© 2023 Concerned Citizens of Western Montana
We would like to begin this article by apologizing for the complexity of the information that we are attempting to provide in this series of articles about amending objections. The simple truth is that it shouldn’t be as complicated as it’s become.
It is unconscionable that the state of Montana would place its citizens in the position of having to litigate the far reaching and very serious issues presented by this compact under the guise of what clearly is a controlled and limited “Special Proceeding” judicial review of the compact.
If Montana had any guts at all, it would have taken this litigation on because of its own interests, the interests and protection of its citizens, and for other western states that also will be affected by it.
Over the years the so called “compact negotiation” sessions often displayed a “fear of litigation strategy” by the compacting parties, attempting to give the public the belief that the compact was the only way to avoid expensive litigation.
At our very first town hall meeting held in June of 2012, Chris Tweeten, chairman of the Montana Reserved Water Rights Compact Commission told everyone that if the compact was not ratified, everyone would have to hire an attorney to defend their water rights.
In 2015 at the Senate hearing for SB262 sponsor Chas Vincent conveyed a similar sentiment: “if you have Walton Rights … go adjudicate ‘em. …… But why drag everybody else from the Idaho border to Townsend into court with ya? What the Senator from Libby willfully failed to recognize, is that the compact process ensures that Montanans holding these valuable water rights cannot compete with the time immemorial water rights awarded to the United States / CSKT in his legislation.
Thanks to the efforts of Jon Tester, Greg Gianforte, Steve Daines, Dan Salomon, Bruce Tutvedt, Steve Bullock, Tim Fox, Chas Vincent, and many others, we are faced in 2023 with a compact that has such far reaching implications, that there really is no choice but to litigate it.
A Water Rights Adjudication versus a Special Proceeding
A typical water rights adjudication is a far simpler process, and is significantly more limited in scope than this water compact “Special Proceeding.” Generally water rights holders are simply looking at the claims of others that may encroach upon or negatively affect their personal water right or rights, usually within a single basin. Those issues are then resolved between water users prior to the issuance of a final decree.
By all appearances, the Montana Water Use Act, the Water Rights Adjudication rules and other statutes were written for a standard water rights adjudication type process.
This means that most water users in a standard adjudication don’t have to deal with a consent decree standard of review, fraud, collusion, overreach, fairness and adequacy, or whether the agreement is in the public interest. This is because your original water rights were not “negotiated” by the United States, state of Montana and CSKT.
Many of the complicating issues that objectors are now dealing with, including objections and amendments to them pertain to the fact that the state, and seemingly the water court are trying to fit the compact (a square peg) into a round standard adjudication hole.
![Square Peg Round Hole](https://westernmtwaterrights.wordpress.com/wp-content/uploads/2023/10/square-peg-round-hole.png)
This explains why the court’s objection form for the Flathead Decree is simply a slightly modified version of the form used in a standard adjudication process. It doesn’t give an inkling to non-attorney objectors that in addition to items 3 and 4 specified on the form, objectors must also articulate their legal and constitutional objections to the compact, and proactively address other issues such as fraud, collusion, overreach, fairness, adequacy, as well as any other concerns in their objection. Otherwise the objector loses their opportunity to carry such issues forward in the current proceeding as well as to any appeal courts.
Non-attorney’s that we are, common sense tells us that it is as though objectors have been asked to file a complaint in a lawsuit without ensuring that their complaint is complete so that the issues can effectively be argued and resolved on the merits.
It is this process flaw that seems to have been the gotcha in many of the other compacts that prevented objectors from successfully proving their cause. As a result, not one of the previous compacts came even close to being voided by the water court.
Previous Water Court opinions for many other compacts seem to have been the means used to develop, establish and articulate the Water Court’s Compact Special Proceeding “rules” that will now be used for this Flathead Compact special proceeding.
Unfortunately for objectors to the Flathead Compact decree, this compact isn’t even in the same universe as other compacts which for the most part were accomplished within the legal context of the Winter’s Doctrine as a federal reserved water rights settlement.
This is why we are requesting that every objector to the Flathead Compact that wants to continue in the hearing track to review their objection to ensure that it provides the solid foundational basis for all of your arguments going forward.
Why is the Flathead Compact in a Special Proceeding?
With full knowledge of the complexity, vaguery, and the legal and constitutional issues presented by the compact, the compacting parties’ joint motion to the water court to incorporate the Flathead Compact into a Preliminary Decree, Create a Special Proceeding and to Hear Objections went to great lengths to convince the court that a Special Proceeding for the Compact was not only appropriate, but that it was necessary.
The compacting parties asked the Water Court to Create a Special Proceeding to Review the Tribal Water Rights Recognized in the Flathead Compact.
Here are some excerpts:
- First, the Special Proceeding approach contemplated by the Compacting Parties for the review and approval of the water rights recognized in the Flathead Compact is the same one utilized in reviewing other water rights settled through compacts.
- Second, Under federal law, the Tribes have water rights both on their Reservation and to support off-reservation treaty-recognized natural resource use sites in western Montana. Because these tribal water rights don’t fit neatly into the basin specific approach that the Water Court typically uses, such UNIQUE types of rights and a multi-basin geographic scope are beyond the typical state law water right claimant. Therefore, opening a special case to address this unique situation is entirely appropriate.
NOTE: The compacting parties admit here that the scope of this compact is beyond the typical state law water right claimant, however that is exactly what Judge Brown has asked objectors to participate in. We are talking about litigation on SIGNIFICANT LEGAL ISSUES that even Montana was afraid to litigate. What a sorry excuse for a State government.
- Third, a single proceeding to address the rights of the Tribes is much more efficient than requiring the Compacting Parties to present their case in every basin where the Tribal water rights are recognized under the Compact. Including the Tribal water rights separately in each of the basins would be burdensome and unworkable for the Compacting Parties…..the Compacting Parties would face an unnecessary multiplication of effort, as they would be required to explain and defend the Flathead Compact in eleven independent basin proceedings. Therefore, a Special Proceeding to review the Flathead Compact water rights is imperative to save the Court and the Compacting Parties’ time and resources.
- Fourth, a multiplicity of proceedings would also increase the prospect that the decree process for the Tribal water rights would not occur in a timely manner, with potentially severe consequences for the Flathead Compact. …Significant delay implicates several potential chances to end the Flathead Compact.
- Fifth, the Daines’ Settlement Act provides that a significant portion of the Federal settlement funds are not available to use for a large number of purposes until after the enforceability date, which as explained above includes that the Water Court has approved the Preliminary Decree.
From this information, it’s abundantly clear that the compacting parties do not want their compact claims to be scrutinized within a standard water rights adjudication process.
It is almost as though the compacting parties couldn’t hide the overreaching effects of the compact in their motion, yet chalked up their request for a special proceeding to economics and resource limitations, hardships on the water court and the compacting parties, and the uniqueness of the phony tribal reserved water rights that they inserted into the compact.
It cannot be forgotten by objectors that the Flathead Water Compact completely repudiates the Winter’s Federal Reserved Water Rights legal doctrine from which all of the other compacts were developed. The compacting parties colluded together to insert tribal reserved water rights created out of thin air into the compact, in lieu of federal reserved water rights. The water rights in the compact are exclusively tribal reserved water rights that have no foundation in the law or the tribe’s treaty.
![Tribal Reserved Claims in CSKT Compact](https://westernmtwaterrights.wordpress.com/wp-content/uploads/2023/02/tribal-reserved-claims-in-cskt-compact-1.jpg)
It’s abundantly clear that the compacting parties are afraid that the compact claims would be far more scrutinized within a standard adjudication process.
The Water Court happily complied with this request, however in their June 2022 Notification for Entry of the Flathead Compact Preliminary Decree they said this:
Any objection to the procedure being followed in this matter may be filed in any format which is in compliance with the Montana Rules of Civil Procedure.
We cannot urge strongly enough that objectors remaining in the Flathead Compact Decree proceeding object to the SPECIAL PROCEEDING of the Water Court when they amend their objection and ask that the Flathead Compact claims be inserted into the adjudication of each of the eleven basins affected by the compact. Otherwise Montana Water Users will not be able to scrutinize them along side of their own water rights, and object to them appropriately.
Currently, objectors to the Flathead Compact are most likely destined to fail in a “Special Proceeding” where the game has already been rigged against them, and where it is highly likely that the typical sideboards and rules may not specifically apply. Either that, or the court can wing things procedurally by virtue of the fact that it is deemed a “special proceeding” and state law does not define the process, or place sideboards upon it.
We also believe that the state must adjudicate the US / CSKT 10,000 claims in a similar fashion. It’s time to pull the band aid of adjudicative stays off the wound and allow the tribe’s ridiculous claims to be exposed to every Montanan in an area covering 2/3 of the state. This is the only way that folks will be able to see the full scope of the fraud, collusion and overreach that Montana not only participated in, but allowed the United States and CSKT to get away with.
What the Compacting Parties failed to disclose in their Motion
Objectors should also make note of the fact that there are other undisclosed reasons by the compacting parties as to why they didn’t want the compact claims placed into the adjudicative proceedings:
The Unitary Management Ordinance monster created by the compact has no place in a water rights adjudication process. In June of 2012 CSKT attorney John Carter made it clear that “If the board is removed from the compact, the mechanism for the compact to move forward ceases.” This is because the sole purpose of the Unitary Management Board is to protect the tribal water right by controlling non-Indian uses and development of what the compact declares to be “the tribal water right.”
A second reason is the fact that the compact failed to provide a final resolution of the tribe’s water rights. The compact dismissed all of the US / CSKT other lawsuits and claims, including Ciotti, Abell, and the 10,000 claims without prejudice, meaning they can be brought up again in future litigation.
We believe that once the tribes’ proper federal reserved water rights have been adjudicated in the state of Montana general stream adjudication, the tribe’s water rights would be FINAL.
The compacting parties clearly don’t want to see finality to the tribe’s claims, because their strategy of coercion and overreach has proven to be a very effective weapon wielded upon state leadership, and the people of Montana.