© 2023 Concerned Citizens of Western Montana
Note: We are not attorneys, nor do we propose to offer legal advice to objectors to the Flathead Water Compact Decree. We urge all objectors planning to participate in the mediation process to do their own homework before they engage in the process.
Upcoming Mediation Meetings
Based upon public announcements by the water court concerning the mediation process, we believe that it will take place in a variety of venues. Each session is confidential between the parties participating in the session, however it might be helpful to assume this may not be the case. Be guarded as to any information you choose to share with the mediator and / or the compact parties.
The tentative timeline for these meetings announced by the water court is as follows:
April 24-27: Zoom mediation information meetings will be held. Please note that only those parties who filed a timely objection in Case WC-0001-C-2021 will be permitted to participate in the mediation process. Each objector must attend ONE of the following mediation information sessions:
• Monday, April 24, 2023, at 10:00 am MST Or
• Tuesday, April 25, 2023, at 6:00 pm MST Or
• Wednesday, April 26, 2023, at 12:00 pm MST Or
• Thursday, April 27, 2023, at 2:00 pm MST
If you are unable to attend one of these meetings you are instructed to contact the mediator to make other arrangements.
You can find specific instructions for how to get into the Zoom Call via computer or by phone by clicking on this link
Click to access zoom.pdf
June 26: Missoula in person meeting
June 27, 28: Thompson Falls in person meetings
August 1, 2: Ronan in person meetings
August 3, 4: Kalispell in person meetings
September 11-15: Zoom meetings
You will very likely be notified directly concerning the meeting pertaining to you. You can email the Mediator at CM.WC@mt.gov
Preparing for Mediation
This information is not needed for the April 24-28 mediation information meetings, but is intended to get you started with preparing yourself for the actual mediation process that will follow..
As you read this article keep in mind that Water Court Case Management Order #2 specifies that the Mediation “is limited to issues relating to objections to the Compact and is not intended to cover issues relating to an Objector’s private state-based water rights.”
If you go into mediation prepared to defend your personal water rights, your arguments will not be considered. Your focus instead must be on the entirety of the Water Compact.
- Identify the Dispute – What is the dispute? THE COMPACT. The Fed’s / tribe on one side (defendants), and individual filers on the other (plaintiffs or petitioner).
- Do not focus on the compact’s illegalities as they pertain to your individual water rights. That is a distraction created for the purpose of dividing and conquering. The court and the mediator want you to focus on only the individual filing. RESIST.
- Objectors should stand in unity against the entire compact. If there is united focus on the Compact’s illegalities, everything else becomes moot. Every objector should object specifically to the Compact, as the dispute to be mediated.
- Demand that the dispute is the Compact itself, and resolution cannot go forward until the inequities and the vagueries of the Compact are discussed and resolved or declared unconstitutional.
- Objectors should demand that the Compact be declared unconstitutional and revoked. That is the issue to be mediated. None other.
- Objectors should stand their ground. Unless all of the illegalities, vagueries and unconstitutional provisions of the compact are corrected, there is no common ground upon which to “settle.”
- Prepare yourself for attempts by the mediator or the compacting parties to ask you for specific details of your criticism of the compact. Do not fall into that trap. It may be more effective instead to speak in general terms that the compact has a multitude of illegalities, and constitutional issues that have been ruled on by the various courts, and the serious issues with the compact cannot be resolved in mediation. Instead they must be heard by a judge in court.
- Don’t be caught off guard by any action taken by the water court or the parties to the compact during the mediation process. Keep your composure at all times, and be wary of the traps and snares that very well can be used against you.
- Seek to understand if there is a difference between a settlement and a withdrawal of your objection. If there is a distinction, ask clarification as to the differences between the two.
- If you choose to settle, you need to understand the implications of that decision.
1) According to Judge Brown, if you settle during the mediation process, you will reach a formal settlement agreement, and will have no right to appeal that settlement and will not be able to participate in the proceedings after that point, or participate any appeal efforts by others to join forces with respect to the Hearing Track of the proceedings.
2) You must seek assurance that any formal settlement agreement cannot be construed to be a consensual agreement with the tribe.
(For more information on Consensual Agreements, see the discussion below).
Unconstitutional Vagueness
A friend whose seen more than his share of mediation sent us this information that we would like to share with you.
I would not try to harp the separate fallacies in the Compact – to mediate around the fraud, over reach, reinterpreting/rewriting treaties and precedents, etc etc, in the compact, or the absolute unknown of Tribal conduct / actions / policies / plans in the future – but to just demand a halt to the Compact proceeding forward as being Unconstitutionally Vague.
There is a whole run of court cases that have been defeated on the basis of Unconstitutional Vagueness.
Here is a fairly good summary explaining the Vagueness Doctrine further:
A statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand.
This doctrine encourages government to clearly distinguish lawful conduct from that which is unlawful. Under the Due Process Clauses of the Constitution, individuals must be given adequate notice of their legal obligations so they can govern their behavior accordingly. When individuals are left uncertain by the wording of an imprecise statute, the law becomes a standardless trap for the unwary.
There are several reasons a statute may be considered vague; in general, a statute might be void for vagueness when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed.
For example, criminal laws which do not state explicitly and definitely what conduct is punishable are void for vagueness.
A statute is also void for vagueness if a legislature’s delegation of authority to judges or administrators is so extensive that it could lead to arbitrary prosecutions.
A great example is the Unitary Management provisions in the compact.
In the case of people living within Flathead Reservation boundaries, the Montana legislature delegated its authority over water to the Board of Administration that essence is the enforcer of the tribal water right.
If someone uses their deeded water rights — in violation of the Board of Administration, what is the criminal charge? If this does not constitute Constitutional Vagueness, what does?
Could a Mediation Settlement be Considered a Consensual Agreement?
We are not attorneys, and cannot possibly know of the legal nuances as to how all of these moving parts work together, but we have to ask whether or not a Mediation settlement with the tribe could be considered a Consensual Agreement?
If you are considering the possibility of “settling” during the mediation process the issue of Consensual Agreements is A MUST ASK QUESTION.
A consensual agreement with a tribe is NOT a civil contract, and does not necessarily fall under the governance of contract law. It is unique to itself, and thus uniquely vague and shares a ‘sisterhood’ with Unconstitutional Vagueness doctrinal law.
We strongly urge you to look into the jurisdictional issues with respect to ANY agreement made with the tribes for your own legal and due process protection.
If a settlement that comes out of the mediation process can be construed as a consensual agreement with the tribe, you could unknowingly be consenting to their jurisdiction, up to and including going to tribal court for resolution of any future water disputes.
While it may be tempting to consider working with the tribe on a consensual agreement, we’d like to provide you with information that may give you good reason to consider declining their “generous” offer.
What is a Consensual Agreement?
Over 30 years ago, the U.S. Supreme Court created two exceptions to the general rule that Indian tribes cannot exercise civil jurisdiction over nonmembers in Montana v. United States, 450 U.S. 544, 565–66 (1981). The first of the two Montana exceptions, also known as the “consensual relationship” exception, establishes that a tribe may regulate the activities of nonmembers entering consensual relationships with the tribe or members thereof through “commercial dealing, contracts, leases, or other arrangements.” Methods of such regulation include “taxation, licensing, or other means.”
Source: https://www.americanbar.org/groups/business_law/publications/blt/2017/04/01_speirs/
This essentially means that by signing a consensual agreement with the tribe, you most likely are agreeing to submit to their jurisdiction, up to and including going to tribal court for resolution of any disputes.
The tribe is well known for promising to do the right thing, and then reneging on that promise later.
So what happens if you sign a consensual agreement with the tribe and at some future date you are out of favor with the tribal government, or you disagree on the terms and conditions of the agreement and the tribe decides to ignore the agreement and call your water?
Because the Montana Water Use Act no longer applies on the reservation, you have no recourse through the state courts to resolve or adjudicate this issue, or to recover damages from the tribal default on your contract. That leaves either the expensive United States or biased CSKT Courts as the only venues for litigation.
Keep in mind you signed a contract with a tribal government that you have no rights in, nor are you able to participate.
And then there is the issue of subject matter jurisdiction of the federal courts:
Contracts with Indian tribes should specify a venue for disputes arising from those agreements. A common mistake for attorneys drafting agreements involving tribes is to assume that federal courts automatically have subject matter jurisdiction over matters involving Indian tribes. In fact, the presence of an Indian tribal party in litigation invokes neither diversity nor “arising-under” federal jurisdiction. Contracts often specify a federal court as the venue for disputes, likely because tribal parties sometimes distrust state courts and non-tribal parties may distrust tribal courts, so federal court seems like a neutral choice.
However, experienced Indian law attorneys know that federal courts generally lack subject matter jurisdiction over contract disputes and will summarily dismiss such actions. As a result, litigants may unexpectedly find themselves in state and tribal courts. In fact, state courts increasingly defer to tribal courts when such courts have jurisdiction and may dismiss in favor of tribal court as a matter of comity.
Source: https://www.natlawreview.com/article/illusion-federal-jurisdictiontribal-contracts