Is Montana Hopelessly Compromised?

© 2020 Concerned Citizens of Western Montana

It isn’t often in this fierce battle for water and property rights in western Montana, that we get small glimpses of the truth from the government parties about what the Flathead water rights settlement was supposed to be, to contrast with what they’ve allowed it to become.

In our last post, we pointed out that at a Congressional hearing held in Ronan in 1979, the Vice Chair of the CSKT said this in a public statement about the US v Abell et al lawsuit:

“I would like to set the record straight.  The Confederated Salish and Kootenai Tribes Council has never claimed water or water rights outside of the border of the reservation”.

As late as 2008, John Tubbs, current Director of Montana’s DNRC instructed the compact commission that “reserved rights should be within reservation boundaries“.

So why then does the Daines / CSKT Compact include time immemorial, off reservation water rights to vast amounts of water?

How can anyone in Montana, or anywhere else for that matter, have certainty with respect to their land patents or property rights if the ball keeps moving toward federal government overreach and away from the rule of law?

That made us wonder what Montana was saying in 1979 when these lawsuits were filed.  We thought that perhaps officials would have done their best to assuage the anger and fear of the 4,600 or so defendants in the United States federal reserved water rights lawsuits.  We found very few references to the state’s response:

1979 04 13  News Release, Governor Thomas L. Judge

1979 04 19  Flathead Courier – Efforts Continue to Negotiate Settlement

1979 04 20  Governor Judge letter to defendants in United States lawsuits

The state, fearful of this litigation and the threat of more, touted its negotiation strategy as the best solution for everyone.  Defendants, some of which may not even have a water right to defend, were told to lawyer up.  And Montana sang its  “Compact Commission Negotiation Lullaby” to citizens who wanted to believe that the state had a system in place to protect their water rights.

The Commission, created in 1979 as part of the general stream adjudication process, is authorized to negotiate with Native American tribes and federal agencies that claim federally reserved water rights within Montana. The water rights claims of the federal entities are suspended from adjudication while they are under negotiation with the Commission. Through statute, the Commission is authorized to: . . . proceed . . . with an effort to conclude compacts for the equitable division and apportionment of waters between the state and its people and the several Indian tribes claiming reserved water rights within the state. . .   Source:  1988 Final Water Policy Committee report to the MT legislature

While the commission may have been nice in theory, the Daines Compact they “negotiated” is far from the “equitable division and apportionment of waters” the state had initially envisioned.

Testimony from the 1979 Montana Water Right field hearings shows that federal officials had worked diligently to get the Montana legislature to remove Indian Water Rights from inclusion under the umbrella of Senate Bill 76 that passed earlier in the year.  That bill created the Montana Water court and the “politically appointed” Montana Reserved Water Rights Compact Commission.

In his testimony to the committee on July 30, 1979, Solicitor Leo Krulitz arrogantly stated:

The issues involved in Indian water and property disputes are federal
in nature and are within the unique expertise of federal courts. Many Indian issues, particularly water rights, generate considerable controversy and emotion. Federal judges, appointed for life, are more able to act in an objective, dispassionate manner than can be popularly elected state judges.

When their efforts to influence the legislature failed, the United States followed through with its threatened lawsuits against Montana and approximately 4,600 other defendants across the state.

We argue that federal officials did not act in good faith, because they were aware of the 1978 U.S. Supreme Court ruling in U.S. v New Mexico that strictly limited federal reserved water rights to the primary purposes of the reservation.

In the aftermath this decision, federal officials began to lobby for negotiations to settle federal reserved water rights.  After all, when backed up with the threat of litigation, this avenue could more easily result in coercive, expansive outcomes without ever going through the courts or state adjudication processes.

Better yet, the claims in a negotiated settlement, no matter how unreasonable or overreaching, could literally move through the system without ever having been examined.  We hope Senator Daines can appreciate this little nuance with respect to the claims he proposes to award in his compact.

With its negotiation and fear of litigation strategy, the feds struck BLUE GOLD in Montana.  By filing all of those lawsuits back in 1979, they successfully introduced the fear of aggressive and expensive federal litigation into the hearts and minds of Montana officials and citizens.

We believe the 1979 litigation, and Montana’s weak in the knees response to it, compromised the whole negotiation process from the very beginning, up to and including the Daines Compact.

In 2015 Chas Vincent conveyed the same weak response at the Senate Hearing for his water compact bill SB262:

“if you have Walton Rights  …  go adjudicate ‘em.   …… But why drag everybody else from the Idaho border to Townsend into court with ya? 

What the Senator from Libby failed to understand was that the compact process ensures that Montanans holding these valuable water rights cannot compete with the time immemorial water rights awarded to the United States / CSKT in his legislation.

It’s no wonder why the 10,000 claims were filed after the water compact was questionably ratified in the Montana legislature. Not only did the fear of litigation created by these claims divide Montanans against one another, it also served as an “insurance policy” to make sure the overreaching Daines Compact and SB262 would have a better chance of getting across the congressional finish line.  And at the risk of being redundant, without any of these unlawful, overreaching claims ever being scrutinized for legality, reasonableness, or their environmental and economic impacts.

These artificially contrived claims to eastern Montana water through a dingy, illegal and yellowed “color of law” concept, and Montana’s no response, response to them, guarantees future federal and tribal government encroachment over state resources, as well as the private water and property rights of Montanans.

Montana has also acted in bad faith, ever since it made the decision to give in to every one of the tribe’s unreasonable demands.  State officials and a corrupted Compact Commission could have taken the same path as Idaho, opting to protect the water rights of its citizens, but chose instead to place its thumb on the scales of the federal government and CSKT insisting that the compact was far better than decades of litigation.

Remember also that the Compact Commission hired a known tribal advocate, Jay Weiner,  to work for the state of Montana in representing the Tribes, not Montana.  He is now the chief legal counsel to the Klamath Tribe, while still working “for” the state of Montana.

Chris Tweeten, Jay Weiner 2013

In 2015, Attorney General Fox told a legislator that he was aware of constitutional problems with the compact, but it’s expensive to sue, so he wasn’t worried about litigation from Montanan’s impacted by it.  In other words, he was only worried about litigation from the federal government and the tribes.   If this isn’t corrupt and cynical, we don’t know what is.

When you have an attorney general who supports the Daines’ compact and tells the non Indians living within the exterior boundaries of a diminished Indian reservation that they should have known their rights are diminished, how can anyone ever expect to get a fair shake from the state of Montana?

Here, it is doubtful that non-Tribal water users on the Reservation are similarly situated with non-Tribal water users in the rest of the state. Property on the Reservation is subject to special rules derived from the unique federal status of the Tribes. Non-Tribal citizens moving to the Reservation should know that when they live within the boundaries of the Reservation, they might be subject to different rules that may not otherwise apply if they lived off the Reservation, especially on issues surrounding water use.

We can’t help but wonder if this TIM FOX STANDARD will also be applied to the people whose water rights intersect with the US/CSKT claims covering 2/3 of the state of Montana, which arguably is the new ex post facto Flathead Indian Reservation?

So, is Montana hopelessly compromised?  You bet it is.

Note:  An ex post facto law (corrupted from Latin: ex postfacto, lit. ‘out of the aftermath’) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.

The CSKT Compact in a Nutshell

©2019 Montana Land and Water Alliance

The 1,500 page CSKT Compact was designed to disguise the truly significant issues that were at stake that should have been researched and addressed by the Compact Commission, presented to the legislature, and described to the public.  Instead, the public got the 3-page set of bullet points that focused on minor little details and cute assurances that masked the true extent of the overreach, harm, and precedent-setting nature of the CSKT Compact.

The Federal Review of the CSKT Compact/S.3013

Now that the 2015 CSKT Compact is out of Montana, and added to by Senator Jon Tester as the 2016 S. 3013 at the federal level, according to the 2015  directive from the House Committee on Natural Resources, the Departments of the Interior and Justice and the Office of Management and Budget (OMB) must complete their review of any Indian water settlement, which includes the CSKT Compact/S. 3013, before it can come before committee. While in theory this review would have presumably caught the glaring problems with the CSKT Compact and resolved them, we learned that the Departments were just going to accept the CSKT Compact as is, with no critical review.

The Interior/DOJ review has been underway for a while and we understand was near completion.  Working with our legislative team on the People’s Compact,  which we believe resolves the problems with the CSKT Compact, we were able to secure an opportunity to send our concerns to and have a discussion with the Interior Department’s Secretary’s Indian Water Rights Office about their review. This was to ensure that the United States was aware of the concerns of Montana citizens that were not represented by the State of Montana in the so-called “negotiations”.

The Letter

The letter we sent to the Department of the Interior is our “CSKT Compact in a Nutshell”, and you will see boils down to issues you probably never heard of because the State did not tell you what the CSKT Compact was really about or the actual legal constraints that should have prevented the CSKT Compact from developing in this form.

You will note that this is not a “nutshell”.  But it is as close to succinctly describing the fundamental problems with the CSKT Compact as it can be, and it does not describe it all!  So while it might take you a few days over several glasses of your favorite beverage, we think you will see that the CSKT Compact is even worse than you already know!

Was the state of Montana nuts?

December 17, 2018

                    , Esq.

Director, Secretary’s Indian Water Rights Office

U.S. Department of the Interior

1849 C Street NW

Washington, D.C.  20240

                         VIA ELECTRONIC TRANSMISSION

Dear Director:

We understand that the Department of the Interior,  the Justice Department and Office of Management and Budget are currently undertaking a review of the United States’ liability with respect to the proposed Confederated Salish and Kootenai Tribes (CSKT)-Montana water compact, and Senator Tester’s S. 3013 (2016) which incorporates that compact into a larger bill.  In support of that review, we are writing to provide new information that you may not be aware of to assist the Departments’ analysis and to ensure that all the aspects of the United States’ potential liability are fully addressed.

The context for submitting this additional information arises from the specific historical and legal circumstances of the Flathead Indian Reservation and from the provisions of the CSKT Compact itself. We believe that these circumstances will necessitate the evaluation of the United States’ liability beyond its potential liability to the CSKT and consideration of the impacts of the precedent-setting provisions of the CSKT Compact on Montana and the western states. In the pages that follow, we describe just a few of the key issues in the CSKT Compact and why we believe that the U.S. liability to the non-Indian settlers and off-reservation residents could be even greater than the $2.3 billion dollar price tag associated with Senator Tester’s S. 3013.

Liability to Non-Indian Project Water Users in the Flathead Irrigation Project

Pursuant to Article VI of the Treaty of Hellgate, the Flathead Indian Reservation was opened for settlement in 1909.  In anticipation of settlement, in 1908 the United States constructed an irrigation and power project that is statutorily obligated to serve all residents of the reservation.[1]  To meet this objective, the United States reserved or appropriated under state law 2.6 million acre feet of water to serve the integrated water and power project.  The United States holds the project water right by contract with the irrigators in the project who own 90% of the lands now served by the project.  Further, the 1908 Act created a statutory obligation to turn the management and operation of the project over to the landowners served by the project upon the completion of repayment of the construction costs to the United States (35 Stat. at 450).  The costs were completely repaid in 2004.

Under the terms of the CSKT Compact, the contract between the United States and irrigators is nullified because the bare legal title to 100% of the water is turned over to the Tribes[2], 90% of which is intended to be changed from irrigation use to instream flow. Under the terms of the CSKT Compact, it is estimated that historic irrigation water deliveries could be reduced by 40%-70%.[3] Moreover, federal management of the federal irrigation project is turned over to a committee consisting of the state and Tribes with minimal representation of the United States or the irrigators who paid for the project.[4]  Under Senator Tester’s bill, the federal infrastructure of the Flathead Irrigation and Power Project (FIPP) is also given to the CSKT[5].  We believe this constitutes a Fifth Amendment taking without compensation, for which the United States would be liable.

The Winters Doctrine, the McCarran Amendment, and Off-Reservation Water Rights

We assert that the provisions in and water claims of the CSKT Compact are outside the legally permitted scope of the Winters Doctrine and the McCarran Amendment and therefore the CSKT Compact is not a federal reserved water rights settlement[6]. As a threshold issue, the State of Montana failed to quantify the federal reserved water rights of the tribes and instead allowed virtually unlimited claims to be filed for all surface water on the reservation[7] as well as significant claims for state-owned water resources outside the geographical boundaries of the opened Flathead Indian Reservation.

The responsibility for the adjudication of water rights within a state belongs to each state.  In order to provide for a comprehensive adjudication of all water rights within a state that also had federal reservations of land, the 1952 McCarran Amendment (43 U.S.C. 666) waived the sovereign immunity of the United States for the purpose of adjudicating federal water rights, which include the water rights of Indian Tribes.  The only federal water rights that are found within the states are those water rights associated with the federal reservation of land. The CSKT Compact was negotiated pursuant to procedures established by the Montana legislature under the auspices of the Montana General Stream Adjudication which is a McCarran Amendment proceeding.

In sharp contrast to the principles of the Winters Doctrine and federal reserved water rights, the 2015 CSKT Compact and Senator Tester’s S. 3013 begin with a tribal, not federal reservation of land:

WHEREAS, pursuant to the Hellgate Treaty of 1855 12 Stat. 975, the Confederated Salish and Kootenai Tribes reserved the Flathead Indian Reservation

Bluntly, if the CSKT reserved the reservation themselves[8], are there any federal reserved water rights? Indeed, the CSKT assert that their Tribal reservation of land gives rise to aboriginal water rights and [tribal] reserved water rights to fulfill the purposes of the Treaty:

WHEREAS, the Confederated Salish and Kootenai Tribes claim aboriginal water rights and, pursuant to said Treaty, reserved water rights to fulfill the purposes of the Treaty and the Reservation

Thus, the CSKT Compact does not meet the definition of a federal reserved water right proceeding based on the Winters Doctrine.

The Montana General Stream Adjudication is governed by the McCarran Amendment with respect to the adjudication of federal water rights, which arise only from a federal reservation of land.  Except for this CSKT Compact, every Indian and non-Indian compact negotiated in the State of Montana acknowledges the federal reservation of land.  In short, there are no “aboriginal tribal reserved water rights” recognized in or allowed by either the Winters Doctrine or the McCarran Amendment in a state’s general stream adjudication.

Notwithstanding the prescriptions of the Winters Doctrine and requirements of the McCarran Amendment, the 2015 CSKT Compact and Senator Tester’s S. 3013 used the erroneous tribal reservation of land to create and claim new ‘tribal reserved water rights’ geographically outside the Flathead Indian Reservation, extending their claims throughout western Montana[9].  This is in stark contrast not only to existing law, but also violates an Indian Claims Commission stipulation agreement signed by the CSKT in 1966 that forever barred the CSKT from seeking any further off-reservation claims that it could have filed against the United States in any forum.[10]

While we recognize it has been a long-term policy goal of the Tribes to assert the Tribal reservation of land instead of the federal reservation of land as a basis for a Tribal reserved water right[11],  such a mechanism is not afforded to the Tribes because the Winters Doctrine and McCarran Amendment recognize only those federal  water rights that arise from a federal reservation of land[12].

The potential liability to the United States of the asserted non-federal reserved water rights claims in the CSKT Compact appear to be two-fold. First, the United States could face the loss of most if not all these water claims for failure to adhere to and comply with the Winters Doctrine and McCarran Amendment thus wasting time and resources in the effort.  Secondly, it appears that if the United States somehow prevailed in these claims, it would be in direct violation of a stipulation agreement signed between it and the CSKT in 1966. We also believe this will result in a Fifth Amendment taking without compensation of the water rights of hundreds of thousands of Montanans both on and off the reservation.

A Closer Look at Article 3 of the Treaty of Hellgate and Off-Reservation Water Rights

The CSKT Compact asserts that Article 3 of the Treaty of Hellgate, a “Stevens Treaty”, reserved a water right off the Flathead Reservation to fulfill the purposes of the Treaty.  For the CSKT Compact purposes, the relevant language of Article 3 is:

…the exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land[13]

Commonly seen as a right of access to usual and accustomed places, the geographic scope of the Stevens Treaty access right extends only to the lands ceded by a Tribe to the United States or to reservations within the ceded areas created by the United States when the treaties were ratified (United States v. Winans, 198 U.S. 371 (1905)).[14] The Winans case was not a water rights case but was about a servitude in the land and had nothing to do with reserved water rights.

The CSKT Compact, however, combines the Winters and Winans cases together so that the Article 3 Treaty-imposed servitude generates a reserved water right for instream flow.  The Compact extends this Article 3 reserved water right claim outside the CSKT aboriginal lands ceded to the United States, and then further, extends the reserved water right east of the continental divide to include reserved water rights in the CSKT claimed “subsistence range”, which covers roughly half the state of Montana.[15]

While we recognize the complexity of the issues and policy questions presented by the interpretation of the “in common” phrase of the Stevens Treaties containing similar Article 3 language[16], we believe that the off-reservation claims presented in the CSKT Compact should not be resolved within a federal reserved water rights settlement that is a McCarran Amendment proceeding.

Article 3 in our view does not generate federal reserved water rights, or any other water right. However, in the People’s Compact we attempted to address the 270,600 acre feet of water awarded to the CSKT out of the irrigation project in 1985 for fisheries purposes as part of the on-reservation federal reserved water right. We are unsure if this is the proper way to address this as bifurcating the Article 3 into on-reservation or off-reservation access rights, with on-reservation access generating a federal reserved water right doesn’t fit the legal intent of Article 3’s access provisions, or the “in common” language’s addition of a harvestable quantity of fish. It makes more sense to attribute the 270,600 acre feet awarded to the Tribes for fisheries in 1985 as the agricultural reserved water right that was changed to instream flow. This highlights the importance of accurately describing Article 3 and appropriately attributing federal reserved water rights to the purpose they are generated from. [Note: our further research resolved this problem by noting that Article 3 is not a purpose of the reservation but instead conveyed usufructory rights to use the reservation for fisheries within the irrigation project.  See the People’s Compact Framework Paper for how this resolution affected the People’s Compact here.]

 Water Administration, Due Process, and Civil Rights

We assert that the water administration mechanism proposed by the CSKT Compact violates the due process rights of Montana citizens and is a violation of the civil rights of citizens guaranteed by the U.S. Constitution.

A central feature of the CSKT Compact involves the replacement of the Montana Water Use Act[17] with a new compact-created administration system that permits a political entity to have jurisdiction over the water rights of Montana citizens whether based in federal, state, or tribal law.  Known as the Unitary Management Ordinance or Law of Administration, it vests the power to manage the state law-based water rights and uses of  Montana citizens in a politically-appointed and unaccountable board dominated by the CSKT.

Resolution of disputes among water users within the Law of Administration, whether tribal or non-tribal, is up to a “court of competent jurisdiction”, which under the CSKT Compact the litigating parties must agree upon.  Since it is likely the Tribes will never accept state court jurisdiction, a federal court will be the only resort of Montana citizens, and that federal court may not have jurisdiction over the issue.

Thus, Montana citizens are deprived of the customary District and State Supreme Court mechanism employed to resolve disputes among citizens and are deprived of the constitutional protections of the Montana and U.S. Constitutions[18].  The liability to the United States and state of Montana for these violations is incalculable[19].

Summary

In summary, the evaluation of the United States liability regarding the proposed CSKT Compact necessarily will involve expanding the scope of the analysis to include the impacts to the thousands of non-Indian citizens within the Flathead Irrigation Project, residing on the reservation, and potentially to the hundreds of thousands of citizens across Montana whose water rights will be impacted by the extensive claims of the CSKT.

The damage done to the Winters Doctrine, the McCarran Amendment, Acts of Congress, Congressional intent, and the civil and due process rights of Montanans, while evident in the terms of the CSKT Compact, are almost incalculable.  For these reasons, we believe that the CSKT Compact is not in any way, shape, or form a settlement of the federal reserved water rights of the CSKT.

 A Proposed Solution

The complexities and impacts of the CSKT Compact, and the potential liability both to the United States and State of Montana generated by it inspired us to develop an alternative solution to present to Congress for consideration.[20]

This effort began with a sincere desire to resolve the federal reserved water rights of the CSKT within the framework of existing federal reserved water rights law and the McCarran Amendment; to respect the Congressional intent in the development of the water resources of the Flathead Reservation;  and to resolve any outstanding water claims of the Tribes.  Because the CSKT Compact itself generated considerable divisiveness, our intent was to also mend fences within our community and across the state of Montana.

Called “The People’s Compact” or “Mending Fences Act”, this alternative solution quantifies the federal reserved water rights of the CSKT,[21] resolves an outstanding 1951 CSKT Claim related to the use of water in the Flathead Irrigation Project, provides for the development of the Tribes’ federal reserved water rights including the rehabilitation of the Flathead Irrigation Project to benefit both fisheries and irrigation, and retains the dual administration system for state law-based and tribal law-based water rights characteristic of every other Compact in Montana.

Under the People’s Compact-Mending Fences Act, there are no off-reservation water claims.  The estimated costs for this settlement, including the resolution of the outstanding water claim of the CSKT, are between $600 and $775 million dollars, less than one-third of the costs in Senator Tester’s S. 3013.

We have attached to this letter a background paper describing the Legislative Framework for the People’s Compact, which provides new information the Department may not be aware of and describes the current issues that must be addressed in moving forward with the resolution of the CSKT federal reserved water rights.  The paper provides a pathway forward in rectifying the deficiencies of the CSKT Compact/S. 3013, limiting the United States’ liability, and providing a viable and vibrant self-determined future for the full use and development of the CSKT federal reserved rights.

For your information, we have also attached additional information including a legal review of the CSKT Compact and charts comparing Indian water rights settlements in Montana and across the United States with the proposed CSKT Compact.  We hope you find these useful to the Department’s evaluation of the CSKT Compact.

We look forward to our discussion with you and the Secretary’s Indian Water Rights Office.

Sincerely,

/s/ Al Olszewski

Dr. Al Olszewski, State Senator

Co-signators: Boone Cole, Chairman Jocko Irrigation District; Catherine Vandemoer, Ph.D. Chair, Montana Land and Water Alliance;Terry Backs, Concerned Citizens of Western Montana

Attachments

Cc:  Office of Senator Steve Daines, Congressman Greg Gianforte

FOOTNOTES

[1] 35 Stat. 444, 448-50. See also Letter to James Steele, Jr., Chairman, CSKT from Edith Blackwell, Deputy Associate Solicitor, Division of Indian Affairs, U.S. Department of the Interior,  December 21, 2007.

[2] In 1982, the Bureau of Indian Affairs (BIA) timely filed water claims on behalf of project water users in the Flathead Irrigation Project.  In 2015 the BIA filed competing claims on the same water but on behalf of the CSKT.

[3] Richard A. Simms, “Letter to Montana Legislators Regarding the Lack of Quantification in the Proposed CSKT Compact”, January 11, 2015, in Montana Land and Water Alliance, 2015,  Legal Analysis of the CSKT Compact

[4] The Compact Implementation Technical Team (CITT), already implementing the compact inside the federal irrigation project, replaces the BIA. Irrigators, who own 90% of the project lands, are allowed one representative.

[5]The 1908 Act maintains federal ownership of the federal infrastructure although management and operations would be turned over to the landowners served by the project

[6] The Winters Doctrine specifies that the federal reserved water right is the amount of water necessary to fulfill the purposes of the reservation and is a discrete amount of water limited to the reservation land.

[7] The additional CSKT claims filed after the Compact was passed by the Montana legislature included claims for 35 million acre feet of ground water beneath the reservation.  The United States did not include these ground water claims as part of their filing of the post-passage 10,000 claims.

[8] The concept that Indian Tribes reserved their own reservation is defeated by history and case law.  See, Simms, Richard A., January 8, 2015, Memorandum to Senate President Debby Barrett and Speaker of the House Austin Knudsen; and Simms, March 18, 2015 “Threat of 10,000 Off-Reservation Instream Flow Claims” in Legal Analysis of the CSKT Compact, MLWA, April 2015.

[9] The United States and CSKT claim that Article 3 of the Treaty of Hellgate conveys a tribal reserved water right to meet the Treaty right to access aboriginal lands to fish. The extent and scope of the Article 3 access right is a hotly debated and litigated issue outside of McCarran Amendment proceedings.

[10] 17 Ind. Cl. Comm. 297. Stipulation agreement found at p. 309 and reads “The judgment shall finally dispose of all claims or demands which petitioner has asserted or could have asserted in this case against defendant, and petitioner shall be barred from asserting all such claims or demands in any future action.”

[11] American Indian Policy Review Commission Final Report Submitted to Congress May 17, 1977

[12] Any additional claims for off-reservation water rights in western and eastern Montana would have to be resolved through a separate court action outside of the McCarran Amendment proceeding’s Montana General Stream Adjudication.

[13] Treaty with the Flatheads etc., July 16, 1855 12 Stats. 975, Ratified March 8, 1859, in Indian Affairs Laws and Treaties Vol. II (Treaties), Compiled by Charles J. Kappler, Washington, Government Printing Office, 1904.

[14] See also Antione et ux. V. Washington, 420 U.S. 194, 205 (1975).

[15] Simms, Richard A., 2015. “Threat of 10,000 Off-Reservation Instream Flow Claims”, in Montana Land and Water Alliance Legal Analysis of the CSKT Compact, March 18, 2015.

[16] For example, see United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975), otherwise known as the Boldt Decision, that expanded the “in common” language to include a right to 50% of the harvestable fish. The decision did not amend the nature of Article 3 to include a water right.

[17] Montana Code Annotated Title 85

[18] Simms, Richard A., 2015, “Constitutional Violations of the CSKT Compact”, in Montana Land and Water Alliance, 2015, Legal Analysis of the CSKT Compact.

[19] Title 42 Sec. 1985

[20] With the completion of the negotiations on the CSKT Compact and its passage by the Montana legislature, Montana’s Compacting process through the Montana Reserved Water Rights Compact Commission has been completed. Pursuant to that process the CSKT and United States water claims on behalf of the CSKT were filed with the Montana Department of Natural Resources and the Montana Water Court in July 2015.

[21] The quantification numbers are taken from the 2015 United States water claims filings that were developed to fulfill the agricultural, on-reservation fisheries, and industrial purposes of the reservation as articulated in Articles 3, 5, and 6 of the Treaty of Hellgate. [Note, Article 3 is not a purpose of the Flathead Reservation.  See here.]

Prepare for Another Onslaught of Threats

©2018 Concerned Citizens of Western Montana

Since the questionable ratification of the CSKT compact in the 2015 Montana legislature, we’ve posted quite a few articles about the United States and CSKT filing of 10,000 claims covering 2/3 of the state of Montana.

Montana’s “Negotiations” Failed its Citizens

When negotiators sit at the table, they typically know exactly what it is they are negotiating over.  But no such luck in Montana.  Proud of its “compacting process”, the compact commission accepted the tribe’s 2001 and 2010 proposals as adequate and spent decades “negotiating” without ever realizing just how big the overreach of the United States and the CSKT was.  For decades, the main thrust of the tribes’ proposals insisted on:

1. All of the water flowing through, over and under the reservation
2. Off reservation claims (with no specified geographical limitation)
3. Tribal management and administration of all of that water

Because the compact commission failed to ask for the claims before sitting down at the table, little did the state or the public realize how geographically expansive and overreaching those claims would ultimately be.

This was a huge miscalculation on the part of the compact commission, because at the end of the day:

• The failed process allowed the threat of 10,000 unfounded claims to be wielded as a means of coercing Montanans into accepting a very bad compact, and  Montana legislators into “ratifying” the Compact in 2015.
• These claims continue to be a looming threat, ready to be used to wreak havoc on the state adjudication process because they represent the threat of re-opening basins east of the divide whose water rights were close to being resolved
• This threat to the adjudication process is also subtly being used to” influence the water court” into issuing stays on any examination of the United States / CSKT 10,000 claims as well as those in the proposed CSKT compact.

We now know that part of the strategy was to ensure that there will never be an examination of the 10,000 claims.  The same holds true for the claims in the CSKT Water Compact.  The plan was that once ratification by all three parties was complete, the compact’s unscrutinized claims would then be incorporated into the decrees for the basin, and people would never know what hit them.

Adding insult to injury, upon ratification of the CSKT Compact by all three parties, these 10,000 unscrutinized and legally indefensible claims will be dismissed without prejudice allowing them to hang over the state as a looming threat of future litigation.

As we recently pointed out, this is far different than the process Idaho is going through related to claims of the Coeur d’Alene tribes:  A Tale of Two States:  Montana and Idaho

Phase Two of the Strategy:  Mercury and FARM

In 2014 we documented tribal money going toward advancing the CSKT compact via republican legislators:

Bruce Tutvedt:  CSKT Lobbyist or Legislator?

In 2016, we were able to use public records to document the genesis of Farmers and Ranchers for Montana (FARM) via CSKT dark money paid to Mercury LLC:

FARM, Grassroots, Astroturf or Something Else?

The Anatomy of the CSKT Water Compact was later developed to connect all of this information together by showing the faces of the CSKT water compact, lovingly referred to by FARM as “Montana’s Compact”:

Anatomy of the CSKT Water Compact

In early August of 2018, the CSKT Tribal Council approved another contract with Mercury LLC from March 1, 2017 through  September 30, 2019 (is this an error in the minutes or was the contract approved after the fact?)

Here is contract information taken from their August 7, 2018 tribal council minutes.

The first order of business after council approval on the contract was the letter sent by FARM throughout the state that hit mailboxes sometime in the 2^nd week of August.  The letter, designed to look like a legal notice from the Montana Water Court Adjudication included the boldest threat to Montanans that we’ve seen thus far:

Public records indicate you may have a financial, property or other interest that could be negatively impacted without final approval of the Compact. WITHOUT THE COMPACT YOU MAY LOSE THE ABILITY TO IRRIGATE FOR DECADES WHILE THE WATER COURT ADJUDICATES CSKT’S CLAIMS.

For more information about this letter, including a copy of its entire content, click on this link:  FARM Notice Signals Tribal Desperation

Make no mistake, the timing of this recent CSKT contract with Mercury is intended to maximize the tribe’s influence toward helping Jon Tester’s re-election aspirations, and to make the CSKT compact an issue most likely for the lame duck session immediately after the election, and into next year.

Should Tester retain his senate seat, expect them to push harder than ever before for ratification of Tester’s S.3013 2.0 and the horrible CSKT water compact that was inserted into it.

Brace yourselves, the recent FARM letter sets the stage for what lies ahead of us for the next year.

It doesn’t take a rocket scientist to figure out that Montanans should expect even more aggressive and ridiculous threats paid for courtesy of the CSKT through their “public relations” strategy planned and executed perfectly by Mercury Public Affairs LLC.   The only thing we don’t know for sure is whether FARM will continue to be their preferred messenger, or if a “new” grassroots organization will be invented.

The 10,000 claims have sure been handy, brilliant if you will.  They can and will be forever used to beat Montanans, particularly the courts into submission.

The once warm and fuzzy “Montana’s Water Compact” has now morphed into the threat of decades of deprivation of irrigation water.

Remind us again about why this compact is so good for Montana?  If it’s so good, why must they resort to coercion and threats to get it ratified?

FARM Notice Signals Tribal Desperation

© 2018 Concerned Citizens of Western Montana

Last week, many irrigators around the state were treated to an official-looking document appearing to have something to do with the water court and litigation.  Its contents included an aggressive threat specific to irrigators: Support and acquiesce to the CSKT water compact or face the risk of losing your irrigation water for decades while you spend large amounts of money defending your inferior claims in the water court against CSKT objections to encroachments on their pervasive prima facie time immemorial claims.

Gee, wasn’t it the nice, friendly and wonderful “Montana’s Water Compact” just a couple of short years ago?

Their mailer reads as follows:

Montana Water Rights Litigation Notice
Impacted Owner
Basin Number

Impacted property owners and water right holders in 54 of Montana ‘ s 90 water basins are likely to be the subject of litigation before the Montana Water Court without implementation of the Confederated Salish & Kootenai Tribe (“CSKT”) Water Compact (“The Compact “).

The Compact is a negotiated agreement made between the State of Montana, the federal government, and the CSKT, with input from agricultural groups and water users to prevent existing water rights from being challenged in Court. The Compact was passed by the Montana State Legislature and signed by the Governor in 2015, and is pending final approval in the United States Congress.

Consequently, under Montana law, the CSKT was required to file their tribal claims in the Montana Water Court. This legal action will require existing water right holders to prove their rights predate those of the CSKT, which have a priority date of 1855, or time immemorial. Without the Compact, all tribal claims are presumed valid, predate most if not all other water use claims, and can be enforced against all other water users until adjudication is completed.

Public records indicate you may have a financial, property or other interest that could be negatively impacted without final approval of the Compact. WITHOUT THE COMPACT YOU MAY LOSE THE ABILITY TO IRRIGATE FOR DECADES WHILE THE WATER COURT ADJUDICATES CSKT’S CLAIMS.

Farmers and Ranchers for Montana ( ” FARM” ) is a coalition representing agriculture, irrigators , business and other stakeholders across Montana dedicated to implementing the Compact in order to prevent the litigation of existing water rights. The Compact will preserve existing water rights, reduce uncertainty, protect property values, and minimize decades of costly litigation .

PLEASE RESPOND IMMEDIATELY by visiting www.MontanaWaterCompact.com to join our coalition, take action, and ensure final approval of the Compact.

A name redacted copy of this mailer can be found at this link.

NOTE:  Be sure to look closely at the postage stamp on page 2.  Is that a tribal insignia?  Is FARM using it to show solidarity with the CSKT, or is it possible they erred by using the tribe’s money or postage meter to fund the mailing? Regardless, the Tribes created FARM through Mercury Consulting.

Some History

Before we discuss the notice, let’s remind people that FARM is anything but a  “grassroots” organization.  Created with dark tribal money, via Denny’s Rehberg’s Mercury LLC, and with the help of Montana’s good old boys swamp, they were able to use CSKT funds to advance a huge advertising campaign throughout the state of Montana to help get the CSKT water compact approved in 2015.

See our article from 2016, that researched its genesis using public records.

FARM:  Grassroots, Astroturf or Something Else?

Even with all of that public relations glitz and glamor, the compact was so overreaching and controversial, a small group of republican legislators found it necessary to conspire with democrats to change house rules in order to garner a flawed and questionable “ratification” of the compact in the Montana legislature.

A few years down the road, and with some hindsight, it is clear that the goal was to get the compact ratified by all three governments before the public ever knew what hit them:

Goal	Status
Get the CSKT compact ratified in the Montana Legislature without ever letting legislators know how much water was being ceded or its impacts on the economy of western Montana.  Give the parties immunity from damages resulting from the taking that they all presided over.  Have the Montana Supreme Court bless their failure to secure the constitutionally mandated 2/3 vote in the Montana House and Senate	Accomplished
Implement portions of the Compact prior to federal ratification to ensure that its impacts will take effect even if it never is ratified by Congress	Partially Complete
Hire lobbying / public relations firm to “sell the compact”	Accomplished
File 10,000 claims, over 2/3 of the state of Montana, most with time immemorial priority dates	Accomplished
Ensure there is no scrutiny of the tribe’s overreaching and ridiculous compact claims as well as the 10,000 claims filed over 2/3 of the state of Montana. The tribe’s currently have a stay until January of 2020	Accomplished
To give the Montana water court the appearance that the water compact has momentum in congress	Accomplished
Pitching tipis if necessary in the halls of Congress in an all or nothing effort to lobby for their water compact	Work in progress
Get a Montana Senator to introduce a bill written by tribal attorneys, with a $2.3 billion price tag and ownership of the largest irrigation project in the state of Montana	Accomplished
Secure Federal ratification of the CSKT compact faster than any other compact ever	Stalled

This FARM Notice adds one more item to what has now become a very offensive list:

To mislead, frighten and coerce Montanans into supporting the compact to “protect their own water rights” from an overly aggressive tribe.

Compact ratification or not, it is unlikely that the Montana Water Court will approve any additional stays on claims examination in Hydrologic Basins 76L and 76LJ. 

This latest stunt by FARM indicates an increasing sense of urgency and desperation of the tribal government to secure a quick ratification of their beastly water compact.

Where is Montana, and Why Aren’t they Crying Foul?

A reasonable person might ask if this FARM “Litigation Notice” is a blatant attempt to intimidate citizens, influence Congress, and to ensure a biased water compact outcome in the Montana Water Court? If successful, these efforts essentially guarantee that those of us living in western Montana can never have a fair hearing in the Montana Water Court, because our claims will be buried under the weight of the federalization of our water. If successful, water users in Eastern Montana will have a permanent cloud over their water rights and face decades of litigation even if the compact is passed.

So why isn’t Montana calling foul on this FARM memo?  Why is our illustrious and knowledgeable Attorney General missing in action?  Why do compact proponents only have threats to advance their cause?

And importantly, no one who supports the compact can tell you why they do. Just ask them.

To the Montana elites supporting the compact, the ends have always justified the means.  Once Montana made its decision to abandon its citizens and allow the federalization of its western water, it became necessary to develop respectable sounding “legal legs” and talking points for the public.  Part of that strategy includes a mutual defense clause written into the compact.  Keeping quiet in the face of bullying and coercion tactics toward your citizens could reasonably be interpreted as “mutual defense” while letting someone else do the dirty work.

The threat of 10,000 claims has always been part of the strategy.  Montana clearly has decided to sit back and let its citizens continue to be divided and threatened by attorneys for one small tribe located in western Montana.

It’s Now Up to the People to Stop this Nonsense

Because all three branches of Montana government, state agencies and its good old boys swamp continue to fail the people of Montana, the burden now falls on We the People to stop this madness.

We urge you to send a copy of the FARM memo along with your own comments to the Montana Water Court to express your displeasure with the tactics currently being used by FARM at the apparent urging of the CSKT.  In light of the generous extension of time given by the Water Court to the Tribes, and in light of the professed “benefits” the CSKT compact is supposed to bring to Montana, why are they behaving this way?

If there is currently a stay on the examination of claims in the water court, surely it would be offensive to the Court to note the level of coercion that is still taking place during this interim period?

It’s way past time to disarm the state’s ability to divide its citizens against one another through its actions and its consistent failure to represent its citizens and protect their property rights.

If the property rights of all Montanans are not protected, no one’s rights are protected.  This means property rights that exist on both sides of the divide.

A Reminder

©2018 Montana Land and Water Alliance

A not-so-small thing is happening in Northwest Montana that if allowed to proceed, will impact the entire western United States. Our friends in Kalispell, former state Senator Verdell Jackson, Jim White of Northwest Liberty News, and Tim Orr of St. Ignatius provide this overview!

Waking the Sleeping Giant

©2018 Montana Land and Water Alliance

We have been waiting for the moment when compact proponents would cross a line and fail in their relentless efforts to destroy the Flathead Irrigation Project. That point came last week when a judge, pursuant to a lawsuit funded by wealthy loudmouth compact proponents, dissolved the Flathead Joint Board of Control (FJBC).

The irony is these compact proponents sued to dissolve the FJBC with the intent of reforming it so that they could assert compact proponent control over the FJBC and force the CSKT Compact down their neighbors’ throat.

Well guess what?  The FJBC may not be reformed as the individual irrigation districts now see this as having been freed from the incompetent “leadership” of compact proponents, and those commissioners who just “want to get along” regardless of the  intended uncompensated and unconstitutional theft of property rights represented by and inherent in the CSKT Compact.

Make no mistake here: the wealthy, loudmouthed compact proponents want the irrigators to lose their ability to protect their property rights, paving the way for the improper and unlawful transfer of the water rights and project infrastructure to the CSKT as described in  Tester’s Bad Burrito, or S. 3013. These compact proponents—agents of the state and tribes–just blew it by their actions.

As long as this Board existed and was compromised by the Flathead District and other willing “get along-ers”, it was the largest and easiest target for the proponents, Tribes, and the state of Montana to push a central feature in the compact–the transfer of the bare legal title of the irrigators’ water rights to the Tribes for their control. Since that title would be transferred, the Tribes would claim and the state would comply with the wholesale transfer of water management authority to the unconstitutional, ill-formed, and unaccountable Unitary Management Board.  The big fat target is no more.

For those of you who still think this is an “Indian Irrigation Project”, now is the time to face reality: it is NOT.  The FIPP was built for all residents in this area, and by 1924 over 80% of the project was serving non-Indian settlers invited by the United States to settle the remaining unallotted lands.  Oh, and don’t forget that Tribal members sold their lands to the settlers. These lands were not “stolen” as some would have you incorrectly believe.  The Tribes have in fact received millions of dollars from the federal government to “repay” them for irrigated land the Indians sold to non-Indians. In 2018, over 90% of project lands are owned by non-Indians.

The Tribes can have their own opinion of this–aka its an Indian project– but they are not entitled to their own facts.

Project Turnover–Time to Move Forward

As required by Reclamation law and by the 1908 amendments to the Flathead Allotment Act, when the construction costs for the irrigation project are repaid by the project irrigators, the management and operation of the project shall be turned over to the landowners therein.

While some privately worry that the FJBC dissolution means that the project will never be turned over to the irrigators, its time to think again.  The FJBC was formed to achieve project turnover, that much is certain.  However because of the politics, compact, questionable “consultants and advisors”, and the incompetence of previous FJBC commissioners, that mission has failed.  But does that mean that the operation and management of the FIP cannot be turned over to the “project landowners” within the three, soon to be five, separate irrigation districts?  In our view, the answer is NO.

Face it: under the scenario of the project landowners having the authority for project operations and management, the FJBC would not have been the entity to manage the project.  Even in current  discussions of project turnover, and in the current lawsuit which was filed under both the FJBC and the three irrigation districts, Commissioners have been designing an entity that is separate from and NOT the FJBC.

The irrigation project management and administration would be left up to an irrigator-determined and paid technical staff, consisting of engineers, agronomists, hydrologists, economists/accountants, and ditch riders, supplemented by fish biologists and water quality specialists to inform the management of the project given existing instream flows and water quality objectives. The Tribes presumably would participate through staff who would manage  the 10% of Tribal lands within the project.

If we are to think at all about project management and administration, its time to think big, and think outside the box we have placed ourselves in—i.e., that the FJBC must exist to turn over the project management and administration to the landowners.

The CME: A Fake FIP Project Turnover?

The Cooperative Management Entity (CME), part of the agreement with the Department of the Interior, the irrigators,  and the CSKT, was destroyed by the withdrawal of two irrigation districts from the FJBC in December 2013.  Again a group of small-minded rogue commissioners who initiated this withdrawal—without permission from or agreement by their constituents–did this so as to push the CSKT compact forward.

Our analysis indicates that these commissioners had planned to use the CME as the entity to “agree” to the Compact since the FJBC would not.  Notice, if you will, the parallels between the Compact Implementation Technical Team (CITT), which was a last minute addition to the 2014-15 Compact because the irrigators did NOT support the compact.  The CITT is effectively a way to bring back the CME to implement the Tribes’ plan, which is to destroy irrigation in favor of instream flow.  Here again, the compact proponents’ plans failed when they intentionally broke upf the FJBC.

The reality of the CME was that it had the wrong proportionate representation according to the law and irrespective of the “approval of the Secretary”.  When 90% of the project is owned by non-Indians, who in part bought the land from Indians who sold it, and only 10% in Indian hands, why was it that the tribes had 50% representation and essentially controlled the CME because any tie was broken by the BIA member of the CME?

The CME was an illusion that gave irrigators a false sense of “local control”.  It was never designed for local control, it was always meant for Tribal control.

The only salvageable product of the CME is the 2010 Operations Plan, which is now the only legal plan that exists to operate and manage the Flathead Irrigation Project.  That’s a good thing.  It means that while the irrigators work in their own districts, litigate the issue, consider a plan for organization, operation and management, and while the compact is being considered by Congress, a solid operations plan exists to simply run the project as is without an FJBC.  That includes the delivery of non-quota water in the spring, which was approved in the 2010 plan.

Furthermore, the CITT is constrained because it cannot, pursuant to an unapproved compact, change or “adaptively manage” irrigation operations in a federal irrigation project.  To do so would turn federal law on its head, and transform a facial taking of water rights to an actual taking.

State law cannot supplant federal law in a federal irrigation project.

Next Steps?

We believe there are a number of steps that can and should be taken that will restore and strengthen the irrigation districts’ desire to take over the management and operations of the Flathead Irrigation Project:

1. Request that the Secretary of the Interior, through the BIA, manage the FIP according to the 2010 operations plan.  Remember that everyone–the tribes, the irrigators, and the United States–agreed on and cooperatively developed this plan.
2. Continue the litigation forcing the Interior Department’s turnover of the operations and management of the project to the landowners, and continue to develop the management entity–separate from the FJBC– as has been underway by the districts for over two years.  Remember that this litigation is in the name of all three of the districts and the now-defunct FJBC.
3. Break up the Flathead Irrigation District into two or three separate districts so as to eliminate the ability of one district to control all the other districts.  This should be done before any consideration of forming a new FJBC.
4. Remove liens on irrigator lands. The FIP was paid off in full in 2003.
5. Learn from the mistakes of the past FJBC. In addition to administrative procedures and better communication with irrigator constituents, consider eliminating all avenues for the breakup or control of the FJBC by a small group of rogue commissioners or a single district.

Importantly, remember that no amount of nicey-nice talking with the CSKT will change their objectives, which have been clear for more than a decade.  They want total unequivocal control of the FIP so that eventually they can dismantle it.

The sleeping GIANT—the irrigators of the Flathead Irrigation Project–is WOKE.  You have more power than you realize, now harness it for your future!

The Compact-Generated “Co-Owned” Milltown Dam Water Right

©2017 Montana Land and Water Alliance

Author’s Notes: Grab your favorite beverage as this is a long article, probably taken in two sittings!  The first part of this article is a “quick” status report on the compact-generated Milltown Dam off-reservation water right and recent events and communication regarding its implementation off the reservation.  The second part is an article drafted for the public in response to a recent FWP hearing on the water right, which is too long for every paper and magazine.  Thankfully this venue offers potentially wide distribution and we’d appreciate you sharing it to those who may not have access to a computer!

The following article discusses the improper and in our view illegal implementation of  the CSKT Compact off the reservation for the Milltown Dam water right.  Recall that the Compact authorized two actions to begin immediately:  (1) implement the adaptive management plan for the Flathead Irrigation Project through the CITT (Compact Implementation Technical Team), and (2) implement the Milltown Dam water right, which involved “splitting” a water right on the Clark Fork river between two tributaries and changing the use to instream flow.  This was a change in the point of use(POU) and type of use for the water right.  Here’s the problem:

The state chose to implement portions of the CSKT Compact before Congress has considered or ratified it.  The portions they chose to implement involve uniquely federal issues—a co-owned water right off the reservation with the CSKT that is subject to Congressional approval, and attempted “adaptive management” inside the federal Flathead Irrigation project on the reservation which transforms irrigation water into a fisheries instream flow project.

On the reservation, of course, the BIA at the behest of CSKT has been pre-implementing the Compact since 2013 by denying irrigators the use of spring runoff, failure to store water (2013-2015), and failing to manage water deliveries or favoring compact proponents in the project, which has caused hardship and strife among neighbors. These actions stray far from the 2010 Operation and Management Plan which is the only federal document that is operative now. Thus the BIA, CSKT, and State/Compact-created CITT actions  in a federal irrigation project are by definition unlawful because they are contrary to the only federal operating document for the project.

Importantly, the state’s actions are improper no matter if the Compact is in Court or not–the state is wholly without authority to implement the compact in the federal Flathead Irrigation and Power Project.  Let’s not help them!

Off the reservation, the state is implementing what the compact calls a  “co-owned water right” with the CSKT.  The barriers to implementing this “co-owned” water right include:

1. the legal validity of the all of the Compact’s claimed off-reservation water rights
2. the legality of implementing a change in point and purpose of use of a state water right without a state law based hearing and/or environmental assessment,  and
3. the actual ownership of the water right being federal, not Tribal.  So the state is going to co-own state water with the federal government.  (Note to State:  giving up water to the federal government, not the CSKT, sounds a little less romantic and daring now, doesn’t it?).

The Montana Land and Water Alliance first wrote to DNRC Director John Tubbs in November of 2015 citing the legal case and questioning the state’s implementation of this water right while the case was in court.  We suggested that until the case was resolved a state law based hearing should be held to address the known concerns of local irrigators regarding the effect of instream flow on irrigation.  Of course the DNRC dismissed our letter asserting the compact had passed the legislature. But that actually began the official clock as to the on-the-record notification to DNRC of the improper implementation of this water right.  The clock will be cleaned at some point in the future.

State Changes Compact Again without Legislature

Recently we had a chance to review the abstract for the Milltown Water Right which shows that it has changed from the 2015 Compact  in both ownership and effective date of the right. In 2015 it was a co-owned water right with an immediate effective date.

Now the water right  is owned by the State and the CSKT will at sometime in the future become the water right co-owner:

THE CONFEDERATED SALISH AND KOOTENAI TRIBES BECOME CO-OWNERS OF THIS WATER RIGHT ON THE EFFECTIVE DATE OF THE COMPACT, WHICH THE DATE ON WHICH THE COMPACT IS FINALLY APPROVED BY THE TRIBES, BY THE STATE, AND BY THE UNITED STATES AND ON WHICH THE LAW OF ADMINISTRATION (APPENDIX 4 OF THE COMPACT) HAS BEEN ENACTED AND TAKEN EFFECT AS THE LAW OF THE STATE AND THE TRIBES, WHICHEVER IS LATEST.

Note here:

• the 2015 Compact has been changed by the state executive agencies, despite disallowing the state legislature to change any aspect of it, including the “effective date”.
• what is the “Law of Administration” (UMO, WMB) doing in an abstract for an off-reservation water right?

This review prompted our second letter to Director Tubbs focusing on the abstract changed effective date, and asserting that until the compact is passed by Congress the Milltown Dam water right is a state owned water right and the compact cannot be used for its implementation because it requires Congressional approval–which is not certain- and ratification.

We requested once again that the state conduct a state law based hearing on the Milltown Dam water right, particularly because there are still anticipated impacts to irrigators that have not been addressed. That second marker was approximately 575 days after our first notice.

In its response to the MLWA letter,  the state doubled down on the compact’s supposed authority allowing the Milltown Dam water right to be implemented without a state hearing, and astoundingly, cited another appendix in the compact that allowed the state up to 10 years to hold “stakeholder meetings” to adjust to the new flow regime.

Regarding our question as to why the Law of Administration was included in the Abstract when it was unnecessary to existing language in the compact, the state couldn’t bring itself to acknowledge tribal-influenced language? a clerical error or oversight. Instead, it applied an allegedly reservation-based law for water to an off reservation, state-owned water right before it had the authority to do so.

The state cannot apply federal ownership to state owned water resources when the federal government has not itself done so.  What’s hard to understand about that?

Corrective Action

Why do we mention the number of days, now over 500?  Simple: in light of the clear facts presented, the state is out of compliance with its own law and its been over 500 days since they were notified.    The corrective pathway was identified in our recent letter.

Imagine if this were you, and you had a daily fine until you corrected an action on your property that violated an EPA, the Corps of Engineers, or Endangered Species Act regulation?  Those fines can range easily from $25,000-$100,000 per day, for which you have to spend additional money and hire lawyer to help.  What if we had the same kind of accountability for DNRC?  You can do the numbers for Milltown.

But seriously, what if DNRC implementation of this water right results in damage to irrigators using ground water resources hydrologically connected to the river? Under state law, the state would have to address these damages.

On reservation, the Compact  grants the state immunity from damages, costs, and attorneys fees resulting from implementation of the Compact’s Law of Administration.  But since the Law of Administration is now attached to the Milltown Dam water right, does that mean that the state is now immune from off-reservation damages too?

Is the state using the Compact to abandon its own law?

meeting on milltown dam water right

Recently the Granite Headwaters Watershed Group sponsored a meeting on the Milltown Dam water right and the CSKT Compact. Representatives of the MT Fish Wildlife and Parks were on hand to answer questions.  The meeting was described in the July 6 edition of the Philipsburg Press and can be found here.  The state asked for feedback. Here is our response.

“State Should Follow State Law, not Compact, for Milltown Dam Water Right”

Thanks to the Granite Headwaters Watershed Group for sponsoring a meeting on the Milltown Dam water right in relationship to the CSKT Compact, to the state presenters, and to reporter Emily Petrovski for capturing the sense of the meeting and the questions presented and addressed in the Philipsburg Press.

From the context of our background in critically examining the CSKT Compact, we’d like to offer a few observations that may help clarify the many questions about the Milltown Dam water right that in my view remain unanswered. Foremost in this essay are (1) the failure of the state to evaluate the impact of instream flows on irrigation; (2) the existence of an off-reservation, “co-owned” water right; and (3) suggestions in lieu of far-off congressional ratification.

For the record, when first examining this water right in 2015, we noted that the Abstract of water right for one of the two Milltown Dam water rights listed the CSKT as the co-owner along with the state, and the Compact language allowed its immediate implementation.  Today the same Abstract has listed the state as the primary owner of the water right, with the addition of the CSKT upon the “effective date” of the Compact; the “effective date is defined as after Congress, the Montana Water Court, and the Tribes have all ratified the compact”.

Thus, in 2015, the state was implementing this water right as if it was co-owned by the CSKT, and authorized under the CSKT Compact and a state law-based hearing was not necessary. Today the state is implementing this water right as a state-owned water right, but still claiming it is under the authority of the Compact which allows them to proceed without a hearing.

Failure to Address Agricultural Impacts of Instream Flow

A first concern about the Milltown Dam water right reported at the meeting is that the “agency is in the first phase of figuring out how the compact will affect irrigators”, according to Fisheries Manager Pat Saffel.  This is startling considering the water right has been implemented since April 2015, and that the DNRC has known since at least 2015 that there would be impacts to irrigators with the implementation of the new purposes for the Milltown Dam water right.

But remember in 2015 the DNRC claimed that the passage of the CSKT Compact was its “authority” for implementing the Milltown Dam water right and apparently that assumption is still there today.

In a February 2015 DNRC report regarding the off-reservation impacts of the CSKT Compact, the state discussed its concern about irrigation and ground water wells regarding the implementation of the Milltown Dam water right. The state indicated that it would have to conduct a hearing pursuant to Montana law and procedure in the event the Compact was not passed[1].  Since the Compact passed the legislature in 2015, the state did not conduct a hearing pursuant to state law and its procedures for the change of use for a water right and went ahead and implemented the change in water use in April 2015.

As of 2017, the Abstract of Water Right has been changed and now indicates that the state is the sole owner of the right, with a notice of the CSKT being added at some point in the future.   The right is still considered part of the Compact but now a state-based water right. But is this water right still implementable under the compact? Is it implementable as a state-based water right without a state-law based hearing, since the right will be owned by the state for a long time before the Compact is ratified by Congress and the CSKT are added as co-owners?

The state of Montana must do more for existing irrigation than “hope” the water issue “will not come down to fish versus agriculture”. In the context of the climate change predicted by Mr. McLane, however, and in the absence of diligent investigation, it will become just that.  Notwithstanding the fact that fish have adjusted to climate change too in the past and are expected to do so in the future, “It’s a fish’s world”, stated by, of course, the Fisheries Manager! What about vested agricultural rights?

Has the CSKT Compact already become a vehicle for the state to avoid a hearing on the Milltown Dam water right, or to ignore its own laws and citizens?

Does a “Co-owned” Water Right Exist with the CSKT?

Perhaps even more fundamentally concerning than not knowing the impact of the change of water use on existing water users is whether the state can “co-own” a water right with the United States.

Yes, the agency at the meeting said that “it was decided” that the Tribes could co-own a water right with the state, and the Compact “gave” them the co-owned water right. But the causal discussion of the validity of co-ownership of water rights with the CSKT conveyed at the meeting does not realistically portray the actual legal uncertainty of whether a state may co-own state water resources with a tribe or the United States. That decision is not up to the state of Montana.

This is important for people to understand because the federal government always is the main title-holder of property or rights in trust for a Tribe.  That the CSKT are a government organized under the Indian Reorganization Act emphasizes this fact. Congress must make this decision, and evaluate the impacts of such a decision on the states.

Federal ownership of the CSKT water right is stated in the abstracts of the Compact located in the appendices, as the Tribes’ rights are described as “U.S. Department of the Interior, Bureau of Indian Affairs, in trust for the CSKT”.   Except the compact’s Milltown Dam abstract, which now says it will be co-owned by the CSKT at the effective date of the Compact. Importantly,   if this state-declared co-ownership of a water right even exists, then it belongs to the United States, not the CSKT.

It also appears that the state does not acknowledge that without Congressional and likely U.S. Supreme Court action,  there legally are no Indian federal reserved or other water rights off the Flathead Indian Reservation, no matter what the Compact says.  A Tribe can claim a water right anywhere, but history, law, the Treaties, the Courts, and Congress determine their geographic location and extent.

Whether intended or not, the practical result of the Compact is that the state invited the United States to co-own state waters off the reservation and across western Montana, including the Milltown water right, through the CSKT Compact.  But can the state legislature create federal jurisdiction where otherwise it would not exist?

There is no example anywhere in the United States where a tribe co-owns water with a state, and no example where a Tribe has water rights off its reservation. The Milltown Dam and other off-reservation water rights involving the CSKT are uniquely federal issues and their validity must be determined by Congress and the Courts, a very long time away. This context suggests that the Milltown Dam water right cannot be implemented using the authority of the CSKT Compact. It is a state law-based water right owned by the state and can only be implemented now pursuant to state law.

Suggestions in Lieu of the Far-Distant Congressional Ratification

 The state chose to implement portions of the CSKT Compact before Congress has considered or ratified it.  The portions they chose to implement involve uniquely federal issues—a co-owned water right off the reservation with the CSKT that is subject to Congressional approval, and attempted “adaptive management” inside the federal Flathead Irrigation project on the reservation which transforms irrigation water into a fisheries instream flow project.

A hearing conducted by the state on the change of purpose and point of use for the Milltown Dam water right would provide the opportunity to evaluate the impacts of the change of use on irrigation, and to develop information on and measures for addressing drought, surplus, or extreme conditions.  A part of this hearing should address the enforcement provisions of the right in the hypothetical case of United States co-ownership.

[1] Montana Reserved Rights Compact Commission, 2015 Proposed 2015 CSKT Compact Off Reservation Impact Analysis, February 2015. See pages 4-8. http://dnrc.mt.gov/divisions/reserved-water-rights-compact-commission/docs/off-reservation_impact_analysis_2-2015.pdf

Chief Water Court Judgeship Vacancy

This post is for general information purposes.  Please reference the press release below concerning the expiration of term for the Chief Montana Water Court Judge:

FOR IMMEDIATE RELEASE:  JUDICIAL NOMINATION COMMISSION SOLICITS APPLICATIONS FOR  CHIEF WATER JUDGE

Chief Justice Mike McGrath has notified the Judicial Nomination Commission that the term of office for the Hon. Russell McElyea, Chief Water Judge, expires July 31, 2017.

The Commission is now accepting applications from any lawyer in good standing who has the qualifications set forth by law for holding the position of Chief Water Judge.  The application form is available electronically at http://courts.mt.gov. Applications must be submitted electronically as well as in hard copy. The deadline for submitting applications is 5:00 p.m., Thursday, May 4, 2017. The Commission will announce the names of the applicants thereafter.

The public is encouraged to contact Commission members regarding the applicants during the public comment period, which will begin Friday, May 5, 2017, and close Monday, June 5, 2017.

The Commission will forward the names of three to five nominees to the Chief Justice for appointment after reviewing the applications, receiving public comment, and interviewing the applicants if necessary.  The person appointed by the Chief Justice will serve a four-year term subject to Senate confirmation at the next special or regular legislative session. The annual salary for the position will be $132,567.

Judicial Nomination Commission members are District Judge Richard Simonton of Glendive; Janice Bishop of Missoula, Karl Englund of Missoula, Elizabeth Halverson of Billings; Hal Harper of Helena; Lane Larson of Billings; and Nancy Zadick of Great Falls.

Here is the public information currently on the state website.  Updates including the lists of applicants can be found at this link.

CHIEF WATER JUDGESHIP VACANCY

1. Notice of vacancy from Chief Justice
2. Nomination and appointment schedule
3. News release soliciting applications
4. Application form
5. Applications and writing samples:
   • William Russell McElyea

To date, the only application posted for this position was from William Russell McElyea, the current Chief Water Court Judge.

Here is the timeline of events related to filling the vacancy:

Event	Date
Receipt of notice of vacancy from Chief Justice	Monday, April 3, 2017
Public notice of vacancy and solicitation of applications – (Within 10 days of receipt of notice of vacancy – 3-1-1007 (1)(b), MCA	Tuesday, April 4, 2017
Deadline for receipt of applications (Application period must be at least 30 days – 3-1-1007(1)(c), MCA)	Thursday, May 4, 2017
Notice to public and start of public comment period	Friday, May 5, 2017
Public comment period ends (Comment period must be at least 30 days – 3-1-1007(1)(d), MCA)	Monday, June 5, 2017
JNC selects interviewees (conference call)	Wednesday, June 7, 2017
Interviewees notified of interview date (At least 10 days before interview date —  JNC Rule 5.2)	Wednesday, June 7, 2017
JNC conducts interviews in Bozeman (if necessary)	Monday, June 26, 2017
Deadline for JNC to submit names to Chief Justice  (Within 90 days from receipt of notice of vacancy –  30101007(3), MCA	Sunday, July 2, 2017
Chief Justice (Montana Supreme Court) makes appointment	No deadline

 

Implications of the Wyoming and WOTUS Rulings for the CSKT Compact

©2017 Montana Land and Water Alliance

Our thanks to the Western Ag Reporter for publishing this article!

As we have reported in these pages, the CSKT Compact was never about settling the federal reserved rights of the Tribes, protecting culture, or protecting a fishery.  Instead, the compact represented a vast and obscene federal water grab disguised as an Indian water settlement.  Recall that the CSKT compact claims tens of millions of acre feet of water in western Montana on and off the reservation on lands that the Tribe ceded to the United States. The CSKT also claimed water rights on so-called “subsistence territory” in eastern Montana in which the CSKT were barred by the Judith River treaty and inter-tribal warfare from having a permanent presence.

Bear in mind that the extensive CSKT water grab was enabled by the state of Montana executive—specifically Governor Bullock and Attorney General Tim Fox–who took it upon themselves to reinterpret the Treaty of Hellgate and to ignore the legal “rules of the road” for federal reserved water rights quantification. This allowed the state, via Attorney General Fox,  to assert that the CSKT had more rights than regular Montana citizens who own land in fee and more rights than even the federal government had ever given Tribes.

Timing of EPA Aggression and CSKT Compact Not a Coincidence

Therefore, it was no coincidence that the CSKT Compact was introduced to the Montana legislature at the very same time that the Environmental Protection Agency (EPA) was expanding federal jurisdiction over water and land through aggressive Tribal “grant” programs like in Wyoming, and the issuance of the Waters of the United States (WOTUS) rule.   These federal actions in other states would have given the unlawful CSKT-federal water grab in Montana the illusion of “federal law” backing this compact, just like the CSKT Compact endorsement by the Attorney General gave the compact the illusion of  “state constitutionality”.  In fact Mr. Fox went so far as to say the private landowner’s Constitutional rights were diminished because they lived within the “exterior boundaries of the reservation”.

The WOTUS rule was thankfully negated by President Trump in an Executive Order, noting that federal agencies do not make law. The practical result of this action is that the states still retain their authority over the waters within their boundaries and the mandate to protect individual state water rights.

In the Wyoming matter, an air quality grant to the Wind River Tribes led to the assertion of jurisdiction over all activities on certain lands that were ceded to the United States and allotted under the various homestead and reclamation laws.    The Wyoming Farm Bureau—representing irrigators on those lands—had the legal standing to file suit and did so, eventually winning the case.   The Court said:

“We also find the Wyoming Farm Bureau has standing to sue on behalf of its members…..  In this case, some Farm Bureau members own farms within the disputed area and face the costs of complying with a new regulatory regime following the EPA’s decision…. Therefore, we find the Farm Bureau has standing to sue on behalf of its members.”

According to the Mountain States Legal Foundation press release, “exactly what kinds of problems did Wyoming farmers face?  Nothing short of the possibility that non-Indians would be sued in tribal courts that, under the Constitution, have no jurisdiction over non-Indians.  And the possibility that those convicted of crimes in Wyoming courts would be set free because of claims that the case should have been tried in tribal court.”

These very same problems are those now faced by thousands of Montana citizens affected by the CSKT Compact.  The vehicle for this assault on Montana citizens is the Compact’s proposed “Law of Administration”, wherein the state unnecessarily gave up its constitutionally mandated authority to protect and administer the water rights of its citizens and crippled the ability of Montanans to use both the state district and Supreme Court to seek remedies. In contrast to the Wyoming Farm Bureau, the Montana Farm Bureau also failed to recognize this reality and threw western Montana irrigators under the bus by supporting the CSKT compact.

Cede Means Cede—Title is Extinguished

The Wyoming Farm Bureau’s victory in defeating EPA’s land grab has implications for Montana and the CSKT Compact.  The Tribes—supported by the state of Montana—claimed not only that they had water rights on lands they ceded to the United States, but claimed ownership of water rights on private lands within the exterior boundaries of the reservation that were purchased and settled by homesteaders and others.  The CSKT have been compensated over and over again for these same lands, and after the allotment of lands through Article VI of the Hellgate Treaty and in 1904, the aboriginal title to those lands has been extinguished.  The court found in the Wyoming case that the word “cede” actually means “cede”:

“Our task is not to divine why Congress may have chosen certain synonyms over others in this particular Act.  We believe Congress’s use of the word “cede” can only mean one thing—a diminished reservation.  A review of several dictionaries from the turn of the twentieth century confirms that adding the words “sell” or “convey” would not materially change the intent Congress evinced in the 1905 Act.  And in any event, Article II of the 1905 Act includes the word “conveyed”.

Article I of the Hellgate Treaty confirms that the CSKT forever ceded and relinquished all title, rights, and interest in and to their aboriginal territory in western Montana to the United States.  But the first two recitals of the CSKT Compact completely negate this actual history, claiming water rights, fishery rights, and co-management rights for water on all those lands they ceded and were paid for. Remember that the CSKT threatened to file “10,000 additional claims” in eastern Montana if the compact was not approved by the legislature…and when it was allegedly approved, the CSKT filed the claims anyway.

Explanation Needed

Would it surprise you to know that at the same time the Montana Attorney General was pushing the CSKT water compact, he was also filing briefs in support of the Wyoming Farm Bureau  litigation and the states challenging the WOTUS rule?

In fact, on the very same day in February 2015 that the CSKT Compact was being heard before  the MT Senate Judiciary Committee and citizens were begging the legislature to protect their water rights, AG Fox was testifying before Congress that his job was “to protect the water rights of the state and the citizens of Montana”.

How can the Attorney General reconcile his actions against the federal overreach of WOTUS and in Wyoming with his unwavering support of the federal water grab represented by the  CSKT Compact?

Protecting Culture, Water, Sacred Sites?

©2017 Concerned Citizens of Western Montana

The months-long occupation protesting the Dakota Access Pipeline (DAPL) was supposedly about protecting water, Indian sacred sites, and culture…or so they told us.  Despite the Standing Rock Tribal Council’s approval of the project, thousands turned out to “protect” the water.

The result?

They left taxpayers with a $1 million dollar price tab for cleaning up the mess.

Reminds me of the yelling about the CSKT Compact—how it is about protecting culture, water, and sacred sites.  Gee, and how you were a “racist” if you didn’t support it.

the fact is the CSKT Compact has nothing to do with water rights, Indians, culture, fish, or the environment.  It is all about money for a small group of tribal elite and state officials who covet more power, political positions, and power over others. It seeks revenge for spite.

• Why would the state abandon its citizens?
• Why would your neighbors want to give away your water rights?
• Why would compact proponents insist on being hostile, accusatory, and emotional about the Compact?
• Why would the United States want to destroy its own federal irrigation project, and why would Jon Tester go further in enabling the complete destruction of the agricultural economy in the Mission Valley by the Tribes?
• Why would the state, knowing it has absolutely no authority in a federal irrigation project, continue to hoodwink the FJBC that “it will be around forever” and that in order to find out what’s going on, they have to be at the table?  As we indicated in an earlier post, read Appendix 3.5 to find out exactly how the state intends to destroy the Flathead Irrigation Project in favor of some “fishery” that doesn’t exist.

This compact has nothing to do with fish.

The blind supporters of the CSKT Compact—we know who they are–simply chose to believe a big fat lie. And after the hostility of our local representatives, it is even more apparent that they lack the intellectual capacity and moral foundation to understand theft when it bites them in the tail.

And why do people believe the BIG LIE, but have trouble with the small ones?

It is how evil works.