© 2023 Concerned Citizens of Western Montana
The Montana Land and Water Alliance organized in 2014 with the goal of raising funds to hire attorneys to stop the Flathead Water Compact in the 2015 legislature.
Because the compact was supposed to be a “Federal Reserved Water Rights settlement,” we hired the best attorneys possible for the job, Richard Simms, Jay Stein and Jim Brockmann out of New Mexico. In 1979. these attorneys prevailed at the United States Supreme Court in United States v. New Mexico, a lawsuit limiting federal reserved water rights on National Forests 438 U.S. 696 (1978).
In that case, the United States Supreme Court’s decision in United States v. New Mexico was rendered on July 3, 1978. To the surprise of some, the Court limited federal reserved right claims to the Rio Mimbres drainage of the Gila National Forest to an amount of water necessary to satisfy the purposes for which the forest lands were withdrawn from the public domain, as authorized by the Organic Administration Act of 1897.
These attorneys brought to our effort more than 100 years of experience defending states, municipalities and individuals from an overly aggressive federal government when it comes to federal reserved water rights.
Richard Simms was the lead attorney that we worked most closely with between September 2014 through April 2015 where seven papers were written and submitted to the legislature and Montana’s leadership.
Richard came out of retirement in 2014 to assist concerned Montanans in properly addressing the federal reserved water rights of the compact being proposed by the state of Montana, the United States, and the Confederated Salish and Kootenai Tribes (CSKT).
The significance of Richard’s work detailing the legal flaws of the CSKT Compact cannot be underestimated, for it now forms the foundation of most litigation going forward.
Sadly, Richard Simms, a giant in western water law and the foundation for and limits of federal reserved water rights passed away on November 9, 2021. Richard had continued to work in the trenches with us almost up to the time of his passing in 2021.
We cannot think of a better way to honor Richard than by posting the legal documents he submitted to the state for the benefit of objectors to the compact. We sincerely hope that objectors will find these documents helpful as they prepare themselves for the hearing track of the Flathead Compact decree in the Montana Water Court.
Unfortunately, our Montana legislative effort failed because by 2015 the Flathead Compact die had already been cast.
From the early 2000’s, and for unknown reasons, Montana has been completely committed to the cram down of its fraudulent Flathead Compact upon the people of Montana, using whatever means possible. The state refused to take heed of the arguments presented to them in 2014 and 2015 by legal experts in federal reserved water rights.
This is because the compacting parties weren’t interested in Federal Reserved Water Rights. They knew the Flathead Compact was and still is a complete repudiation of the Winter’s Doctrine and Federal Reserved Water Rights.
Our state leadership, including our “republican” governor remain intent on committing Montana to the compact’s fraudulent creation of time immemorial tribal reserved water rights.
We are hopeful that these legal arguments will soon be elevated out of the Montana swamp, and the foundational underpinnings of Richard’s work will be heard in the Supreme Court of the United States where his arguments will prevail once again.
List of Legal Analysis Documents
- October 29, 2014. The Montana Land and Water Alliance’s Response to the Water Policy Interim Committee’s Legal Analysis of the Questions Presented by Representatives Nancy Ballance and Keith Regier, prepared by Jay Stein, Jim Brockmann, and Richard Simms
This paper analyzes the legal problems with the WPIC’s study of constitutional and legal questions presented by 50 legislators. The study in part concludes that the proposed transfer of title of the irrigation water to the CSKT will result in water rights holders having an onerous “life estate” interest in their water rights.
- November 5, 2014. Letter to Attorney General Fox Regarding Article IX of the Montana Constitution, prepared by Richard A. Simms
This paper analyzes the Compact’s proposed Unitary Management Ordinance and its violation of Article IX of the Montana Constitution.
- January 08, 2015. Letter to Legislators Regarding the Lack of Quantification in the Proposed CSKT Compact, prepared by Richard A. Simms
This paper discusses the substantive reduction of historic use of agricultural water in the Flathead Irrigation Project and its conversion to instream flow as an inappropriate and potentially illegal substitute for the quantification of the federal reserved water rights of the CSKT. The paper also discusses a number of tenets of federal law reserving Indian reservations and federal reserved water rights, including the fact that federal reserved water rights arise out of the federal reservation of land.
- February 03, 2015. Letter to the Montana Land and Water Alliance Regarding Why it is not possible to “do anything you want” in a compact negotiation, prepared by Jay F. Stein and James C. Brockmann
This paper describes that there are ‘sideboards” on any federal reserved water rights negotiation and why the approach used in the negotiation of the CSKT Compact is legally improper.
- February 11, 2015. Letter to Legislators Regarding No Ratification in Partial Response to Compact Commission’s Critique of January 15, 2015 letter, prepared by Richard A. Simms
This memorandum reinforces the concepts presented in an earlier letter to legislators and identifies the specific provisions of the compact that (1) effectuate the permanent conversion of agricultural waters to instream flow, (2) the core features of the compact that deprive the state of Montana of its constitutional and statutory obligations to administer water within the reservation, (3) the provisions that eliminate certain legislative and judicial prerogatives, and (4) the provisions of the compact that give the Tribes an enormous amount of water not based on the doctrine of federal reserved water rights. The paper also reinforces that it was the United States, not the Tribes that reserved the Flathead Indian Reservation; otherwise the federal reserved rights doctrine could not have been expanded to include non-Indian federal reservations of land.
- March 18, 2015. Letter to Legislators Regarding the 10,000 Claims Threat, prepared by Richard A. Simms
This memorandum explains why the threat of 10,000 claims to be filed by the CSKT in Eastern Montana if the Compact fails is prohibited by the Treaty of Hellgate, the Judith River Treaty, and by U.S. Supreme Court case law involving Article III of the Treaty of Hellgate and other “Stevens Treaty” tribes. The paper also addresses why there is no legal or factual precedent for transforming an access right into a water right.
- April 6, 2015. Memorandum on Constitutional Violations that will Result with Compact Ratification, prepared by Richard A. Simms
This memorandum describes the violations of the Montana Constitution that will result from ratification of the CSKT Compact and in particular, the Unitary Management Ordinance proposed as the law of administration for the Compact. Articles V (the Legislature), VII (the Judiciary) and IX (Natural Resources) are impacted.
APPENDIX A: Synopsis of the Simms, Stein, Brockmann Legal Analysis of the CSKT Compact