Twenty Five Years: The Delegitimization of Montana’s Adjudication Process

© 2024 Concerned Citizens of Western Montana

In a Montana PBS story about Montana’s Water Rights Adjudication process that aired on January 11, 2024, Chief Water Court Judge Russell McElyea said

“Montana’s adjudication is the biggest in the United States. It may be the single biggest piece of combined litigation in this country. I don’t know.  There is no western state that has a more ambitious program for determination of its water rights than Montana.”

This story, beginning about 14 ½ minutes into the video linked above, also offers some discussion of the DNRC grappling with its flaws failures concerning the “accuracy and security of water” rights records. 

From our perspective, it is too bad the article doesn’t delve into the DNRC’s unabashed bias with respect to the Flathead Water Compact, the agency’s federalization via its “leadership,” or the fact that the compact carves out a jurisdictional no-mans land where Montana’s Water Use Act no longer applies over a portion of the state affecting at least 40,000 non-Indian state based water users owning private property within the boundaries of a reservation that was opened to settlement a century ago.

The Flathead Compact speaks for itself.  Unfortunately it is so complicated that most people, including legislators, have chosen not to delve into the details of the compact that they ratified nearly a decade ago.  

We’ve discussed at length its many problems, including the failure to provide even a simple quantification of the water rights awarded to the United States / CSKT in the compact.  Without  quantification it is not possible for the public to understand how the compact affects their personal water rights, yet the water court proceeding requires that they do just that.

But rather than focusing on the compacts failures, this article instead looks at how our state allowed such an unconscionable “settlement” to be brought forth to the legislature and the people of Montana.

Having followed the state’s “water rights” process for more than a decade, particularly its “unique” compacting solution to federal reserved water rights, we are convinced that Montana has allowed, and perhaps even participated in the delegitimization of its own state wide adjudication process.

Anyone being intellectually honest can’t help but see that it’s simply not possible for a process that is supposed to be fair, unbiased and comply with existing law could give birth to a “negotiated settlement” that fabricates new water rights that serve to UNDERMINE AND NEGATE STATE BASED WATER RIGHTS appurtenant to privately owned land in western Montana. 

The compact’s ex post facto contrivance of a new kind of water and property right is the reason why the state often told us we never had senior water rights in the first place.  We only thought we did. 

The water and control over it always belonged to the tribe.  The Compact says so.    

If we are to believe what the compact parties are trying to sell us, then we must let go of the old fashioned and hundreds of years old notion that we still have water rights that are appurtenant to our land. 

We are now expected to shift gears and buy into the compacting parties’ convoluted legal fiction that was used to artificially create property rights that do not exist in the law, and that via it’s “settlements” with the Indian Claims Commission and US Court of Claims, the tribe is legally precluded from going after. 

Instead, water compact magic legal fiction creates a scenario where the tribe has always owned all the water, meaning existing water users and settlers that came before us have illegally used the tribe’s water for more than a century. 

But not to worry.   In the compact,  the CSKT have magnanimously agreed to let us continue to use some of their water, but under the strict scrutiny of a tribally controlled water management board. 

If we accept the Flathead Compact, we are also accepting its ex post facto revision of history and the creation of new time immemorial rights to more water than exists in western Montana.  Acceptance of these premises effectively negates the very old and very valuable water rights of many people living in western Montana, and relegates people to the status of mere users of the tribe’s water, under their terms and conditions.

After extensive research related to the Flathead Water Compact, up to and including its unlawful and unconstitutional content and the fraudulent means used to achieve its ratification in the Montana legislature, we keep coming full circle to one question over and over again:

In light of all the overreach in the Flathead Water Compact after 30 years of “negotiation” and the 2015 filing of the United States 10,000 claims affecting 54 of Montana’s 85 hydrological basins, is it possible to receive a fair water rights adjudication in Montana? 

We assert that the compacting parties including the state of Montana, have made a shambles of Montana’s statewide adjudication water proceedings, compromising its ability to fairly adjudicate state-based water rights in an area covering approximately 2/3 of the state.

We also maintain that in Montana’s desire to give deference to and to accommodate the demands of the United States and CSKT, the compact commission, state officials, and yes, even the courts have allowed the state adjudication process to be delegitimized to the point that it may not be possible for the state to recover.

The Best Laid Plans……

A water right adjudication is supposed to be a legal process to resolve conflict and competition on a  water source. Adjudication legally determines whether each water right on a source is legal, how much water can be used, and its priority during shortages. 

After the ratification of Montana’s 1972 constitution, the state earnestly began to develop, authorize and execute a process for adjudicating both state and federal reserved water rights throughout the entire state. Understanding that nearly 100 years of poor recordkeeping dating back to the Montana Territory and questionable claims under a deficiency of water rights record keeping, Montana knew that a difficult road was in front of them.

Between 1973 and 1979 the Montana legislature created a McCarran Amendment compliant adjudication process for both state based and federal reserved water rights.

In 1979, the legislature created the water court to adjudicate all of the pre-1973 water rights that were affirmed by the Montana Constitution for the purpose of shoring up and addressing the validity of each of those claims.   The legislature also authorized the Montana Reserved Water Rights Compact Commission for the purpose of quantifying and settling with finality, the unknown volumes of federal reserved water rights throughout the state. 

Via the adjudication process, Montana’s goals were also to protect its water resources from down-stream out of state interests as much as possible, and to determine what if any water was available for new uses. 

From the Beginning……

Looking at a timeline of Montana’s water rights adjudication process it is obvious that from the very beginning of the state’s effort to sort out and to inventory its valuable water resources and uses,  the United States and the CSKT were intent on preventing the state from properly adjudicating federal reserved water rights.  Now looking at the compact result, we can also say with confidence that their goal was also to ensure that state based water rights could also not be properly adjudicated.

Over the years Montana’s process was attacked by the United States / CSKT from a number of fronts.

Here are just a few of many, many examples:

• Between 1973-1979, the United States filed several pre-emptive lawsuits against the state for the purpose of adjudicating its federal reserved water rights in what was considered to be “friendlier” federal courts.
• In 1981 the CSKT filed a lawsuit against the state of Montana to enjoin the state from adjudicating their federal reserved water rights.
• In 1984-1985, the United States / CSKT filed blanket objections to every water right in every basin in western Montana. These objections remain within the preliminary decrees for each of these basins to this day.
• In the 1990’s, the CSKT filed a series of lawsuits (Ciotti) against the DNRC to prevent them from issuing water use permits within the boundaries of the Flathead Reservation. In 1996 the Montana Supreme Court ruled that the DNRC could not issue water use permits until the tribes federal reserved water rights were quantified.  
• In 2001, the CSKT began efforts to move “negotiations” for the compact forward by submitting a framework for negotiations that is essentially a mirror image of the water compact that the water court is reviewing today. Non-negotiable terms included 1) US / CSKT ownership of all the water within reservation boundaries, 2) a reservation wide unitary administration entity controlled by the tribe, for the purpose of protecting the tribe’s “unique” water rights and 3) Off reservation and time immemorial water rights.
• 2006-2009 John Tubbs was the DNRC Water Resources Division Manager.
• 2009-2013 John Tubbs was the deputy assistant secretary for water and science at the U.S. Department of the Interior
• 2013-2021 John Tubbs was the director of the DNRC. 
• After the compact failed in the 2013 legislature, the CSKT filed a law suit against the United States, Montana and others in 2014, seeking a declaration by the court that 1) the CSKT own all of the water within reservation boundaries, 2) the Flathead Irrigation Project is a tribal project and 3) that when the reservation was opened to settlement, none of the reservation lands ever went into the public domain. While a defendant in the lawsuit, the United Statas made it known that they were contemplating joining the tribes and becoming a plaintiff instead.  It is notable that the state continued negotiations, and approved the compact in the legislature while this lawsuit was active and hanging over their heads as a coercive threat. 
• In 2014 the CSKT hired Mercury LLC to create a grassroots organization to give the appearance of grassroots support for the compact.
• In 2014 the CSKT funded an effort by a seated compact commission member and a few other legislators to change house rules to garner ratification of the compact in the 2015 legislature.
• In 2015 the United States / CSKT filed more than 10,000 claims affecting 51 of the 85 water basins covering about 2/3 of the state of Montana. These claims have never been entered into any public database. Since the filing of those claims, Montana has moved numerous adjudications forward with water users completely unaware of the existence of these claims.
• From 2015-2024, the Montana Water Court has allowed an adjudicative stay on basins 76L and 76LJ preventing the approval of 30 years of new water use permits within reservation boundaries, and allowing compact implementation to take place before any adjudication of state based water rights in those basins. 
• From 2015-2024, and notwithstanding the fact that the US / CSKT 10,000 claims affect 51 water basins, the Montana Water Court questionably placed a stay on any review of these claims by placing them under the umbrella of the adjudicative stay in Basins 76L and 76LJ.  This stay prevents the the water users in many of the affected basins from having knowledge of these claims as they go through their water rights adjudication proceedings.
• In March 2022 Compacting Parties ask the water court to open the Flathead Compact decree as a special proceeding: “Under federal law, the Tribes have water rights both on their Reservation and to support off-reservation treaty-recognized natural resource use sites in western Montana. Because these tribal water rights don’t fit neatly into the basin specific approach that the Water Court typically uses, such UNIQUE types of rights and a multi-basin geographic scope are beyond the typical state law water right claimant. Therefore, opening a special case to address this unique situation is entirely appropriate.” This approach ensures that the compact grievances will not be resolved on the merits.
• In 2022, a state attorney uses the 10,000 claims to threaten explain to the Water Court the consequences of reopening all 51 affected basins to resolve these unlawful claims if the Flathead Compact is not approved.

Montana Caves Under Pressure

Since the early 1970’s, the U.S. / CSKT have worked to influence, sabotage and undermine  Montana’s statewide adjudication process. 

It took approximately 25 years for the state to capitulate to the US / CSKT. 

By 2004 the state was fully on board with the tribe’s 2001 proposal, and the Compact Commission hired tribal advocate attorney Jay Weiner to develop the compact and the legal legs needed to rationalize the state’s capitulation. 

The state also took steps to control the public narrative so as to hide the compact overreach, by threatening the public with decades of litigation and telling them that the tribe had given up far more than it would have gotten if it had litigated their claims.

On its face, this is laughable.  How much more could the U.S. / CSKT possibly get than what the compact and the Daines legislatiion already gave them?

Montana crossed the rubicon in 2004 when it began to actively participate in the fraud, collusion and overreach that brought us the CSKT Compact.

Mr. Water Court Judge:  How Exclusive is “Exclusive”?

Adding insult to the compact injury and the methods used by the compact parties and a handful of legislators to achieve its questionable “ratification,” the most egregious aspect of the compact is Montana’s cession of its constitutionally mandated jurisdiction over water in the compact. via its Grand Bargain.

So in a post compact world, who or what has the legal authority to do such an adjudication?

CSKT Compact MCA 85-20-1901: 

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.

Unitary Management and Administration Ordinance:  MCA 85-20-1902:

Section 1-1-101.3. of the Unitary Management Ordinance codified into Montana law says this: 

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.

So who has exclusive jurisdiction over disputes over water within reservation boundaries, the water court or the tribally controlled water management board? 

Which “jurisdiction” will apply for any disputes that butt up against the US / CSKT overreaching claims?  A tribally controlled board, the Water Court or federal court?

Who or what will “adjudicate” the water rights in basins 76L and 76LJ that have been negated by the compact when the water court stay is lifted at long last?

How is it possible that any adjudication can take place in any of the 51 water basins in western Montana affected by the 10,000 claims and the water compact? 

After all of this and even more, we do not see a pathway forward that can give Montanans the confidence they need that they will receive a fair and unbiased adjudication of their water rights.

Montanan’s living within reservation boundaries no longer know which provisions of the Montana Water Use Act apply to them, and which provisions don’t.

The statutes don’t clarify it and the state has not even bothered to tell us.  Perhaps it has failed to do so because it does not want the general public to see the Flathead Compact Proceeding itself for the legal sham that the compact made of it.

But it is also reasonable to think that the reach of the Unitary Management Board monster they created may also have jurisdiction over disputes between the tribe and water users in an area covering approximately 2/3 of the state.

Montana has no one to blame but itself.

It’s time to dump the compact, hold those who gave us the compact accountable, and send the United States and CSKT into the state-wide adjudication with everyone else so their claims can be resolved once and for all.