© 2024 Concerned Citizens of Western Montana
“To secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.” Sun Tsu
Sometimes it seems that we give the compacting much more credit than they deserve.
While they definitely know how to exploit the corruption that exists within the legislative, executive and judicial branches of government, and the tribe managed to stonewall and litigate its way to an unconstitutional and unlawful “negotiated water compact settlement”, we can’t help but wonder if their hubris, arrogance and overreach could now very well be their Achilles heel.
The Ciotti Decision
We’ve discussed before the adjudicative stays that were imposed by the water court via the Montana Supreme Court Ciotti decision.
The Ciotti decision was the outcome of a series of lawsuits initiated by the tribe in the 1970’s that were intended to stop state administration of water on the reservation. The tribe has been very consistent and quite successful in their objective to slow down development of new water claims and limit changes of existing uses of water by private landowners within reservation boundaries.
In 1996 a Montana Supreme Court held that the state of Montana was precluded from adjudicating water rights on the Flathead Reservation because the CSKT reserved water rights had not been quantified. This is known as the Ciotti decision. The decision said in part:
….. an applicant for a permit to use water within the exterior boundaries of the Flathead Reservation must prove that his proposed use does not unreasonably interfere with the Tribes’ reserved water rights. We hold that given the nature of Indian reserved water rights such a showing cannot be made until the Tribes’ rights are quantified ….. we further hold that DNRC does not have authority to grant water use permits on the reservation until that quantification is complete……
For all intents and purposes, the Ciotti stay should have been lifted after the compact that supposedly “quantified” the tribe’s water rights was passed by the Montana legislature in April of 2015.
But not so fast.
Basins 76L and 76LJ: The Other Water Court Proceeding
Shortly after the compact was ratified, the Montana Water Court moved to remove the Ciotti stay, but the mutual defense provisions of the compact kicked in and the three amigo governments immediately aligned to petition the court to continue the stay in those basins.
We believe there are a variety reasons for these extensions, but think that main reason is because the compact parties desired to have the Flathead Compact implemented before the water court made a decision on it.
There is also little doubt that pre-Water Court implementation language in the Compact was meant to insure that the federalization of western Montana’s water was realized well before people had a chance to litigate it in the Water Court or any other courts of law.
It has never made sense that the legislature would ratify a compact with language in it provided for compact implementation well before the people affected by it could object to the compact in a court of law.
This clearly is a violation of due process protections under the Constitution, but then again, most Montana legislators voted for the compact after admitting on the House floor that they had not even bothered to read it.
Since 2015, the stay has been extended several times, essentially unbeknownst to the general public. The Water Court proceeding for those basins are under case numbers BASIN-0001-76L-1985 and BASIN-0002-76LJ-1985. These stays effectively prevent the state from approving any new water uses within reservation boundaries that have been applied for since 1996, making one wonder if they will ever be approved now that the process is under the control of the tribe.
The compact effectively awards the US / CSKT most if not all of the water on the reservation, so any such claims must now be approved by the tribally controlled water management board, if they will ever be approved at all. We see no provisions in the compact that require the tribe to do so.
Are There Chinks in the Compact Parties’ Armor?
Each time the stay in basins 76L and 76LJ is extended, the parties must file motions and briefs with the Water Court specifying their reasoning for wanting the stay extended yet another time.
As the Water Court proceedings have moved forward toward Compact Closure, and additional briefs are filed pertaining to the extension of these stays, we have observed what almost seems like increasing desperation on the part of the compacting parties in their arguments.
Most of the briefs supporting extensions of the adjudicative stays focused on using the threat of the tribe’s 10,000 claims as a way to get the water court to acquiesce to the extension. This tact has worked magnificently.
See: Have the Tribe’s 10,000 Claims Come Home to Roost?
The U.S. Brief in Support of an Extension 03/29/2024
We recently thanked all of the Compact Davids (objectors) for fighting back against the egregious water compact. As of the writing of this post there are approximately 600 objectors that remain standing.
The sheer scope and magnitude of 600 objectors actively participating in such a proceeding is clearly getting to the compact parties.
We’re not sure, but almost wonder if the word panic is applicable in the case of the United State’s brief.
In their brief to extend the stay, the poor United States doesn’t have the resources to deal with the Flathead Compact Decree objectors, let alone deal with a Compact created and the very complex adjudication of the water rights in Basins 76L and 76LJ resulting from their compact overreach.
We explained in section I above the extraordinary demands that the litigation track of the CSKT Decree has placed on the available technical and legal staff of the United States and Tribes. It has largely consumed attorney and technical staff time since inception. Besides the litigation phase, knowledgeable federal staff are engaged in other aspects of the overall settlement and management of a related federal program — (i) implementation of the Compact, e.g., the state-federal land exchange; (ii) ongoing operation of the Bureau of Indian Affairs’ Irrigation Project on the Flathead Reservation, a large enterprise with attendant operations questions annually. They also have extensive other case work.
To add to that heavy burden the further responsibility of investigating the thousands of claims in preliminary decrees for basins 76L and 76LJ will prejudice the United States and the Tribes. If the preliminary decrees for these basins are issued, staff from the United States and the Tribes will need to review thousands of water rights claims filed in the early 1980s under state law, determine whether objections should be filed, and prepare those objections, all within 180 days. This will be a very resource-intensive examination and the simple fact is that neither the Tribes nor the United States have unlimited resources.
Even more interesting is the fact that the Feds are now trying to invoke the public welfare, as though they are concerned about the effect the compact will have upon water users in such a complicated adjudication process:
The United States asks the Court to continue the stay of the state-law based claims in the preliminary decrees for basins 76L and 76LJ through January 31, 2025. Such an extension is consistent with the three criteria the Court uses to assess stay requests in this case.
First, the extension request is within the Court’s inherent power to control its docket.
Second, the extension request would allow the United States and Tribes to have adequate time and resources to complete the quantification of the Tribes’ crucial water rights in Case No. WC-2021-01 and carry out other necessary duties (like implementing the compact?).
Third, the stay would advance the public welfare by reducing the level of confusion among water users in the two basins, leading to fewer errant filings and a greater awareness of the importance for water users to scrutinize the state-law water rights claims presented by the two basin preliminary decrees.
Let’s be real. Had the United States ever been concerned about the public welfare they would not have gone along with the overreach that is in the compact, and instead would have supported a bona fide Federal Reserved Water Rights Quantification for the tribe’s water rights. Instead, we have what was intended to be a bullet proof compact monstrosity approved by the United States, CSKT and the state of Montana that objectors are valiantly trying to beat down.
See: United States Motion for Extension of Stay in Basins 76L and 76LJ
The Tribes’ “Additional Brief” in Support of Extension 03/29/2024
More striking than the Feds brief is the tribe’s “additional brief” in support of the extension.
The poor, pitiful and mistreated CSKT tribal government.
The 4/ ½ page brief goes through a litany of all of the wrongs that the State has committed against the tribes beginning with the incorporation of the McCarran Amendment into Montana Water Use Act, and throughout the compact negotiation process.
The tribal government clearly demonstrates that it believes itself to be sovereign at a level equal to or above the State of Montana. We argue also that they also believe themselves to be sovereign above even the United States, because of course, “the tribe was here first.”
NOTHING THAT EFFECTS THE TRIBE SHOULD EVER BE DONE WITHOUT THEIR PERMISSION!
See: No One Dares Tell the CSKT What they Can or Cannot Do!
Also according to the brief, the tribe must be allowed to continue their compact mandated provisions to implement the compact ahead of and during the Water Court proceedings.
… the Tribes are uniquely prejudiced in that they are also actively engaged in Compact implementation which cannot wait until after adjudication. In accordance with the Compact, the Compact Implementation Technical Team was formed and has been meeting since 2016. See, Art. IV.G.(2) and (3) of the Compact, codified at 85-20-1901, MCA. Likewise, the Flathead Reservation Water Management Board was also formed following the Effective Date (September 17, 2021) and has been meeting since February 2022. See, Id. at Art. II(34).
Additionally, registration of the Tribal Water Right is required to be completed within 5 years of the Effective Date, and the Tribes have set up an office to review and prepare registrations of both the Tribes’ use of the Tribal Water Right as well as to assist Tribal members and Allottees. See, Id. At Art. III.C.1(b), and Sec. 2-1-102(1) of the UAMO, codified at 85-20-1902, MCA. The same Tribal staff are engaged in all of these implementation activities.
See: CSKT Additional Motion / Brief for Extension of Stay
Clearly All is not Well with the Compact Parties
Was the failure to submit motions to dismiss objectors a legal strategy by the compact parties, or is it the beginning of the unraveling of the three government water compact alliance?
We have heard that the tribe is very unhappy that they have to defend their compact, and that water users have been given the opportunity to object to it.
While untrue, it is the CSKT’s opinion that the other tribes did not have to defend their compacts and neither should the CSKT. After all, according to the tribe, the Hellgate treaty gave the CSKT all of the water flowing through, over and under the reservation, not withstanding that the treaty provided for allotments of land to individual Indians and the opening of the reservation to settlement.
We cannot even begin to know how angry the tribe must be that more than 600 objectors still remain in the proceedings.
HUGE Smile.
Let us pray that the CSKT government continues to show its true colors. What a glorious day it will be if “the opportunity of defeating the enemy is provided by the enemy himself.”
The CSKT are well on their way toward accomplishing that for us. It’s very likely just a matter of time before their disdain for the state of Montana and its citizens will fully expose their overreach in the compact, and their future plans.
And lest we forget, the tribe and United States also have a plan B written into the compact should the “agreement” implode in the Water Court.
The 10,000 claims are sitting out there for a very important reason.