The Vagueness Doctrine

© 2023 Concerned Citizens of Western Montana

The meaning of a word usually depends on the context in which it occurs.

But what happens when words are codified into statutes, and the context pertaining to them is not sufficient to adequately interpret their meaning?

Statutes that lack sufficient definiteness or specificity are commonly held void for vagueness. Such legislation may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused. The Supreme Court has observed that: Men of common intelligence cannot be required to guess at the meaning of [an] enactment. In other situations, a statute may be unconstitutionally vague because the statute is worded in a standardless way that invites arbitrary enforcement. 

Source:  constitution.congress.gov

Per our discussion yesterday concerning Ex Post Facto law, the courts have also migrated the applicability of the Vagueness Doctrine to criminal law, however it is just as appropriate to apply it to civil laws such as the Flathead Compact and its Unitary Management provisions.

Even worse than the vagueness itself, is the void in the law that it creates, leaving room for the courts to fill the blanks with a poor decision upon which future conflicts will be decided.  A perfect example is:  Confederated Salish and Kootenai Tribes, Etc. v. Namen, 665 F.2d 951 (9th Cir. 1982).

The Compact and Unitary Mgt Ordinance are Unconstitutionally Vague

Why was the Unitary Management Board created in the first place?

In 2015, a simple majority of Montana legislators gave birth to the Flathead Compact and its “on reservation” water board also known as the Unitary Management Board (UMB).  Both are now memorialized in MCA 85-20-1901 and 1902.

And as Governor Greg likes to remind us, he is diligently implementing the compact ahead of any water court review, because its compact defined “effective date” was triggered by the Secretary of Interior approval on September 17, 2021.  See:  Putting the Compact Cart before Due Process

The Unitary Board is a creature of law that is seemingly unaccountable to any of the three government amigos, and to the best of our knowledge, has no constitutional sideboards or restrictions.  The current makeup of the board’s membership belies its intended purpose as a tribally controlled protector of the tribes’ water rights. 

This purpose of the board was introduced to the compact commission in the tribe’s 2001 proposal for negotiations that requested  “the negotiation process focus on the development of a Reservation-wide Tribal water administration ordinance which will apply the seniority system and protect the unique federal attributes of Indian reserved and aboriginal rights.” 

Thus by virtue of the “SENIOR” time immemorial water rights Montana awarded to the tribe in the compact, the board was established for the purpose of protecting and enforcing the tribes’ “Indian reserved and aboriginal water rights.”

The Compact confers EXCLUSIVE JURISDICTION upon the UMB to resolve all water use disputes within reservation boundaries

ARTICLE IV I. 1. of the compact confers “EXCLUSIVE JURISDICTION” upon the UMB as follows:

There is hereby established the Flathead Reservation Water Management Board.  Upon the Effective Date, the Board shall be the exclusive regulatory body on the Reservation for the issuance of Appropriation Rights and authorizations for Changes in Use of Appropriation Rights and Existing Uses, and for the administration and enforcement of all Appropriation Rights and Existing Uses. The Board shall also have exclusive jurisdiction to resolve any controversy over the meaning and interpretation of the Compact on the Reservation, and any controversy over the right to the use of water as between the Parties or between or among holders of Appropriation Rights and Existing Uses on the Reservation except as explicitly provided otherwise in Article IV.G.5. The jurisdiction of this Board does not extend to any water rights whose place of use is located outside the exterior boundaries of the Reservation.

On the other side of the jurisdictional coin, the Montana Water Court website says this: 

The 1979 Legislature created the Montana Water Court to expedite and facilitate the statewide adjudication of over 219,000 state law-based water rights and Indian and Federal reserved water rights claims. The Water Court has exclusive jurisdiction over the adjudication of water rights claims.

So just how Exclusive is EXCLUSIVE?

Notwithstanding the fact that the Flathead Compact confers “exclusive” jurisdiction on the Water Management Board within reservation boundaries, it patently fails to define the word “EXCLUSIVE” in any meaningful way.

We define the word “exclusive” to mean a “big E” kind of EXCLUSIVE, and liken it to this definition: 

“Pertaining to the subject alone, not including, admitting, or pertaining to any others. Sole. Shutting out; debarring from interference or participation; vested in one person or entity alone. Apart from all others, without the admission of others to participation.”

Considering the UMB is in full force and effect as defined by the compact, and the fact that Montanans are currently participating in a forced water court proceeding pertaining to its “partial judicial review” of the compact, we cannot help but wonder where the “jurisdictional” chips currently fall.

The Flathead Compact Decree proceeding was opened by the Water Court under the pretense that it would resolve all objections (disputes) pertaining to the water compact claims, and then enshrine the compact into perpetuity as a “judicially blessed” consent decree.

Water users were asked to present their disputes / objections to the Water Court for dismissal resolution.

We can’t help but wonder about the validity of the compact proceedings in light of the fact that the UMB has “exclusive jurisdiction to resolve any controversy over the meaning and interpretation of the Compact on the Reservation, and any controversy over the right to the use of water as between the Parties or between or among holders of Appropriation Rights and Existing Uses on the Reservation.”

In this context, the current water court proceeding could very well be considered a violation of the compact as it pertains to anyone living within reservation boundaries.  NOTE:  We suppose it would have drawn too much attention to the due process violations of the compact and UMB if the water court had opened objections only to those people living outside of reservation boundaries.

It also begs the question as to who will be the arbiter of existing water rights within reservation boundaries in any future state wide general stream adjudication of existing water rights within reservation boundaries.   

For the record, we are not convinced that there will ever be an adjudication of non-Indian water rights within reservation boundaries because the compact makes us users of the tribal water right.

Unfortunately for many, the existing uses of water within reservation boundaries have been made subject to the whims of an unaccountable Water Management Board, whose marching orders come from an equally unaccountable tribal government corporation.

“Any provision of Title 85, MCA, that is INCONSISTENT with the Law of Administration is not applicable within the Reservation“

CHAPTER 1, Part 1 of the Unitary Management Ordinance prohibits the state legislature from amending the compact legislation without the approval of the tribe (that’s not legal or constitutional).

2. This Ordinance and the parallel Tribal legislation are contingently effective; neither operates with the force and effect of law without the other. No modification by the Tribes or the State of Montana of these respective laws shall be effective within the exterior boundaries of the Reservation unless and until the other makes an analogous modification. No amendment of this Ordinance that may affect a use of the Tribal Water Right may be made without Secretarial approval.

It goes on to prohibit (within reservation boundaries) the application of any provisions of the Montana Water Use Act that are “inconsistent” with the Law of Administration. 

3. Upon the Effective Date of the Compact, this Ordinance shall govern all water rights, whether derived from tribal, state or federal law, and shall control all aspects of water use, including all permitting of new uses, changes of existing uses, enforcement of water right calls and all aspects of enforcement within the exterior boundaries of the Flathead Indian Reservation. Any provision of Title 85, MCA, that is inconsistent with this Law of Administration is not applicable within the Reservation.

All Roads lead to tribal UMB “due process” tyranny

It is notable that the compact doesn’t define the term “inconsistent” nor does it specify which provisions of the Montana Water Use Act are “inconsistent” with the UMB.  It simply PROHIBITS ALL INCONSISTENT PROVISIONS.

Again the undefined, nebulous, ambiguous vagueness in the compact and UMB pertaining to the term “inconsistent” invites  tyranny, just waiting to be unleashed upon an unsuspecting  public. 

Any provisions of the law that may apply to you today, may very well no longer apply tomorrow based upon any arbitrary and capricious decisions of a tribally controlled board. 

We also remind you that the compact confers immunity upon the board, bringing into question, who or what will be accountable when something goes wrong?

Because the UMB now has “exclusive jurisdiction to resolve any controversy over the meaning and interpretation of the Compact on the Reservation,” this tribally controlled “board” will determine at whim which provisions of the Montana Water Use Act are inconsistent with the Law of Administration and those that will remain in effect until they inconveniently interfere or conflict with the goals of the UMB.

Where then is the certainty and predictability with respect to the water rights and needs of people living with reservation boundaries? 

Let’s make it simple.  There will be no certainty and predictability except to the extent that irrigators may have signed a “consensual agreement with the tribe” to prevent a tribal call upon their “compact imposed” and diminished deliveries of water, or to the extent that a water user’s name is not on the tribe’s very real blacklist.  See:  Censorship by Consensual Agreement

Both the Flathead Compact and the Unitary Management Ordinance as are unconstitutionally vague and should be declared so and voided by the Water Court of the state of Montana.

It will be interesting to see if the Water Court reviews the language in the compact that seemingly could supersede its own “exclusive jurisdiction” over the adjudication of water rights within reservation boundaries.