© 2023 Concerned Citizens of Western Montana
We have nothing but appreciation and respect for each person and entity that objected to the Flathead Water Compact.
This post is directed at preparing objectors for what we believe will be a swift hearing track motion by the compacting parties to dismiss all objections and to approve the compact.
Our hope is that it will prepare you for the scope and level of aggression that we believe the three amigo governments will exert in order to plow through the 1,000 or so objectors to the Flathead Compact. Lest we forget, it was the willful fraud and deceit already perpetrated by the compact commission and the compacting parties, in collusion with a handful of state legislators, that brought us to the place we are today.
The compacting parties are very close to achieving their wildest dreams come true, which consists of no less than a complete evisceration of Federal Reserved Water Rights and the insertion and illegal “legal” establishment of time immemorial Tribal Reserved Water Rights in its place.
Here are just two of many well documented examples showing the extent the parties to the compact were willing to got to in order to achieve state ratification of the compact:
Know thy enemy, and resolve yourself to the fact that the compacting parties are so close to achieving their objective that they will use every weapon in their arsenal to make mincemeat of whatever stands in their way. At this moment in time, it is the objectors that are in their way.
If the compact is allowed to stand, it will forever change the nature of property ownership, will undermine land patents and water rights, and necessarily will have a resounding and devastating effect on the western United States.
In contrast, what objectors to the Flathead Compact have accomplished thus far is astounding. The number of objections to the Flathead Compact in and of itself should speak volumes to the Water Court as to the overreach it represents:
From what bits and pieces we know about the other compacts, there have only been a handful of objectors in most of them. Even the controversial Forest Service Compact had very few considering the scope and open ended nature of the agreement.
The parties to these compacts are used to swatting objectors away as small nuisances.
Let us pray that these arrogant bastards the compacting parties will hang themselves on their own Flathead Water Compact petard.
Prepare for Motions to Dismiss
We have heard that representatives of the compacting parties have threatened that they have researched the water rights of objectors, and if an objector is unable to prove damages, THEIR OBJECTION WILL BE DISMISSED.
Realistically this actually may be more of a promise than a threat.
We are not sure that “damages” mean monetary damages as much as it may mean articulating specifically and showing proof as to how your water right will be harmed by the compact. The statute pertaining to objections mandates that:
Objections and counter-objections MUST specify the paragraphs and pages containing the findings and conclusions to which objection is made. The request must state the specific grounds and evidence on which the objections are based.
However there are other important damages to be considered as well. The Unitary Management provisions of the compact clearly violate our right to equal protection and due process under the law, not to mention the deprivation of a REPUBLICAN FORM OF GOVERNMENT.
And if all of that isn’t enough, the compact violates the promises made by the United States in our land patents by removing appurtenant irrigation water rights from privately owned lands and giving them to a tribal government, resulting in the relegation of private landowners with bona fide water rights to mere users of the tribe’s water instead.
IMPORTANT: We should also not forget that the parties to the compact failed to provide a quantification of the federal reserved water rights of the tribe, making it impossible for water users to know the scope and magnitude of the effects the compact can have on individual water rights.
Additionally, the so called “call protections” in the compact that are proffered to all water users except large irrigators is little more than an empty promise. The tribe need only call one large irrigator to begin a domino effect of water calls on junior water rights for any use or purpose.
Again we have very little to go by concerning the water compact proceedings but we did come across the Montana Attorney General’s Documents pertaining to the Fort Peck Water Compact. It actually has enough information to be able to discern the hearing track process that will likely be followed for the Flathead Compact.
First up in the Fort Peck proceeding, appears to have been the state Attorney General filing of a Memorandum in support of motion to dismiss objections and approve Fort Peck Compact.
In Fort Peck, there were three objections filed, one was dismissed for lack of ownership interest in water or its use that is necessary to have standing to challenge the compact.
In his Memorandum, the Attorney General attacked the objections as having doubtful merit on their position, and also on the fact that:
Neither of the other objectors specify how they have been affected and the evidence in support of that allegation is an integral part of the general adjudication process and essential to the efficient disposition of claims and objections. The drafters of MCA 85-3-233 sought to avoid clogging the adjudication process up with extensive pretrial motion and discovery practice by requiring all objectors to specify, up front, certain basic aspects of their objection. The objectors have failed to meet these basic requirements and for that reason they should be dismissed.
Because the state raised this issue to the Water Court, and the United States and Fort Peck tribes agreed, the court asked the State to elaborate on their statement, and the compacting parties issued a Consolidated Reply Brief addressing the issue of whether any of the objectors have met their burden to state a legally cognizable objection under MCA 85-2-233 (1) (b) and (3).
Legally Cognizable means capable of being tried in court.
This is a fairly brief legal document and we hope that objectors will review it and consider their own objection in light of it. If you believe your objection may be deficient, you might want to look into making an amendment to your objection to strengthen it, or at a minimum, come to the hearing track prepared to provide the information necessary to the Water Court.
We hope that all objectors take the time necessary to consider the content of their objection or objections to ensure that they will be able to fully address this requirement.
We believe that history will not be kind to Montana’s Federal Reserved Compacting process. Ultimately the Montana Reserved Water Rights Compact Commission will be one of the biggest scams and scandals in our State’s history. And those of us that fought it will be on the right side of history to be sure.
Note: We will soon be posting another article with copies of the well written briefs filed by objectors in the Fort Peck case to provide you with examples of the process and documents that were presented to the court. We must also mention that despite the fact that these objectors had the benefit of attorneys, the Water Court dismissed the objections for “failure to meet the requirements of 1995 MCA 85-2-233 (1)(a) and (3).” Note: the statute has since been amended and these provisions are now referenced the 2021 MCA as 85-2-233 (1)(a) and (4).
85-2-233. Hearing on decrees or petition — procedure. (1) (a) For good cause shown and subject to the provisions of subsection (9), a hearing must be held before the water judge on any objection to a temporary preliminary decree, a preliminary decree, or a supplemental preliminary decree by:
(i) the department; (ii) a person named in the temporary preliminary decree, preliminary decree, or supplemental preliminary decree; (iii) any person within the basin entitled to receive notice under 85-2-232(1); or (iv) any other person who claims rights to the use of water from sources in other basins that are hydrologically connected to the sources within the decreed basin and who would be entitled to receive notice under 85-2-232 if the claim or claims were from sources within the decreed basin.
(4) Objections and counter-objections must specify the paragraphs and pages containing the findings and conclusions to which objection is made. The request must state the specific grounds and evidence on which the objections are based.
We are not attorneys and this information is not intended to provide legal advice.
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