©2018 Concerned Citizens of Western Montana
Montana’s Approach to Indian Water “Settlements”
After decades of calling the CSKT demands for 1) all the water flowing on over, and under the reservation 2) off reservation “indian reserved” water rights and 3) unitary administration of that water “non-starters”, the people of Montana were comfortable that their water rights were being protected by the state through the Montana Reserved Water Rights Compact Commission.
Over the years, Montanans began to pay little attention to state water rights “negotiations” with the Confederated Salish and Kootenai Tribes. They had no idea that In the early to mid-2000’s, the compact commission made the decision to cave in to the CSKT’s decade long unreasonable demands by agreeing to cede:
- All of the water flowing through, over and under the (diminished) Flathead Indian Reservation,
- Off Reservation water rights to vast volumes of off reservation water including all of Flathead Lake,
- Bare legal title to 100% of irrigator’s water in a federal irrigation project and
- Ceding its constitutionally mandated jurisdiction over all that water
Once they were “in”, the state then hired an attorney to make their capitulation more palatable to the public. This was accomplished by creating the necessary talking-points, developing a “legal legs” rationalization for what clearly would be an unconstitutional taking and putting lipstick on the tribe’s unreasonable claims by declaring them “colorable” under the law.
At some point in the process they also made a conscious decision to provide no “quantification” of the volume of water to legislators or the public or any studies of its impacts on the economy of western Montana.
As of the writing of this post, the state still has not provided an official volume of water. To note, at a Clark Fork Basin Management Taskforce meeting in 2011, the following discussion took place:
Comment – I have heard a rumor that the compact will not quantify the CSKT reserved water right. Without quantification, I am unsure how adverse affect will be determined…. Will the compact specify or cap the flow and volume of the CSKT reserved water right?
Answer by Jay Weiner – Maybe. This is a complicated issue. If the reserved right is quantified numerically (either by volume or flow rate), it will likely be larger than the available supply.
Here is a copy of the state’s non-quantification “quantification” given to Montana legislators ahead of their vote on the compact in 2015: Chas Vincent Legislator Package: Quantification
Adding insult to injury, state attorneys also worked in concert with the CSKT to develop what they thought to be a bullet proof document, placing negatively impacted property owners in a legal straight jacket while at the same time giving themselves immunity from any damages.
There is little doubt Governor Steve Bullock and Attorney General Tim Fox believed this settlement to be the finest legal document they’ve ever endorsed or been a party to in their “distinguished” legal and political careers.
Despite their best efforts, the CSKT water compact was still too controversial to ratify easily. However with some arm twisting, CSKT dark money, failure to disclose pertinent information, making a mockery of the People’s government, and widespread threats of decades long litigation, the parties to the compact were able to achieve an unconstitutional simple majority ratification vote in the Montana legislature in 2015.
In June of 2015, after the compact’s questionable ratification in the legislature, the United States and the CSKT filed 10,000 claims covering 2/3 of the state:
These claims remain a dark “threat of litigation” cloud over the state of Montana. Since filing them, tribal attorneys have successfully used them to thwart the Montana adjudication process and to prevent any examination of the tribe’s illegal and unreasonable claims. They currently have a stay in the water court until January 2020.
Meanwhile in Idaho……
Notwithstanding the actions of Montana with respect to the Confederated Salish and Kootenai Tribes water compact, the state of Idaho has been working hard to protect its citizens from off reservation claims of the United States and the Coeur D’Alene tribe.
In 2008 the Idaho Court entered an order to commence the Coeur d’Alene-Spokane River Basin Adjudication.
In March of 2014, the United States filed 353 federal reserved water rights claims with the state of Idaho on behalf of the Coeur d’Alene tribes
Objections and responses to the claims were filed by various parties and were consolidated into one sub case in early 2015. The goal was to separate the issues of entitlement (legality of the claims) and quantification, addressing the issue of entitlement (compliance with the law) before any quantification would be addressed in the court.
Motions for summary judgment were filed by Idaho, the United States, the Coeur d’Alene Tribe, and others.
In May of 2017, Idaho’s Fifth Judicial District issued an order that included the following crucial legal decisions and ground rules for any claims that were to proceed forward in the adjudication process:
- A determination of the primary and secondary purposes of the reservation
- A declaration that the United States is not entitled to federal reserved water rights outside the boundaries of the reservation
- Setting ground rules for the priority dates of any water rights
- Denying the United States’ claim for lake level maintenance of Lake Coeur d’Alene as a matter of law
A copy of that decision can be found at this link: 05/2017 Idaho Fifty District Court Order Pertaining to Requests for Summary Judgment
We’d like to note that the parties to this decision have appealed it to the Idaho Supreme Court, so this is far from being resolved, but it is a necessary and important step in the process of protecting Idaho citizens from an Indian Water Rights nightmare in their state. Their success speaks volumes related to what a federal reserved water right is and is not.
NOTE: The document linked above is IMPORTANT to our situation and we hope you take the time to read it if for no other reason than to understand the path Montana could have and should have taken with respect to the United States and CSKT claims. It is a stark reminder of Montana’s negligence and its complete failure to step up on behalf of protecting its resources, its constitutionally mandated authority, and the rights of all of its citizens. Instead of choosing a pathway that would have stopped or diminished any federal overreach, it empowered the United States and CSKT by endorsing the federalization of the clean abundant water in western Montana.
Why Did Montana Choose a Path that Ignored its Responsibilities and the Rights of its Citizens?
We will leave that answer up to you, but want to end with this:
In August of 2012 Chris Tweeten explained in a public meeting that he saw the Montana Reserved Water Rights Compact Commission as a trail blazer for future Indian Water Rights Settlements in the country. He noted that once the CSKT water compact was ratified, he wanted to plan a “national scope” party to celebrate the conclusion of their journey. He even proposed that Hillary Clinton be invited to the celebration. At the time we were new to the water rights “negotiations” and had no idea what he meant by the term trail blazer.
However after more than six years and thousands of hours of research later, it is our firm belief that when the history books are written, the MRWRCC will be remembered for its deception, as well as the divisive tactics they used to coerce people into a reluctant and distasteful acceptance of the CSKT water compact.
Plain and simple, it was an attempted fraud upon the people of Montana. It could very well turn out to be the biggest scandal in Montana’s history.
Montana or Idaho? Idaho or Montana? Which state would you rather have looking out for you?