© 2024 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.

This post is just a reminder that the schedule designated by the Water Court in Case Management Order # 3 shows the following upcoming events:

Motions to dismiss objections.

Motion deadline: April 3, 2024
Answer briefs: May 17, 2024
Reply briefs: May 31, 2024

Motions regarding Compact adequacy and fairness, and any other issues of law.

Motion deadline: July 10, 2024
Answer briefs: August 23, 2024
Reply briefs: September 6, 2024
Oral argument: September 19, 2024

Motions to Dismiss Objections

Keep in mind that the compacting or settling parties as they sometimes call themselves, have 17 other federal reserved water rights compacts under their belts. 

The three government amigos have been through the drill many times and have honed their skills at picking off objectors. 

We are certain that the compact parties thought the CSKT compact would be just as easy as all of the others, however the thousand plus objectors to the compact showed them otherwise. 

Adding to that, the amigos cannot be happy that so many objectors still remain in the fight against the compact.  As of the writing of this article, we estimate that 614 objectors remain in the proceedings based upon the latest service lists issued by the court:  452 pro se, and 162 represented by attorneys.

The goal of the three government amigos will focus on removing as many objectors as possible from the proceedings before the court gets to its deadline pertaining to motions on fairness and adequacy and other legal issues.

While the compact parties could change their tactics from previous compacts, it is more likely than not that they will pretty much stick with what has been successful for them in the past. 

This means they will most likely use procedural errors and  technicalities within the objections.  

For your reference, here are some highlights of the arguments made by the compacting parties pertaining to the dismissal of objectors in the Crow and the Fort Peck Compacts:

  • None of the Objectors have shown that they have water rights or other cognizable legal interests that are harmed or adversely affected by the compact.
  • Objector Does Not Have A Water Right and has otherwise failed to show what Cognizable Legal Interest he seeks to vindicate.
  • Remaining Objectors have not shown how their ownership interests in water are affected by the compact.
  • The threshold “good cause” standard in Mont. Code Ann. § 85-2-233 and the requirement that objectors specify how they have been affected and the evidence in support of that allegation is an integral part of the general adjudication process and essential to the efficient disposition of claims
  • The drafters of Mont. Code Ann. § 85-3-233 sought to avoid clogging the adjudication process up with extensive pretrial motion and discovery practice by requiring all objectors to specify, up front, certain basic aspects of their objection. Objectors have failed to meet these basic requirements, and for that reason their objections should be dismissed.
  • Objectors do not meet the material injury standard required for heightened scrutiny of the compact.
  • The Objectors’ challenge to the material injury standard is incorrect as a matter of law
  • The Objector’s Arguments for “Good Cause” are irrelevant and meritless
  • The settling parties are entitled to summary judgment dismissing the objections.
  • Standard of Review for Summary Judgment is appropriate ”if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Mont. R. Civ. P. 56(c)(3)
  • Objections Have No Legal Basis and Must Be Denied as a Matter of Law
  • The Compact does not inherently deprive objector of water or water rights, and objectors fail to allege or show injury
  • The Objectors in this case have failed to prove by more than mere speculation that any genuine issues of material fact remain for the Montana Water Court to decide.
  • These Proceedings and the Pre-Ratification Proceedings provide due process
  • Nothing in the compacting process violates the Montana Constitution’s protection of existing water rights

Unfortunately for the compacting parties, in previous compacts the focus was mostly on material injury, although the objectors did try to bring up some legal and constitutional issues such as due process.  But in the instance of the Flathead Compact, many of the active objections have also brought forth issues pertaining to fraud, collusion and overreach, as well as legal and constitutional issues and serious process concerns.  

This means there is a big unknown as to what the compacting parties’ arguments will be pertaining to those objections. 

What Happens after the Motion to Dismiss Objectors?

It depends.

Objectors that are not targeted in the motion to dismiss need not do anything.

The Uniform District Court Rules – Rule 2 pertains to Motions.  It says this about failure to file briefs and answer briefs: 

(c) Failure to File Briefs. Failure to file briefs may subject the motion to summary ruling. The moving party’s failure to file a brief shall be deemed an admission that the motion is without merit. Failure to file an answer brief by the opposing party within the time allowed shall be deemed an admission that the motion is well taken. Reply briefs by movant are optional, and failure to file will not subject a motion to summary ruling.

This means that any objector specifically targeted in the motion to dismiss will have approximately six weeks (May 17, 2024) to respond to the Compact Parties motion, and the response will depend upon the specific issues mentioned  that pertain to your objection.  

From the Blackfeet Compact Water Court Documents we see this:  

Objector Kenneth R. Pape did not respond to the Compacting Parties’ summary judgment motion seeking dismissal of his objection to the Compact. Mr. Pape’s failure to file an answer brief is “an admission that the motion is well taken.” Mont. U. Dist. Ct. R. 2(c). 

If you do not file an answer brief to the motion to dismiss, the court will likely assume you have no objection to the motion or cannot come up with a valid argument and the motion to dismiss will likely be granted. 

Stay tuned for more information on this blog after the motions to dismiss have been submitted to the Water Court by the Compacting Parties.   Once objectors know what arguments have been made against their objection, they can begin the process of preparing their response to the compact parties’ Motion to Dismiss.