include those portions of the original complaint that are necessary, while correcting, removing and revising, as well as adding the new material to be considered. 

We mention in the video that we have no idea if the process as detailed will be acceptable to the court, however we believe it is a good faith approach to provide the Water Court with a properly amended objection. 

If only we had known a year ago what we now know about the consent decree review process, and the standards used by the water court for federal reserved water rights compacts.   

Having reviewed numerous court documents pertaining to other compacts, we can now see how the process worked against objectors, particularly because of their failure to tackle fraud, overreaching, collusion,  or any concerns about fairness, reasonableness and adequacy, or lack thereof.  Once they failed the material injury test, they were toast, and the compact was golden.

In all fairness, while some of the other compacts seemed to stretch the limits of Winter’s Doctrine jurisprudence, for the most part the compact commission and parties stayed somewhat within the proper legal framework for a “federal reserved water rights settlement.” Therefore previous Indian compacts aren’t really a viable comparison to the overreach represented in the Flathead Compact.

The Flathead Compact negates and repudiates more than 100 years of Winter’s Doctrine and federal reserved water rights law.  It was supposed to quantify the CSKT federal reserved water rights that consist of a discrete amount of water necessary to fulfill the purposes of the Flathead Reservation.  Such rights would carry an 1855 priority date.   

Instead we are faced with a “settlement” that cedes to the United States / CSKT “TIME IMMEMORIAL” aboriginal water rights throughout western Montana both within and outside of their opened and diminished reservation.  If allowed to stand, every tribe throughout the western United States will seek ownership and control over the water  within their ceded “aboriginal” territories to the detriment of landowners throughout the west.  

We are fortunate that objectors to the Flathead Compact have a bit of time to benefit from those earlier objector mistakes.  If they so choose, each Flathead Compact objector that remains in the proceedings now has the benefit of a few weeks to develop and submit an amended objection to the water court for the purpose of strengthening and substantiating their arguments and evidence against the compact.

Thanks for your patience!

Additional Information

Compact Documents:

Forms:

Western Montana Water Rights Articles: