© 2022 Concerned Citizens of Western Montana
This article pertains to people living within the exterior boundaries of the Flathead Reservation, whose water and property rights, and the legal framework necessary to protect and defend them, or even to request new uses of water, has been abandoned by the state of Montana. The Unitary Management provisions within the Flathead Compact have already placed 30,000 people in a jurisdictional black hole that they may never be able to crawl out of.
We will attempt to explain how the state rationalized its abandonment of its citizens through their agreement to what they called the GRAND BARGAIN, nonchalantly mentioned by Chris Tweeten at a Compact Commission meeting on August 2, 2012:
“…. Jay (Weiner) talked about pushback from the tribe at some point about what they’re being asked to give, and I think, that in addition to the point that Jay made, the response is to remind the tribes about the Grand Bargain, and the fact that we agreed to do this extraordinary thing, frankly, with respect to agreeing to subject or to remove non-Indian rights on the reservation from the jurisdiction and control of the state, and place that somewhere else at the tribe’s request….”
But before we begin the analysis of our current situation, we want to provide you with some contextual and historical information.
Counting Our Water Blessings
In western Montana, we are blessed with an amazing abundance of clear, clean water.
There is more than enough water to address the current needs of the 360,000 people living here, including the CSKT, and more importantly there is more than enough water for future growth and development.
In 2014 the Department of Natural Resources and Conservation (DNRC) published the Clark Fork and Kootenai River Basin Water Plan. In this booklet, the DNRC looked at the demographics of western Montana, as well as future growth projections. It also breaks down the major sources and volumes of water in western Montana, as well as current uses of water.
Here is a table summarizing some of this key information pertaining to the Flathead, Clark Fork and Kootenai Rivers:
According to the statistics provided by Montana’s Department of Natural Resources and Conservation, only 2% of the water in western Montana is consumptively used. That means most uses of water in western Montana are non-consumptive, and the water used is returned back into the water supply before it ever leaves the Flathead Reservation or the state of Montana.
There is absolutely no need for anyone to lose a drop of water, yet the CSKT Compact reduces irrigation uses on the Flathead Reservation by an astounding 20-74% depending upon location and duty of water. Future growth and development in all areas of western Montana is in jeopardy under the weight of the massive amounts of preclusive time immemorial water rights for “fish and wildlife” awarded to the CSKT in the Compact.
To put this in perspective, the CSKT have publicly claimed that their tribal water rights have suffered from two principal stresses,
1) the construction, operation and maintenance of the (Flathead Irrigation) project has degraded their natural resources and
2) that ongoing development has substantially diminished reservation riparian and aquatic habitats.
The Flathead Compact effectively addresses the tribe’s “stressors” by putting the skids on irrigation and development. We are already seeing signs that the Flathead Water Management Board has taken its marching orders to heart and is thwarting new well requests and development projects. Rumors also abound about the possibility that stock water will no longer be available through the Irrigation Project.
There is little doubt that under the auspices of an unaccountable, tribal controlled water board, the local economy within the Flathead Reservation will suffer a slow, painful death, and as requests for the water necessary for land and business development are turned down, one by one, property values will also be diminished.
Is it possible that Montana didn’t do economic impact studies on the compact because they needed to have plausible deniability pertaining to their ill conceived and overreaching compact?
CSKT et al v. Montana et al
In 1981, the CSKT filed a lawsuit against the state of Montana seeking to enjoin the state from adjudicating the tribe’s federal reserved water rights as authorized by the 1952 United States McCarran Amendment, which waived the sovereign immunity of the United States as a defendant in general stream adjudications.
Defendants named in the lawsuit included Montana’s Attorney General, Director of DNRC, the Clark Fork River Basin Water Court Judge, and each of the Montana Supreme Court Justices.
In their complaint, the Plaintiff tribes demanded a judgment from the court:
- Declaring that the State of Montana has no jurisdiction to apply, administer or enforce the Montana Water Use Act, as amended, directly or indirectly, within the Flathead Indian Reservation, or with respect to waters that arise upon, flow through or under, border, or otherwise occur on that Reservation, or with respect to the plaintiff Tribes or any of their members;
- Enjoining, preliminarily and permanently, the defendant State of Montana and each of the individual defendants herein , and their employees, subordinates, attorneys or agents from taking any action which would have the effect, directly or indirectly , of applying, administering or enforcing the Montana Water Use Act, as amended, within the Flathead Indian Reservation, or with respect to the waters that arrive upon, flow through or under, border, or otherwise occur on that Reservation , or with respect to the plaintiff Tribes or any of their members;
- Enjoining, preliminarily and permanently, the defendant State of Montana and each of the individual defendants herein, and their employees, subordinates, attorneys or agents, from issuing any permits for any use of waters arising upon, flowing through or under, bordering, or otherwise occurring on the Flathead Indian Reservation;
- Declaring that any and all water use permits previously issued by the defendant State of Montana or any of the individual defendants herein, or any of their employees, subordinates, attorneys or agents with respect to the waters arising upon, flowing through or under, bordering, or otherwise occurring on the Flathead Indian Reservation, are null and void, and enjoining the exercise by any permittees of any rights purportedly conferred by those unlawful permits;
Montana pushed back against the tribe in their response to the complaint, specifically addressing the issue of limitations to the tribe’s water rights, their priority dates and asserting the State’s jurisdictional authority. In 1981, by all appearances Montana was soundly rooted in the framework of the Winter’s Doctrine with respect to the quantification of the tribe’s federal reserved water rights:
The defendants admit that the Treaty of Hell Gate of July 16, 1855, impliedly reserved to the plaintiff Tribes the right to use water for uses reasonably related to the purposes for which the Reservation was established. Winters v. United States 207 U.S. 564 (1908), Cappaert v. United States, 426 U.S. 128 (1976). The defendants refer to this water right as a “reserved water right.”
The defendants acknowledge that the priority date for this right is 1855. The defendants further acknowledge that by virtue of this priority date, the Tribes have the first right to the use of waters on the Reservation for uses reasonably related to the purposes for which the Reservation was established.
Rights subsequent in time, whether by reservation or appropriation, have a later priority date.
The defendants do not in any way assert jurisdiction over the Tribes, or ·over the property of individual members of the Tribes owned by them or their Reservation. The defendants acknowledge that, without a waiver of sovereign immunity, such jurisdiction may not be obtained.
The defendants do however assert jurisdiction pursuant to the Montana Water Use Act over the SURPLUS WATERS flowing through and touching upon the Reservation…..
….. The State of Montana and other defendants contend that to grant the Tribes’ preliminary injunction will irreparably harm the State and its citizens. The Montana Water Use Act provides the backbone and skeleton to the water users of Montana – a means by which water rights may be made more certain, and, if necessary, enforced, one against another. The injunctive relief sought by Plaintiffs would remove entirely that old skeleton, and would not replace it with anything. This litigation and other related cases may go on for years, and, until resolved the preliminary injunction would remain in force. This would leave Montana and its citizens completely bereft of a statutory scheme to control the creation and existence of water rights or to give any guidance to water users.
Montana’s surplus (non – reserved) waters cannot be protected or regulated by the Tribes. The issuance of a preliminary injunction prohibiting the use of these waters by anyone but the Tribes (and their members) would leave these waters vulnerable to appropriation by downstream users pending the outcome of this litigation.
Finally, as discussed above, the issuance of the preliminary injunction sought by the Tribes would deprive those who claim the right to use water under Montana law of valuable property rights. Although the Tribes would be incapable of actually using or consuming these surplus waters, non – members would be required to allow their crops to wither and their livestock to die, merely because a federal Court accepted as true the Tribes’ baseless allegations.
How is it Montana understood these things in 1981, but 41 years later it wholly supports, and is prepared to defend a water compact that surrenders the State’s constitutionally mandated jurisdiction over those very same water rights?
Why was State jurisdiction over them necessary in 1981, but is now abandoned?
Surplus (Non-Federal Reserved) Water
The 1981 lawsuit was our first introduction to the notion of SURPLUS WATERS within the reservation.
Montana asserted its jurisdiction over the “surplus (non-federal reserved) water,” within the reservation boundaries for the simple reason that there is more than enough water to provide for the tribe’s federal reserved water rights and the needs of everyone else.
Over the next 40 years, Montanans had every reason to believe that Montana would do all that it could to protect its own interests, and the water rights and property interests of its citizens. After all, the Montana Constitution confirmed all existing water rights and mandated state jurisdiction over the water.
Because the subject matter of the 1981 lawsuit appeared to be within the framework of the Winters Doctrine, no thought was given to CSKT water rights outside the boundaries of the Flathead Reservation, and with an abundance of some of the best water in the world for everyone living within the historic boundaries of the reservation, Montana moved forward with the adjudication process.
The Ciotti Decisions
In the 1990’s, the tribes were able to accomplish what their 1981 lawsuit did not.
A series of lawsuits initiated by the tribes against the state of Montana were the foundational beginning of the end of state jurisdiction over water within the reservation boundaries.
Because Montana law at the time required the applicant to show that the new use or change in diversion would not interfere with a use for which water had been reserved, the Montana Supreme Court ruled in 1996 that this burden could not be met until the state knew how much water was available, and how much water was reserved by all parties. Thus, the DNRC was precluded from granting any new water permits until Tribe’s water rights were quantified.
While this court-imposed stay was considered to be temporary, 26 years of new water use permit applications for properties located within the boundaries of the reservation remain unprocessed and have never been approved by the state. To the best of our knowledge the state did not keep a public database concerning these rights in order to ensure their protection until the tribe’s water rights were quantified and they could be approved.
Unfortunately for the landowners who submitted these permits, they seem to have long been forgotten by the State. It is a fact that these unprocessed water use applications were not considered by the Montana Water Court for the initial objection notifications related to the Flathead Compact Decree.
Additionally, as properties have changed hands over the years, many newcomers very likely know nothing of their existence, making it difficult for people to object to the compact’s impact upon a publicly invisible claim that may or may not be on file with the DNRC, and may never be approved.
With the compact now in effect, Montana no longer has jurisdiction to approve those applications. This makes it likely they will never be approved by the state of Montana unless the state attorney general or the legislature intervenes. Even that may not be enough to right this horrible wrong.
It is yet to be determined whether the Flathead Water Management Board will approve these applications at some point in the future. This makes it impossible to fully grasp the potential impacts to the area if these permits are never approved.
The Tribe’s 2001 Proposal
In 2001, things went from bad to worse when the CKST submitted a Compact Proposal to the State, laying out the following non-negotiable requests:
- All water on and under the Flathead Indian Reservation is owned by the United States in trust for the Confederated Salish and Kootenai Tribes.
- The negotiation process will focus on the development of a comprehensive Reservation-wide Tribal water administration ordinance, which will apply the seniority system and protect the unique federal attributes of Indian reserved and aboriginal rights.
- The Negotiations will also include other issues pertaining to the tribes reserved and aboriginal water rights including
- Off reservation reserved and aboriginal consumptive and non-consumptive water rights that derive from their time immemorial use and habitation of a vast aboriginal territory in Montana and elsewhere.
- A final settlement of the tribe’s claims that is structured to promote economic efficiency and tribal self-government and containing cost-sharing by the state and federal governments.
Reading through this list of the tribe’s demands, one can’t help but wonder what the Montana Reserved Water Rights Compact Commission (MRWRCC) spent the last 40 years negotiating?
Montana could have saved everyone a lot of time and money by simply joining the tribe’s 1981 lawsuit, because 40 years later, the Compact delivered exactly what the tribes demanded in their 1981 lawsuit and 2001 proposal.
In what kind of negotiation does one party get every one of the marbles? What could Montana have possibly received in return for ceding all that water to the US / CSKT to the detriment of 1/3 of its population, as well as its constitutionally mandated jurisdiction over it?
Surely they couldn’t have been THAT afraid of litigation. Even if they were, why didn’t they man up and do the right thing by dropping negotiations and letting the chips fall where they may?
But that’s not what happened.
Once Montana agreed to the tribe’s demands, the “negotiations” were little more than smoke and mirror dog and pony shows, used as a platform to publicly rationalize their capitulation. The Compact Commission also frequently used scare tactics about people having to hire a lawyer to protect their water rights, unless the compact was ratified. And here we are, many folks are having to hire an attorney to write an objection against the state’s complicated compact monstrosity and legal nightmare.
Surplus Water Mathmatics
Again, in 1981 Montana asserted its jurisdiction over the surplus water. In 2021, Montana officially ceded its jurisdiction over water within the reservation boundaries when the compact became effective. For all intents and purposes, the Montana Water Use Act no longer applies within the reservation boundaries.
The Unitary Management Ordinance found in Appendix 4 of the CSKT Water Compact says the following:
Upon the Effective Date of the Compact, this Ordinance shall govern all water rights, whether derived from tribal, state or federal law, and shall control all aspects of water use, including all permitting of new uses, changes of existing uses, enforcement of water right calls and all aspects of enforcement within the exterior boundaries of the Flathead Indian Reservation. Any provision of Title 85, MCA, that is inconsistent with this Law of Administration is not applicable within the Reservation.
When pairing the reality of the Flathead Compact’s Grand Bargain with the tribe’s mantra of their ownership all the water flowing through, over, and under the reservation, a reasonable person can only conclude that the hundreds of pages of water abstracts written into the appendices of the compact were intended to ensure that there is no surplus water on the reservation for the State to administer.
In other words, it is highly likely that Montana gave all the water flowing through, over and under the reservation to the tribes.
This takes us back to the Compact Commission comments at multiple public meetings that we never owned the water right in the first place. It was as though they were declaring that the people who settled within the reservation with the invitation of the federal government are little more than squatters on the tribes land. Worse than that, they have been using “the tribe’s” water, while at the same time degrading “the tribes” natural resources, and diminishing the “reservation’s” riparian and aquatic habitats over the last 100 years.
That is exactly what the $1.9 billion in settlement money was for.
None of this is true of course, but it matters not when the end result of the compact could indeed make us little more than squatters.
This does not bode well for the hundreds or perhaps even thousands of post Ciotti, unapproved water use permits, the post 1973 water rights permit applications that were approved by the state, nor the yet to be adjudicated pre-1973 water rights in Basins 76L and 76LJ.
We can’t urge you strongly enough to take the time to sit down to research how the CSKT compact including the Unitary Management Board will affect your water rights, and to prepare an objection and request a hearing with the water court.
We also urge you to file a request for an extension to give you the time necessary to complete a solid, well thought out objection.
If you have any further questions about filing an objection, feel free to contact us through the CONTACT page of the blog.
Thanks for your time.
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