MLWA Statement on MT Supreme Court Decision

©2017 Montana Land and Water Alliance

STATEMENT OF MONTANA LAND AND WATER ALLIANCE ON MT SUPREME COURT DECISION in FJBC v. State

   Catherine Vandemoer, Ph.D., Chair

The MLWA expresses its dismay at the tortured political opinion delivered by the Montana Supreme Court in the case FJBC v. Montana.  Ultimately, we believe the Court failed to address the core issue: the constitutionality of the legislature’s 2015 vote on SB 262, the CSKT Compact under Article II Section 18 of the Montana Constitution. The MT Supreme Court avoided ruling on the constitutional issue presented in the case by ruling the MT constitution doesn’t apply to the CSKT compact, a bill passed in the state legislature.

Stunningly, the court ruled contrary to and despite the lower court’s proceedings and decision, which found that the compact had clearly granted the state immunity from costs, damages, and attorney’s fees for takings and damages that occurred during the administration of the compact under this new administrative law.

Further, the lower court had described the compact’s new water administrative system, to which the  state’s immunity was linked,  as a never-been-tried quasi-sovereign administrative system that would ultimately have jurisdiction over 28,000 Montana citizens. The lower court noted that in this new water administration system, no government entity involved—the state, CSKT, or federal government—would take responsibility for actions that could damage water rights, infrastructure, and property while implementing the compact. Indeed, in the lower court proceedings the state and tribes disagreed as to whether the new water administration entity or members could be sued in state court.

The nature of this new administrative system and board, and its immunity from costs, damages and attorneys fees, is at the heart of determining who is responsible for damages to the water users when implementing this compact. And it is why the immunity provision is relevant.  Obtusely, the court said in a footnote on page 9 of the decision that

“We need not consider whether the Board [new management system] itself is a state, tribal or federal entity because the only immunity provided is to “members” of the Board”

Not only is this statement legally and factually incorrect, the Court clearly referred to state public employees already having immunity to then claim the legislature’s vote was constitutional.  The court flatly ignored the issue.

The Court’s opinion and closed-door deliberations in a matter of acute public importance demonstrates that the Court had already made up its mind about the case and then tailored its “findings” to the desired outcome. The Court could not tolerate a public discussion of the embarrassing unconstitutional provisions of and contradictions in the existing compact and come to its desired conclusion at the same time.

In ruling the way it did, the Court defeated the purpose and protections of Article II Section 18 of the Montana Constitution.  The Court decision essentially agreed with Attorney General Fox that this constitutional provision “has been drained of all significance”.  What other portions of the state constitution will the state “drain of all significance” to achieve its policy objectives?

Let us be clear: this is not a victory for the still fatally-flawed CSKT compact or for Montana. Nor is the compact now “constitutional”.  And litigation on the compact is not over but can now earnestly begin, especially on the known constitutional violations underlying the provisions of the compact itself.

Icarus and the CSKT Compact

© 2017 Montana Land and Water Alliance

In Greek mythology, Icarus is

the son of a master craftsman, Daedalus, the creator of the Labyrinth.  Icarus and his father attempt to escape from Crete by means of wings that his father constructed from feathers and wax. Icarus’ father warns him first of complacency and then of “hubris”, or pride and ambition, asking that he fly neither too low nor too high, so the sea’s dampness would not clog his wings or the sun’s heat melt them. Icarus ignored his father’s instructions not to fly too close to the sun; when the wax in his wings melted he tumbled out of the sky and fell into the sea.

This is the tragic theme of failure at the hands of hubris.  There is nothing wrong with ambition or setting one’s sights high. But when an otherwise good cause is infected with greed and advanced by fundamental mistruths–feathers and wax—it can only fly too close to the sun, its wax destined to melt and the feathers fall away.

What a perfect analogy for the CSKT Compact, and how interesting that we have in this story a labyrinth, and wings constructed of wax and feathers to look sturdy and usable but which fail under the heat of scrutiny. The labyrinth is certainly like the complex maze of theories, rules, and pages of the CSKT Compact that the public and legislators had to wade through and try to understand.  And the waxes that hold the contraption together—a wish list of things the treaty and laws supposedly give to the tribes and allow the state and federal government to do—are cloaked in the feathers of hubris.

This is an observation, and by no means are the citizens here done with the correct task of protecting water rights from the schemes and plans of the tribe, state, and federal government under the spell of hubris.  But the wax and feather maze of the compact has melted, and now brings certain litigation:

1. Property takings. On its face, the Compact plan for the Flathead Irrigation Project (FIP) is a taking of property rights in water of thousands of FIP irrigators including tribal members. No one has to wait for the taking and damage to occur–it exists on its face. This is why the state wanted to exempt itself from any liability involving costs, damages, and attorney’s fees.
2. Constitutional Violations. The State of Montana has violated numerous clauses of its own constitution in the Executive, Judiciary, and Legislative articles. These issues have been identified and legally documented in the last five years and pave the way for numerous actions that can proceed now. This is also why the state wanted to exempt itself from liability for damages.
3. Civil Rights Violations. The violations of the civil rights of Montanans by certain governmental officials is also evident in the entire compact proceedings…all that wax that held the feathers together by its existence violated the civil rights of every person in Montana and could compel actions by large groups of citizens. If a man can be said to have property in his rights, then avoiding financial liability for civil rights violations is also what the state intended.

Whatever is next in the court arena, the state, the tribes, and the United States may have trapped themselves in their own labyrinth and hubris…the compact ball of wax and feathers that cannot be supported by fact, law, history, or sunlight.

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.

 

Wyoming Farm Bureau Defeats EPA Wyoming Land Grab (Wind River Reservation)

Wyoming Farm Bureau Defeats EPA Wyoming Land Grab

Feb 22, 2017 | by William Perry Pendley

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DENVER, CO.  The Wyoming Farm Bureau today celebrated the 2-1 ruling of a three-judge panel of a Denver-based federal appeals court that struck down an edict from the U.S. Environmental Protection Agency (EPA) that the Northern Arapahoe Tribe and the Eastern Shoshone Tribe—of the Wind River Indian Reservation in Fremont and Hot Springs Counties in west central Wyoming—have jurisdiction over 1.48 million acres of Wyoming.  In early 2014, the group petitioned the U.S. Court of Appeals for the Tenth Circuit contesting the EPA’s December of 2013 decision to grant “Tribe-as-State” status under the federal Clean Air Act.  The Farm Bureau, some of whose members live, work, and own property in and near Riverton, argues that the EPA’s decision ignores more than one hundred years of actions by Congress, Wyoming, the Tribes, and various rulings by a host of federal and state courts including the Supreme Court of the United States.  During arguments in November of 2015 the parties were asked to file supplement briefs on whether the withholding of Clean Air Act funds by the EPA mooted the lawsuit, which the Farm Bureau filed on December 1, 2015.

“We are thrilled with the ruling by the panel that 1.48 million acres of Wyoming are no longer considered ‘Indian country’ and therefore the subject of controversy and conflict over whether the Tribes have jurisdiction over non-Indians and non-reservation lands,” said William Perry Pendley of Mountain States Legal Foundation, which represents the Farm Bureau.

In December 2008, both Tribes sought Tribe-as-State status under §301(d)(2) of the Clean Air Act, which provides an “express congressional delegation” to tribes of the EPA’s authority to regulate air quality on fee lands located within the exterior boundaries of a reservation.  The tribes expended 82 of their 87-page application arguing that they possessed jurisdiction over Riverton.  Because their application ignored a host of federal statutes and federal and state court rulings, in 2009, the State of Wyoming, the Wyoming Farm Bureau, and other entities filed comments opposing the application.

The Reservation, which is shared by the Tribes, was established in 1868.  In 1904, the Tribes signed an agreement with the federal government ceding 1,480,000 acres of land, which were to be opened for sale under the homestead, townsite, coal, and mineral land laws, which was entered into with the United States Indian Inspector in exchange for per capita payments to tribal members and capital improvement projects inside “the diminished reserve” or Reservation.  In 1905, Congress ratified the 1904 agreement.

In 1906, the ceded lands were opened for settlement by a Presidential Proclamation and allotments were sold to non-Indians in an area that today makes up Riverton.  In 1939, some unsold ceded lands were restored to the Reservation, but a significant portion was not.  Riverton is located wholly on lands ceded in the 1904 agreement and never restored to the Tribes.

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

Note:  This case has HUGE implications for our state, federal, and tribal government’s overreach problems in western Montana.  For those of you who might be interested in seeing the briefs and historic documents submitted in this case, reference the State of Wyoming’s Attorney General’s website at this link.  Scroll about 1/2 way down the page for links to the documents.

Here are a few additional comments from Perry Pendley concerning this issue:

A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit in Denver ruled 2-1 that the EPA had no right to ruled that 1.48 million acres of Wyoming did not belong to Wyoming—my home state—but was instead “Indian country” and subject to the jurisdiction of the two American Indian tribes that reside on the Wind River Indian Reservation in west central Wyoming.

The question before the panel was simple, as Judge Tymkovich who wrote the opinion for the majority, put it:  “This case requires us to determine whether Congress diminished the boundaries of the Wind River Reservation in Wyoming in l905. We find that it did.”  As a result, the Tenth Circuit rejected the arguments of the Obama administration that Congress did NOT reduce the size of the reservation and that the 1.48 million acres remained “Indian country,” even though the tribes had been provided compensation for the land, even though the land was opened for homesteading, even though some of that land was occupied by the town of Riverton (population 10,000), and even though the Wyoming Supreme Court and other courts, including the Supreme Court of the United States in a related case, had upheld the reduction of the reservation.

In reaching its opinion, the panel did what court should do.  It looked at the words Congress used to accomplish its objective:

• [O]ur 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”[.]

The panel also ruled that MSLF’s client, the Wyoming Farm Bureau Federation had the right to file its lawsuit (“standing”):

• 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.

Exactly what kinds of problems did MSLF’s clients 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.  I wrote about these problems here and here.

This case had many important elements, including:  (1) the utter lawlessness of the Department of the Interior Solicitor’s opinion (on which the EPA relied), (2) the involvement of an out-of-control EPA, (3) the jurisdictional muddle into which rural westerners were thrown, that is, not knowing whether they (like the Riverton Memorial Hospital) might be hauled into tribal courts, and (4) MSLF standing alone with its client the Wyoming Farm Bureau Federation alongside the State of Wyoming.

Thank you for your support of MSLF’s battle in this hugely important case.  You may renew your support for MSLF’s battles for freedom here.

Best, Perry

William Perry Pendley, Esq.
President
Mountain States Legal Foundation
2596 S. Lewis Way
Lakewood, CO 80227
303-292-2021; FAX 303-292-1980

mountainstateslegal.org

 

Radical Federalism

©2016 Concerned Citizens of Western Montana

What we have witnessed in the last several years of the CSKT Compact deliberations is just one part of what we would call the new “radical federalism” that has emerged during the Obama administration. In this context, we have witnessed our state essentially give away Montana’s water resources and its constitutional duties to protect, administer and use the resources for the benefit of Montana citizens to the federal government, under the guise of the CSKT water settlement.

Radical federalism actually violates the rights of all citizens, states, and Tribes included.  Only the small “leadership” of these entities benefits, and only for a short period of time.  It’s only thirty pieces of silver and a federal position.  The Endangered Species Act,  the Environmental Protection Agency (EPA), and the WOTUS (Waters of the United States) rule go hand-in-hand with the attempt to control Montana’s lands and resources through an expanded Indian water settlement.

Consider as well all the other federal efforts underway that may at some point even subsume the CSKT Compact:

• Columbia River Treaty discussions
• Columbia River Power System Operations
• Yukon to Yellowstone area
• Designation of national bison range area in eastern MT
• Desigation of wilderness areas, national monuments
• ESA listings for sage grouse and other species

While all of these actions raise questions about the extent to which federalization of natural resources is the goal of both federal and state agencies, the most immediate and direct threat is the CSKT Compact.

Action by state officials, commissions, and legislators who knowingly violated Montana’s constitution through the development, promotion, and unconstitutional passage of the CSKT Compact in 2015 essentially acted  to deprive Montana citizens of their constitutionally-protected rights.  These include due process, equal protection, property rights, and other constitutionally protected rights such as trial by jury and the right to a republican form of government.

Apparently, this is “state government” under the remnant of Obama: Steve Bullock and Tim Fox.

Maybe its time to “drain the swamp” in Montana?

 

 

 

Our DEPLORABLE “Representatives”

© 2016 Concerned Citizens of Western Montana

Why is it that five minutes after an elected Montanan sets foot in Washington DC, Montana values, the Constitution and the people they represent are long forgotten?

We recently reported to you that our Congressional delegation was “Playing with Fire” with bills they have sponsored or currently support that could very likely be detrimental to Montana, and to all western states that have significant amounts of United States Forest Service (USFS) and Bureau of Land Management (BLM) lands located within their boundaries.

Sadly in just a few short days, we have also learned that our congressional delegation has not only been playing with fire, but Daines’ office, when being queried about his own bill, withheld information about other bills that Congress has already voted to ratify or are prepared to ratify that serve to accomplish the same objective.  We have to assume this omission was intentional because in April Daines already voted to ratify one of them. S 2012 sponsored by Lisa Murkowski out of Alaska, passed in both the Senate and the House and will soon make its way to Obama’s desk for signature.

These four bills (and possibly more) appear to be related to a larger strategy related to the management of our Public Lands:

S. 2012 North American Energy Security and Infrastructure Act of 2016
Sponsor:  Murkowski
Status:  Passed Senate 04/16 and House 05/16 – Daines, Zinke and Tester all voted for it

S. 3014 Tribal Forestry Participation and Protection Act of 2016
Sponsor:  Daines
Status:  Introduced to Senate and hearings held 06/16

S. 3085 Emergency Wildfire and Forest Management Act of 2016
Sponsor:  Roberts
Status:  Introduced to Senate 06/16

H.R. 2647 Emergency Wildfire and Forest Management Act of 2016
Sponsor:  Westerman
Co-Sponsors – 14 including Ryan Zinke
Status: Passed House 07/15

The attached table includes links to each of these bills and the language in them  serves to expand tribal control and jurisdiction over our Public Lands, as well as Washington’s inappropriate use of a 638 contract for the purpose of managing these lands.

The Farce of Representation in Washington

FAILURE TO FIX THE PROBLEM DOES LITTLE MORE THAN CREATE A NEW ONE
When asked about S.3014, Senator Daines’ staff conveyed that this was part of a larger strategy related to our Forest Service lands in an attempt to work around environmentalist obstructions to the management of public lands.

Because TRIBEs are exempt from the same laws as the rest of us, including the ability to be sued, legislators believe this is a work around to all of the lawsuits that impede responsible management of our forest lands.  To this we have a few questions:

1. Why not FIX THE ACTUAL PROBLEM of frivolous environmental lawsuits rather than trying to work around it by getting into bed with the tribes and CREATING A NEW PROBLEM?  For starters, how about removing federal judges who align with environmentalists for their “bad or unconstitutional behavior” or looking at the Equal Access to Justice Act that funds many of these lawsuits?
2. Speaking of getting into bed with tribes, has Senator Daines paid attention to what happened in Browning?
3. Why are tribes exempt from any laws that the rest of us are subject to?  Perhaps Daines should be looking at this RULE OF LAW FAILURE instead of focusing on yet one more expansion of federal and tribal overreach.

While we are unable to determine the complete strategy of these separate bills, it seems that each one of them brings a little something to the table.  By trying to “outsmart” the power brokers  and well-funded environmentalists in DC, the consequences of their brilliant scheme will place more shackles on citizens living in the western United States, and pave the way for further, and even more creative overreach in the future.

NOT TO WORRY, WE’LL REMOVE THE OFFENSIVE LANGUAGE FROM THE BILL
One constituent was told that Daines would remove the offensive language in the bill, not to worry.  Unfortunately these staffers failed to mention that the Murkowski legislation had already been passed in both houses with essentially the same language in it.

NOT TO WORRY, WE’RE GIVING THE STATES THE SAME OPPORTUNITY AS THE TRIBES
His office also told at least one constituent that he has co-sponsored a bill that would give the same opportunity to the states.  Remember that currently these federal lands are unconstitutionally held and managed by the federal government, and were originally intended belong to the states.

We looked up that bill S. 3310 sponsored by Amy Klobuchar and co-sponsored by Steve Daines named the Environmental and Economic Benefits Restoration Act of 2016.

Unfortunately for Daines, S.3310 doesn’t come close to allowing states to manage public lands located within their boundaries.  It instead  “establishes a landscape-scale restoration program to support landscape-scale restoration and management that results in measurable improvements to public benefits derived from State and private forest land.”

Hmmmmm….  let’s see if we get this right:

The Tribes are able to contract to manage our public lands, public lands meant to be enjoyed by all citizens, and will reap the benefits thereof.  If Daines has his way, the States will be “allowed” by the federal government to landscape State and Private forest land.

If this is not an assault on the efforts of the American Lands Council to restore federal lands back to the states, we don’t know what is.

One thing we know for certain.  Once tribes are given this huge overreach, it will be impossible for the states to ever have those lands restored to them because taxpayer funds will be used for tribal lawsuits to prevent it every step of the way.

We cannot help but think that subverting any restoration of public lands to the states is the desired outcome of these bills.  After all, Steve Daines, Jon Tester, and Ryan Zinke are all on record as opposing state management of “public lands ” that rightfully belong to the states.  And not one of them have given us any good reason to think otherwise.

THE BIGGEST LIE OF ALL,  THE LITTLE PEOPLE DESERVE A SAY
Today a friend forwarded an email from Steve Daines touting that “Montanans deserve a say” in National Monument Designations.

Was this communication a reaction to his utter disregard for these same “Montanans” when he voted to ratify Senator Murkowski’s Bill S.2012, the North American Energy Security and Infrastructure Act of 2016?

Or does his correspondence instead serve to deflect from S. 3014 and other legislation that has his fingerprints on it?

Who in Montana was told about the hearings on S.3014 or S.2012?  Anyone?  Were the tribe’s afforded the opportunity to testify?

What about due diligence?  Did Daines even bother to contact any of the 11 county governments in western Montana to discuss the jurisdictional or economic impacts his bill S.3014 could have on them?  Some of these counties have more than 80% forest service lands within their boundaries.

The water compact essentially ceded western Montana to the United States / CSKT.  Because our “so called representatives” have failed to consider the implications of these bills, it is incumbent upon citizens to study the practical result of each of them in combination with the compact itself.  In other words, what will these “forest service protection” bills sow in terms of further cessions of jurisdiction, control and financial benefits to one class of citizens to the detriment of others?

Republicans that sponsor or vote to ratify bills such as these are a far greater danger to our country than Democrats who do so.  Why?  Because the public at least generally knows where democrats fall on the scale of tyranny.

Unfortunately the public  incorrectly believes that republicans stand strong for smaller government and private property rights as well as the rule of law.  Montana “Republicans” supporting such legislation serve to undermine our Constitution and to advance an agenda that expands federal government overreach with most folks being none the wiser.

Mr. Daines, Murkowski and others seem to think they are smarter than the rest of us, and therefore know what is better for us than we do.  This is exactly why our country is in the shape it is in.

WHERE DOES GIANFORTE STAND?

While we have not reached out to them yet, we cannot help but wonder what Representative Ryan Zinke, currently running for a second term in Washington against Denise Juneau might have to say about his vote on HR 2647?

We are fairly certain that Governor Bullock supports this effort to expand tribal control and jurisdiction over our public lands.  What we don’t know, is what Greg Gianforte, Bullock’s challenger in the upcoming election thinks about Daines’ plans for our country’s Forest Service and BLM Lands.

We think it is time that the citizens of Montana to get some answers, and to let our congressional delegation know what we think of their ill conceived and poorly thought out plan.

Let them know how you feel about all of these bills and their companion CSKT Compact bill S. 3013 as well as Congressman Zinke’s blind support of the definition of Indian forest lands in  H. 2647 and S. 3014!

Senator Steve Daines: (202) 224-2651

Senator Jon Tester: (202) 224-2644

Congressman Ryan Zinke: (202) 225-3211

While you’re at it, it’s a good time to find out where the candidates coming up for election stand too:

The Gianforte campaign can be reached at:  (406) 686-3886

 

 

 

Montana Congressional Delegation Playing with Fire

©2016 Concerned Citizens of Western Montana

The rule of law, in its simplest form, is that nobody is above the law.

Citizens who have opposed the CSKT Compact have always known that the compact was about some larger agenda which was buried in the details of a 1,500-page monstrosity.

The Compact was so important to certain state elected officials, the federal government, proponents, and the CSKT that they stopped at nothing to get the compact “passed” by hook or by crook.  We believe it was mostly by”crook” as the Compact only passed through outright lying to the public, rule changes in the House, deliberate, knowing defiance of the Montana and U.S. Constitutions, and the expenditure of millions of dollars of taxpayer monies.

In defiance of the law, common sense, and common decency, Senator Tester introduced a rewritten, new CSKT compact to the Senate in June of this year which ironically exposed this larger agenda, demonstrating the true expanse of the attack on private property rights in Montana.

In brief review, the CSKT compact sets precedent across the west by:

• Rewriting the Treaty of Hellgate
• Ignoring history, private property rights, and state law
• Rewriting the definition of “reservation”
• Expanding the ‘federal reserved rights’  beyond that which can legally be claimed by Tribes, resulting in the unlawful condemnation of existing water rights on and off reservation
• Ceding state constitutionally-derived authority for water ownership, administration and protection of citizens to the CSKT/United States

Simply stated, the CSKT Compact had nothing to do with water rights or Indians or culture.  It was instead about expanding federal control over states, citizens, our economies, livelihood, freedom, and liberty.  Aided and abetted by the state of Montana, it is  a completely lawless, dangerous and immoral attempt to destroy Montana.

Senator Daines, Senator Tester and Congressman Zinke turned a blind eye to these issues and concerns of Montanans. But now they have decided to take advantage of CSKT Compact precedent and expand it’s concept across the west to federal lands, particularly National Forests and Bureau of Land Management (BLM) rangelands.  The effort is a blatant attempt to circumvent western state priorities.

Playing with Fire: Giving Management of National Forests and Public Lands to the Tribes: H.B. 2647 and S. 3014

S. 3014 began as House Bill 2647, or the 2015 Resilient Federal Forests Act,  which started out as a bill to reduce the threat of wildfire in national forests and public lands caused in part by environmental lawsuits, unnessesary federal regulations capturing the budget, and requirements of the National Environmental Policy Act. All of these “constraints” mean that effective reduction of fuel load and thus fire danger in forests and on public lands cannot occur.  The same concerns have been espoused and documented by the American Lands Council in the effort to turn these lands over to the States for their more effective control and management.

The intent of H.B. 2647 was also to include and assist forest  or range lands on Tribal lands or reservations.  Importantly, “Indian forests or rangelands” were defined as in the Tribal Forest Protection Act of 2004 and meant:

The term ‘‘Indian forest land or rangeland’’ means land that—(A) is held in trust by, or with a restriction against alienation by, the United States for an Indian tribe or a member of an Indian tribe; and(B)(i)(I) is Indian forest land (as defined in section 304 of the National Indian Forest Resources Management Act); or (II) has a cover of grasses, brush, or any similar vegetation; or (ii) formerly had a forest cover or vegetative cover that is capable of restoration.

The house bill was amended and proposed that federal forest and rangeland could be treated as Tribal Forest land or Rangeland with the following new and expanded definition:

The Department concerned, at the request of an Indian Tribe, may treat federal forest land as Indian forest land… if the federal forest land is located within, or mostly within, a geographic area presenting a feature or involving circumstances principally relevant to that Indian tribe.

The bill passed the House in July 2015, with full Zinke support.

S. 3014: Daines Adds Fuel and Strikes the Match

Senator Daines’ “version” of H.B. 2647, S. 3014, renamed and retooled the Resilient Federal Forests Act to:

A Bill to Improve the Management of Indian Forest Land, and for Other Purposes

The bill has the same goal as the House bill–ostensibly to reduce fire hazard and to create better management of the federal forests.  However, Senator Daines blatantly redefines federal forest lands to be “Indian Forest Land” or “Tribal forests”. From a discussion with Senator Daines’ staff provided to us by a colleague:

First, the intent of the bill is to have “more effective forestland management” because it will “bypass and streamline NEPA requirements,” including bonding requirements because the tribes are exempt from lawsuits and many, if not most of the requirements.  They are accepting and using the status of the tribes in a “pragmatic way” (their words) to do an “end run around the environmental groups and their lawsuits” (my words).

As Congress has made it easy for the Tribes to not have to follow the laws as other citizens do, and has insulated them from litigation, Senator Daines further expands the definition of Tribal Forest or Rangelands to include lands:

1. Ceded to the United Sates by Treaty or other agreement with that Indian Tribe;
2. Within the boundaries of a current or former reservation of that Indian Tribe; or
3. Adjudicated by the Indian Claims Commission or a federal court to be the tribal homeland of that Indian Tribe

With this expansive definition, it means that every National Forest and BLM rangeland in Montana is included and now under the management of the Tribes, as in this map showing the “homelands” of the seven Montana Tribes that were ceded to the United States.

Just a minor question, didn’t the Treaty of Hellgate–and other treaties– provide that the CSKT ceded all rights, title and interests to their aboriginal lands?  Now this federal forest land is described and treated as “Indian forest land”?

The west-wide implication of Senator Daines’ bill and the redefinition of of “Tribal Forest or Rangeland” is shown below:

So under the guise of “effective forest management”, and for the purpose of cynically avoiding environmental lawsuits and regulations, the turnover of federally-managed public lands to the states as per the American Lands Council, and spending more taxpayer money, Senator Daines gives away the management of lands not only all of Montana, but all of the western states to the Tribes.

From our colleague’s conversation with Daines’ staff:

The staffer says they are “taking a lot of heat from the left”, and that they “have put ‘sideboards’ on the bill to prevent over-expansion”.  These sideboards  are”making sure the land remains in federal ownership, public access is protected, timber is subject to competitive bid,” etc.  I asked why give the tribes this “favored” status when they have ceded all this land via treaty.  The answer pertained mostly to the “end run around environmental lawsuits” notion. Without any proof or examples, the staffer claimed that “Tribes are better at managing forest lands than the Forest Service.”

In defiance of history, the American Lands Council, private property rights, and the rule of law, Senator Daines has created a firestorm which will engulf the western United States.

Tribes to Contract Management of National Forests and Rangelands Under “638” Contracts

To add insult to injury, Senator Daines contemplates that the Tribes can contract from federal agencies for the management of all forest or rangeland activities previously conducted by the federal agency under the Indian Self Determination Act, P.L.93- 638 (25 USC 450 et seq)

However, under the law–the Indian Self Determination Act, or “638 contracts”–a Tribe may only contract federal functions if those federal functions were designed specifically for Indians because of their status as Indians. National forests, public rangelands were not set aside solely for Indians–they were established for the public.

Back to the CSKT Compact

The root of this “forest land” malfeasance by our federal officials starts with their use of Indian Tribes as a wedge against citizens.  Of course it is labeled “racist” to oppose this federal overreach and intrusion. Remember that the CSKT Compact, and Tester’s rewrite:

• Rewrote history–the title, rights and interest were never ceded, and the chain of title never broken
• Redefined the reservation–to include aboriginal and subsistence lands as “homelands” for the purpose of the treaty and to ignore fee patented lands and rights of way
• Expanded rights and privileges to water beyond what Tribes are legally entitled to, specifically off reservation and into Eastern Montana
• Granted Tribes the management authority over resources that do not belong to them and jurisdiction over non-Indians
• Took over a federal irrigation project and the project water rights of non-Indian citizens
• Eliminated state jurisdiction over state citizens and water resources within the exterior boundaries of the reservation

Senators Daines and Tester, along with Congressman Zinke are playing with matches and created a firestorm that is outside the law, outside of any legal authority they have, and outside the Constitution.

Their oath of office?  Heh, “what difference does it make”?

Call to Action

Let them know how you feel about S. 3014 and its companion CSKT Compact bill S. 3013 and Congressman Zinke’s blind support of the definition of Indian forest lands in  H. 2647 and S. 3014!

Senator Steve Daines: (202) 224-2651

Senator Jon Tester: (202) 224-2644

Congressman Ryan Zinke: (202) 225-3211

FJBC Issues Press Release 08/17/16

On July 18, 2016, Lake County District Court Judge James Manley issued his Order on Motions for Summary Judgment in Flathead Joint Board of Control et al v. State of Montana et al., Lake County Cause No. DV-15-73 declaring SB 262 unconstitutional and in violation of Art. II, Section 18 of the Montana Constitution.  Based on the clear language of one of the Compact’s immunity provisions precluding any legal action against the State or its agents for damages resulting from wrongful actions by the State, the Court granted the FJBC’s partial motion for summary judgment stating “[t]his is not a close call.  The provision creates a new sovereign immunity for the state, and for its agents or employees.”

The opinion found that “…[t]he legislative history provides clear evidence that immunity was, in fact, the purpose of the immunity language.”  “SB 262 grants a new immunity to the State and its agents.  The immunity provisions of SB 262 would therefore constitute an amendment of this constitutional provision, and require a 2/3 vote of each house of the legislature.  It did not receive a 2/3 vote of either legislative body.  Therefore, the immunity provision is void for failure of passage as required by Article II, Section 18.”  Although the Court determined that the unconstitutional provision could be severed from the remainder of SB 262, the FJBC maintains that the resulting mutilation of the statute in contravention of the Legislature’s clear intent should void SB 262 in its entirety.

The FJBC’s concerns regarding immunity are heightened by the amorphous nature of the Water Management Board created by SB 262.

While the Court provided no ruling regarding the validity of the Water Management Board created by SB 262, it did scrutinize the State and Tribes’ refusal to accept responsibility for the Board’s actions thereby affirming the FJBC’s concerns.  “The Board is comprised of state and tribal appointees, and their appointee.  The governments contend both that it is not a subdivision of the sovereign state or tribal government, but is clothed with all or more of the immunity which either entity has.  Each government denies legal responsibility for the Board, while the two governments create and effectively control the Board by holding the power to appoint and remove its members.  This Board is a legal creature never apparently seen before.  The Compact and SB 262 vest the Board with extraordinary power to grant, permit, deny or change water use for an individual, and create groundwater protection areas.  It will have power over a broad geographic area and over tribal and non-tribal individuals, property owners, irrigators, businesses and governments.”

As expressed in the Order, the FJBC’s concerns are further exacerbated by the Tribes and State’s diametrically opposed positions regarding whether or not the Water Management Board can actually be sued in state court for money damages.  The State contends it can while the Tribes contend it cannot.  The State and Tribes’ refusal to accept responsibility for the Board’s actions and their differing opinions regarding whether an avenue for legal redress exists for irrigators supports the FJBC’s continued efforts to assure the protection of its constituents’ constitutional rights.  The FJBC is reviewing the opinion and is considering its options going forward.

Note: For more information, visit the FJBC’s website at this link.

Federal Domestic Abuse – the Political Ruin of 30,000 Montanans And Confiscation of 350,000 Others’ Property Interests

Note:  Our thanks to Elaine Willman for her permission to print this article that was recently published in the Western Ag Reporter.

Federal Domestic Abuse – the Political Ruin of 30,000 Montanans and Confiscation of 350,000 Others’ Property Rights

At least since1998 and likely sometime sooner, federal and tribal officials were coercing State leaders into submission to surrender major protections of natural resources, property rights, water rights, Constitutional and civil rights of Montanans. A 1998 Memorandum of Understanding (MOU) signed then by Chris Tweeten for the State, of 2011-2015 Water fame and notoriety, as well as tribal and federal officials created the poison potion for the Flathead Reservation property owners to consume.  With the recipe in place, the instructions for administering the concoction were laid out by the CSKT Tribe in a 2001 Proposal for Negotiations.  And they were followed – to the letter over the next 17 years. Within these two documents many years ago was the plan and path to minimize the voice and silence those most directly impacted—property owners within the Flathead Reservation, 80% of whom are non-tribal citizens of the State.

Most of those directly harmed were entirely unaware that from 1998 to 2011 the federal jackboot was being crafted by numerous federal, state and tribal entities. A thirteen-year head start of multiple agencies that withheld public information for this period of time, certainly gave the feds, tribes and state profound leverage over a few courageous citizens asking questions or voicing concerns.

On April 11, 2015, the State Legislature approved the proposed CSKT Water Compact by a vote ruled unconstitutional on July 18, 2016, but this Compact moves forward anyway, for ratification by Congress. To add steroids to the strangling of farming, ranching, property rights, local small town economies, Senator Jon Tester has taken it upon himself to greatly expand the Compact approved by the State Legislature. The Senator as well as a Montana State Court have done end runs around the State Legislature. Tester’s Senate Bill 3013, the Confederated Salish-Kootenai Water Settlement Compact, – trebles the federal dollars to the tribe from 1.2 to 4.0 billion, requires the State turn all State waters over in the Compact land area to the federal government in trust for the tribes, and pony up $55 State tax dollars before the feds disburse the 4 billion.

Neither the Feds nor State will have any liability, nor will the tribe. Neither the feds nor state will have any oversight either. Landowners and residents have not a single government to turn to for redress. A small Unitary Management Board, heavily seated by tribal officials will control all matters concerning Compact implementation and will be the only place those harmed may take a complaint.

It is 2016 now.  Farmers, irrigators, landowners within the Flathead Reservation have lost control or any voice over everything necessary to produce life on their lands. The Tribe has 100% control of access to water. The Bureau of Indian Affairs controls the operation and maintenance of the irrigation districts. The federal government and tribe entirely control the former Kerr dam, with no reporting requirements, and no scrutiny of its public safety. The Bureau of Indian Affairs owns the Mission Valley Power Company that provides electricity to all households and lands within the reservation, and is operated by the tribe. Oh, and the tribe has no duty to non-tribal citizens or to keep America safe.  An unaccountable federal monopoly now controls life on non-Indian lands in Western Montana.

The Secretary of Interior has the last word on the Flathead Indian Reservation for water, power and irrigation. Not the Governor, not the State. Farmers and cattlemen fully know that life doesn’t happen on land without power and irrigation. And it’s the feds and tribes that will now arbitrarily set all rates for each—water and power, answering to no one, not the ratepayers or even the State’s Public Services Commission (PSC). It is the CSKT that no longer contributes to county and school district economic needs, so a substantial tax burden now shifts to the landowners as well. Water rates will go up; irrigation rates will go up; power rates will go up; taxes will go up.  This final economic squeeze is a foregone conclusion—it is a dead certainty.  The only things going down will be business income, household income, and land values. All of this is against the law. In the mid-80s a mission of the CSKT was to remove all non-Indians (approximately 30,000) from the reservation by 2030 “by any means necessary.” The stage is surely set.

Throughout this seventeen year period, during which landowners have been slowly bullied, demeaned and silenced, the State of Montana has made no effort, whatsoever, to protect its citizens and their collective right to own and enjoy the state’s natural (water) resources, for which the state is held legally responsible as a fiduciary under the public trust doctrine. Few attorneys, if any, have lifted a finger to assist the property owners. Public meetings were mere theater, feigned to pretend that any citizen voice mattered. The song sheets of the 1998 MOU and the 2001 CSKT Settlement Negotiation Protocols have been followed to the tune without missing a note or a beat.

Narrowly customized “help” was provided to the Flathead Joint Board of Irrigators (FJBC), keeping conversations limited to in-stream flows and not much else. Efforts by FJBC advisors have intentionally kept chronic divisiveness and dysfunction within the FJBC Board. These eleven fine Board members all deeply believe in the FJBC, are landowners and irrigators themselves, but pitted against each other could cause the collapse of the FJBC.  Apparently, the federal and state governments’ objective have long been to facilitate the failure of the FJBC so that the CSKT Water Compact can succeed. A well-functioning FJBC is a direct obstacle to successful CSKT Water Compact implementation. The FJBC and everyone must lose for the CSKT Water Compact to succeed. The plan set twenty years ago has wrought great fear and pain to truly fine Montanans.

To be blunt, the Interior Department and its Bureau of Indian Affairs now serve as pimps for federally recognized tribes, including the CSKT, who willingly submit themselves before the congressional and executive altar as “dependent” sovereigns to ensure rapid expansion of their “sovereignty” and legal jurisdiction over non-tribal lands, waters and persons; and the State of Montana is a willing and compliant customer, leaving an additional $55 million in State taxpayer dollars on the dresser. Indeed, while the State and Federal government lie comfortably together behind closed doors, the citizens of Montana have publicly had their dearly held constitutional, civil and private property rights pick-pocketed and transferred to others.

The State government has paid little heed to the printed words within the Montana Constitution or within the four corners of the federal Constitution, including the Tenth and Fourteenth Amendments and the Bill of Rights. Abandoned by their guaranteed representative government, good Montana people will be forced to move out and move on. The seven or eight Montana tribes will stand to devour the remainder of the physical State, as Montana’s governing institutions and structure increasingly become puppetry to implement federal directives for even greater tribal sovereignty and jurisdiction.

Want proof that this intentional theft of property owners’ water rights and interests have not been entirely orchestrated and maneuvered by the federal government and its operatives on the ground in Montana?  One small group of citizens recently engaged legal counsel to get their voices heard by the courts and federal agencies, and to claim their rightful due process, equal protection and property rights. And these folks are now painted as Enemy Number One. How dare a few property owners seek to protect their interests and their livelihoods? Those unable or unwilling to support these landowners remind me of the beaten wife contacted by domestic abuse counseling services that offer to help, but she sees them as bringing more trouble to her door, until she’s found dead in her home.

Governor Bullock, and Attorney General Fox:  Should Flathead Reservation land and water owners just lie down and drink the poison? How does that comport with your Oaths of Office? Who would have thought Montana, of all states, would succumb to such federal domestic abuse of the State, and then conspire with the federal government to deny its citizens’ State Constitutional protections of private property, water rights, and due process procedural rights?

This Compact, now bloated and inflated in Senator Tester’s S. 3013 bill is the blueprint and model for rolling out to the six other tribes in Montana, as well as tribes throughout the Western States. The current White House administration is hell-bent on taking down America’s food production by confiscating State waters, using tribal governments and reservations as the launch pads.

Absent support from the State of Montana or any current federal government entity, and in spite of serious demeaning and intimidation, some courageous property owners will eventually have their day in court.  And that is a good and necessary thing if property rights and due process are to exist for citizens anywhere in Montana today or tomorrow.

Elaine Willman, Author

Going to Pieces…the Dismantling of the United States of America (2015); and

Slumbering Thunder…a primer for confronting the spread of federal Indian policy and tribalism overwhelming America (2016)

Email: toppin@aol.com

Phone: 509-949-8055

Behind the FJBC Election Curtain

© 2016 Concerned Citizens of Western Montana

Earlier this year we reported on the cancellation of elections by the Flathead Joint Board of Control because of Lake County’s decision to withhold the ballots of 1/3 of Flathead Project irrigators.  We were told that this was being done because the county attorney was interpreting the statute concerning irrigation district elections differently than it had been practiced in the past.

Since May, the Joint Board meetings have been weighed down with mind numbing and unnecessary filibustering from Dick Erb, a commissioner of the Flathead District who refuses to recognize the fact that the so called election results were tainted and compromised, requiring at a minimum, a new election.

Note:  Mr. Erb also seems to keep very close ties with state employees who continue to implement the water compact via the Compact Implementation and Technical Team (CITT), seeming to serve as the “eyes and ears” of the state while he sits on the  FJBC. But that is a story for a different day.

HISTORY AND CONTEXT

When the Stipulation or Water Use Agreement was introduced to irrigators in 2012, all hell broke loose.  Until that document was unveiled to the public, irrigators had no idea what their consultant Alan Mikkelsen and other Joint Board Commissioners had “negotiated” on their behalf.  This is the product of the old FJBC’s “negotiation”:

• Elimination of double and triple duty water, as well as non-quota water from spring runoff
• An estimated 40-70% reduction of water deliveries
• Forced relinquishment of irrigator water rights to the CSKT, including a “cease and desist” order preventing them from protecting their water claims in court

When irrigators discovered that their representatives had not negotiated in their best interests, they corrected course.  This was accomplished by stopping the joint board from voting to approve the water use agreement through a lawsuit in late 2012.  By May of 2013 irrigators had also successfully voted out some of the offending commissioners and fired their consultant.

However, not being deterred by irrigator opposition to the compact and water use agreement, two rogue commissioners of the Mission District and two in the Jocko district selfishly and without public support collapsed the Flathead Joint Board of Control in December 2013.

Irrigators again responded with an almost unheard of successful recall of two commissioners.  They then voted in compact opponent replacements, and reformed the Joint Board by mid-2014.

In other words, irrigators knew the power they had with their vote, and they weren’t afraid to use it.

Unfortunately for irrigators, they don’t have the luxury of returning to their fields thinking that the forces in play to destroy their businesses have been defeated.  That simply is not the case as there is a concerted state, federal, compact proponent, and Tribal effort to take their property rights.

It is fair to say that an effort has been underway since 2014 to undermine and weaken the irrigator’s vote, and to squelch any efforts by the Flathead Joint Board of Control to defend and protect irrigator’s water rights.  That is exactly what we are watching being played out today.

Montana took the lead by making a unilateral decision to “negotiate” on behalf of irrigators in late 2014 ahead of the legislative session.  Irrigators had a government board representing them, but the state bypassed them completely.

The state’s 2014 “reopened negotiations” began with a public promise to the tribes by Chris Tweeten that not a drop of water would be changed in the compact.  Tweeten was true to his word.  The state simply inserted the guts of the water use agreement into the compact by calling it “adaptive management”, forming a Compact Implementation Technical Team (CITT) that replaced the FJBC to implement it, gave bare legal title to 100% of project water to the tribes, and told irrigators to have fun defending their now compromised irrigation water rights in the Montana Water Court.

BACK TO THE PRESENT

So here we are today with the Joint Board working earnestly on some VERY IMPORTANT issues for irrigators:

1. an active lawsuit challenging the validity of the water compact vote in the 2015 legislature,
2. a 9th circuit court mediation with the BIA concerning project operations and management, and
3. an intervention in Kerr Dam concerning the irrigators right to a low cost block of power.

As if that is not enough, they are now dealing with a compromised election, at no fault of their own, and a county attorney who through his actions appears to be motivated to interfere with Joint Board of Control business.

A reasonable person might expect the county attorney to have approached the Joint Board with his concerns about the interpretation of the election statutes and attempted to work with them to find a mutually agreeable pathway forward.  Instead of doing that, a decision was made by his office to withhold the ballots of at least 1/3 of the irrigators based upon his new “interpretation” of the law, with insufficient notice of this intent to the board prior to the May 2016 elections.

Why might that be?

Attorney Eschenbacher attended a Joint Board meeting in early May where a multitude of examples were provided by the public that demonstrated there was little rhyme or reason to which ballots were withheld and which were mailed.  At a minimum, he had to have realized that a significant cleanup of the election records was necessary before any vote should proceed.  Yet he refused to acknowledge the Joint Board of Control’s authority to cancel the election because it had been compromised. Key questions remain:

• Why was there no acknowledgement of or investigation into the claims of improprieties that were mentioned at the meeting he attended?
• Why would the Lake County Attorney insist on validating an election that clearly was compromised by disenfranchising a large number of project irrigators?

Although his purpose might not be to intentionally undermine the FJBC, it seems on its face to serve that purpose.

Working as if agents of the state, compact proponents Susan Lake, Jack Horner, Ralph Salomon and a number of others sued the Joint Board in May. Their new “group”, the Mission Valley Irrigators United, challenges the reformation of the FJBC in 2014 and also asked the court to validate the May 2016 compromised elections and seat the unlawfully “elected” commissioners.

Then in July, Lake County sued the Flathead Joint Board of Control, asking Judge Manley to declare the validity of the May 2016 election.  In a hilarious but strange turn of events, the county also sued Mission Valley Irrigators United, Susan Lake’s group.  It is funny because after complaining publicly for a year about the FJBC spending money to protect irrigators property rights, Ms. Lake will now have to fork up funds to defend herself in both lawsuits from the likely voluminous discovery requests that will find out just exactly what “evidence” they have to defend their lawsuits.

Here are copies of those suits for your reference:

May 2016 – Mission Valley Irrigators United v FJBC
July 2016 – Lake County v FJBC and Mission Valley Irrigators United

Regardless of the outcome of these suits or the motives behind them, rest assured that irrigators must prepare themselves to continue to be undermined every step of the way in their efforts to defeat the onerous water compact and to protect their water rights from an overreaching federal government and a complicit state government.

The elections fiasco works hand-in-glove with the irrational support of the water compact by compact proponents.  We also have little doubt that taking over the largest district of the project, the Flathead District, would allow compact proponents to collapse the Joint Board again, or withhold the funds necessary to support any irrigator opposition to the water compact or defense of irrigation project water rights.

Put simply, supporters of the compact want the irrigators vote and their voice to be stifled.  Worse yet, they also want to make it difficult for them to defend their important and valuable water rights.

With all this in mind, it’s time for all of us to refresh ourselves on the playbook that is being used against us:  Alinsky’s 12 Rules for Radicals

Note:  we know you were hoping that we would provide a copy of Susan Lake’s diary at this point, or her email communications with officials in the Lake County government, but that too will have to be saved for another time.  We would also like to dispel the rumor that Lake County has been renamed Susan Lake County or that the lake will be renamed “Fathead” Lake.

Useful idiots by definition are dispensable, and while they currently serve a purpose to someone, if proponents of the compact are able to succeed in undermining their neighbors, they will ultimately undermine themselves and be despised by all.  In Soviet Russia, the useful idiots were the first to be executed by the new regime.

Sadly if they succeed in their efforts, they will also ruin the rest of us.  That is why ultimately, their actions are idiotic.

We can however, take heart in the fact that no one has the right to give away or relinquish their neighbors’ unalienable property rights, and that truth is what will prevail in the end.