© 2023 Concerned Citizens of Western Montana
This article brings into focus the mutual defense provisions of the compact, as evidenced by the extremes that the compacting parties are willing to go to in order to protect the Flathead Water Compact. Translated–how far the state will go to protect the “water rights” of the CSKT?
We have long maintained that the 10,000 claims filed by the United States / CSKT in June 2015 were intended to be a weapon to wield against the people of Montana to ensure that the Flathead Water Rights Compact is cemented into perpetuity.
Indeed, at the time these claims were being threatened many of the hydrologic basins in eastern Montana were pretty much adjudicated. To this day the 10,000 claims still represent a threat that could force the reopening of the water rights adjudications in eastern Montana, and wreak havoc throughout the state.
Eastern Montanans and the state’s ag groups such as the Farm Bureau and Montana Stockgrowers, and even the Montana Water Resources Association couldn’t get in line fast enough to support the CSKT Compact in lieu of the 10,000 claims.
Unfortunately for these useful idiots, recent documents filed with the Water Court by the State Attorney demonstrate that the 10,000 claims remain a serious threat to the people of Montana.
Adding to that concern is the fact that the state’s Department of Justice and Water Court seemingly have gone around the Montana legislature, and already have perfected and successfully tested an avenue that could very well usher these claims into a water rights nightmare that could never be resolved.
Bad Faith Negotiations
In 2001, the CSKT presented a settlement proposal to Montana. Their “non-negotiable” demands included:
- All water on and under the Flathead Indian Reservation is owned by the United States in trust for the Confederated Salish and Kootenai Tribes. (NOTE: The CSKT Compact accomplishes this, and this explains why there is no quantification)
- 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. (NOTE: This is the Unitary Management, which it is not intended to protect everyone’s water rights. The compact proposes to make those living within reservation boundaries users of the tribal water right.)
- The Negotiations will also include other issues pertaining to the tribes reserved and aboriginal water rights including: A) 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 (NOTE: Part of this is in the CSKT Compact and also the 10,000 claims), and B) 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.
While the demands in this proposal are ludicrous on their face, because “tribal reserved rights” do not legally exist nor do “aboriginal” water rights per se, the resulting compact and its appendices and perhaps even the content of the 10,000 claims is clear evidence which shows that Montana agreed to every unlawful and unreasonable request of the CSKT. Montana gave away far more of its water resources to “the tribes”–really, to the United States, than was lawful.
By 2004 the Compact Commission hired attorney Jay Weiner. We believe his hiring–and continued presence in state government-was for the purpose of “closing the deal” on the expansive and precedent-setting CSKT Compact. While working on the compact for the state of Montana, he concurrently held and still holds what he called a “day job,” working for Rosette LLP, a leading majority-Indian owned national law firm representing tribal governments and tribal entities.
From that point forward it was full steam ahead for the Flathead Compact.
By all indications, Weiner’s responsibilities were to white wash and sanitize Montana’s failure to protect its own interests and those of its citizens, and to invent develop legal legs to rationalize the state’s capitulation in order to move the compact forward.
The Reserved Water Rights Bait and Switch
Although Montana’s leadership was on board with the Compact, legislative ratification would be a more difficult hurdle to overcome.
The Compact Commission accomplished this by changing their terminology as well as the narrative.
Instead of talking about Federal Reserved Water Rights and the tribe’s 2001 proposal as being a non-starter, the discussion changed to “Tribal Reserved Water Rights”, or to confuse things even further they simply used the vague term “Reserved Water Rights.” Bear in mind that the words “tribal reserved rights” were always considered the Indian portion of “federal reserved water rights and thus the terms were used interchangeably. The compacting parties willfully changed the meaning of the term “tribal reserved rights” after arguing in court for years as they were similar terms.
Don’t forget that when the Compact Commission was created by the Montana legislature in 1979 it was only authorized to quantify and resolve the Federal Reserved Water Rights for the Indian reservations in the state pursuant to the McCarran Amendment.
This was made abundantly clear in the state’s response to a 1981 lawsuit filed by the CSKT against the state of Montana which was filed to prevent the state from quantifying their Federal Reserved water rights.
Born out of the 1908 U.S. Supreme Court Winter’s Decision, federal reserved water rights pertain to a discrete amount of water necessary to fulfill the purposes for which the United States reserved the land. As such, these water rights carry a priority date of the date the United States reserved the reservation. The Flathead Reservation water rights are supposed to carry an 1855 priority date. [Note: the Hellgate Treaty was actually ratified by the Senate and signed by the President in 1859].
The water rights claims in the compact as noted in the chart above are proof that the Flathead Compact did not benefit individual tribal members. The compact water rights are exclusively TRIBAL RESERVED WATER RIGHTS for fisheries. The compact includes NO FEDERAL RESERVED WATER RIGHTS for the needs of the tribal membership.
This begs the question as to whether the compacting parties had any authority to create water rights with a priority date that precedes their own existence and the Treaty, and by definition which neither the state or the federal government have jurisdiction over.
To further obfuscate things the compacting parties conspired to hide the extent of their overreach by failing to provide a quantification of the amount of water ceded to the United States / CSKT in the compact.
These things were not oversights. They were intentional. And Montana willfully participated in this deception and fraudulent activity.
Enter the Threat of 10,000 Claims
Although the details of the compact had been decided for nearly a decade, between 2012 and 2014 the parties to the compact participated in arguably phony, scripted public “negotiation sessions.” It was always clear that no “negotiation” was taking place at these meetings. Instead, the meetings were used as an opportunity to feed the public their artificially crafted legal arguments and talking points.
As the compact got closer to the legislative finish line, the parties began to talk about the fact that if the compact wasn’t ratified, every water user in western Montana would have to hire a lawyer to protect their water rights. The state, as a party to the negotiations, was unwilling to step in to protect the rights of its citizens.
The compacting parties often cited the threat of 10,000 claims being filed by the United States / CSKT should Montana legislature fail to ratify the Compact. Here is a prime example:
“And that’s what I want to talk to you about a little bit because we heard the history on how we got to where we are today. Well here’s how we finally get to where we hope to get. The legislature, the Montana legislature passes this compact, this session because if it doesn’t, based upon the state’s own water laws, the tribes have no choice but to file their water rights claims, so they would file them for both on reservation and off reservation waters. That’s not a threat, that’s just a fact. That’s what the state law requires the tribes to do and we always want to follow state law. So that’s the game we’ve been playing, and that’s the game the compact commission’s been playing, and the game the United States has been playing. Follow state law. To the extent it’s not inconsistent with federal law, and this is not a threat, it’s a simple fact. Either everybody in this room is going to walk away with the compact at the end of the legislative session, or a few months later the tribes will have filed their claims which will include areas that have already been adjudicated within the state which will impose significant costs on the water court system and DNRC to reopen the basins that already have preliminary decrees on them.”
Source: Partial transcript of statement made by John Carter, Tribal Attorney at September 03, 2014 Compact Commission “Re-Negotiation” meeting held in Missoula Montana.
The Montana legislature ratified the compact in 2015, but contrary to Carter’s declaration, the 10,000 claims were filed anyway.
It’s notable that the U.S. and CSKT could and should have filed what were even then considered overreaching Flathead Compact Claims in June of 2015. But they opted to wield a much larger threat by filing the 10,000 claims covering 2/3 of the state of Montana instead.
We believe this was done for the purpose of having a legal foot in the door to control over the water of nearly all of the population of the state of Montana.
After filing these claims, the United States and CSKT immediately set the wheels in motion to extend the Ciotti decision stay that had been in place since 1996, by having the Water Court continue a stay on the adjudication of all claims in basins 76L (Flathead River below Flathead Lake) and 76LJ (Flathead River to, and including Flathead Lake).
The 10,000 Claims are Immortalized in the Compact
Not many people will remember that there were two versions of the compact issued in early 2015.
The first was a 01/07/2015 version that was released to the public without appendices ahead of public meetings held by the Compact Commission in Ronan and Kalispell.
Five days later on 01/12/2015, a second version of the compact was issued just a few hours ahead of the Full Compact Commission meeting held in Helena where the Commission voted to move the compact forward to the Montana legislature.
Being suspicious of two compacts being issued less than a week from one another, we reviewed both documents to see what changes were made from one version to the other.
Notably, a paragraph about the 10,000 claims was inserted into the January 12, 2015 version of the compact under Article VII.C.1. (emphasis ours):
The United States, the Tribes, and the State shall execute and file joint motions pursuant to Rule 41(a), Mont.R.Civ.P., to dismiss without prejudice any and all claims of the Tribes, Tribal members, and Allottees and any and all claims made by the United States for the benefit of the Tribes, Tribal members, and Allottees that have been filed in the Montana Water Court as contemplated by Article VII.D.2. The case adjudicating those claims may only be resumed if either the State or the Tribes exercise the rights each holds under Article VII.A.2 and 4;
This insertion into the compact could not have been made without the knowledge and approval of all three compacting parties, and demonstrates the level of commitment and the extent of fraudulent means that were used by the three government parties to protect their compact agreement.
The effect of dismissing the claims WITHOUT PREJUDICE virtually ensures that they will plague the people of Montana forever into the future, no matter what happens with the Compact.
This short paragraph inserted into the compact at the very last minute connects the 10,000 claims to the compact in such a way that they continue to be used as a threat to ensure the compact makes its way through the whole process, up to and including the Montana Water Court.
Why did Montana agree to approve a settlement that was touted to be a “final resolution of the tribe’s and U.S. water rights” that instead included language that effectively insures generations of future litigation affecting 975,000 people over 2/3 of the state?
Do the actions of the three compacting parties arise to the level of fraud, overreach, and collusion?
Is the End Game the Compact, or is it the 10,000 Claims?
Nearly 8 years after the 10,000 claims were submitted to the state, they remain hidden from public view.
Unbeknownst to the public, Montana has successfully kept these claims out of the 51 various adjudication proceedings currently going on in the Montana Water Court. When a state legislator wanted to mandate that the DNRC make these claims public, Steve Daines stepped in to squash the effort.
For as much as we’ve known that one of the intended coercive effects of the 10,000 claims was to get the Flathead Compact over the Water Court finish line, we now believe that something more is at stake here.
We think it’s possible that the end game may not be the Flathead Water Compact, but rather it could also be the 10,000 claims.
In January we reported that a state attorney used the 10,000 claims as a threat to the Montana Water Court in their Brief in Support of an extension of the stay of adjudication on all claims in Basins 76L and 76LJ.
The state’s brief wielded the 10,000 claims threat in spades (please read this carefully):
Should the stay be lifted prior to the Compact’s final decree by the Water Court, the implications stretch far beyond the boundaries of Basins 76L and LJ, because the adjudication of the more than 10,000 claims filed in 51 adjudication basins on behalf of the tribes would also have to proceed. (APS Decl., ¶ 8.)
If adjudicated by this Court, the Tribal claims would presumably be considered prima facia proof of their content and would therefore be decreed “as claimed” in a similar fashion to how this Court recently issued the Turtle Mountain Band of Chippewa claims, which were filed in trust by the United States Department of Justice. Id., ¶ 11. Such a large-scale, unexamined decree process across 51 of Montana’s 85 basins would present a serious risk to current senior water users who have invested heavily in defending their water claims, and many of which have been decreed previously by this Court. Ibid.
First and foremost, the potential exists that this brief could very well have a coercive influence the Water Court’s judicial review and decision related to the Flathead Water Compact Decree that is currently underway. Could the Water Court be swayed by these serious issues to approve the compact in order to avoid the devastating impact of the 10,000 claims as described by Mr. Vanisko in his brief? Isn’t this the very definition of coercion?
There also is the possibility that something even darker than that is going on.
Is it possible that the state could use their Turtle Mountain roadmap to allow the 10,000 claims to be “decreed as claimed in an unexamined decree process” should the compact be given a thumbs down in the Water Court?
Montana, it’s time to wake up!!!!!
Did the Turtle Mountain / Little Shell Adjudication Pave the Way for the 10,000 Claims?
In 2021, an article appeared in Montana newspapers touting that the Montana Water Court Decides Tribal Water Rights in First-Of-Its-Kind Decision.
“The order by Chief Water Judge Russell McElyea represents the first time the Montana Water Court has reached resolution on tribal reserved water rights outside of a negotiated compact like the Confederated Salish and Kootenai Tribes water compact, which took more than a decade to reach ratification by the Montana Legislature, U.S. Congress and, late last year, the tribes. The CSKT water compact also has a fiscal component — the creation of a $1.9 billion trust fund dedicated in part to rehabilitation of the Flathead Indian Irrigation Project — whereas there’s no such allocation involved in the Montana Water Court’s final decree on the Chippewa claims.
The article goes on to say
“I hope it’s the first step in a tidal wave of similar such decisions,” McElyea said in an interview. “Doing this is kind of like the first space flight to Mars. You can anticipate some of the problems that you’re going to encounter, but you can’t anticipate them all. We’ve tried to think hard about what issues might arise when the final decree is issued and deal with those in the decree itself for the sake of bringing finality to this process.”
McElyea said he hopes having the first such case decided will establish momentum for similar claims. According to a press release issued by the Montana Water Court, more than 80 decrees covering about 250,000 water rights are awaiting adjudication by the court.
According water court brief mentioned above, Montana seems to be inclined to make McElyea’s dream come true.
The Turtle Mountain / Little Shell water rights adjudication did not follow the law as was intended by the Montana Legislature when it created the Federal Reserved Water Rights Compact Commission in 1979 to negotiate water rights settlements with the tribes.
We can’t help but question whether the process used to adjudicate the water rights of the Turtle Mountain / Little Shell Tribe was legal, but how is it that instead of questioning the legality of circumventing the compacting process, the chief Water Court Judge at the time fawned all over it?
Does this mean that all the feds have to do is come up with spurious claims and submit them to the water court to have them adjudicated?
Mr. Vanisko made it clear that the 10,000 claims would presumably be considered prima facia proof of their content and could be decreed “as claimed” just like the Turtle Mountain / Little Shell Tribes. He also indicates that the Turtle Mountain / Little Shell Tribe’s claims were unexamined but decreed anyway.
If the CSKT are successful in laying any sort of dubious legal claim to water rights in their “subsistence range,” every tribe in the United States will follow suit.
If the Water Court gives a thumbs down to the compact, will the parties to the compact move to decree the 10,000 claims instead?
Why is Montana pushing the federalization of its water? Is it the Waters of the United States Rule (WOTUS)?
Could it be as simple as free federal money, or is something else going on here?
Why isn’t Montana protecting its own interests, as well as those of its own citizens?