It is unfortunate that the court system has become a legal strategy used by the federal government, the CSKT, and even rogue irrigation commissioners to attempt to bankrupt and frighten people into settling for tribal control of all the water within the boundaries of the Flathead Indian Reservation as well as significant amounts of water off reservation. It is also unfortunate that irrigators been targeted for the brunt of the compact proponent’s “divide and conquer strategy.”
Lawyers from the Tribe, the Feds and the State “negotiated” the very bad documents represented in the water compact. If the existing documents are ratified, it will be necessary for people to hire their own attorneys to defend against tribal jurisdiction and the private property rights takings it represents.
To make attempts to legally protect property rights once the compact is ratified difficult and unreachable for most, the compact documents also include mutual defense clauses. This is likely to ensure that any citizen forced to sue for property takings or constitutional violations will be up against the deep pockets of the state, the federal government and the tribe. All three of these entities, of course, are funded with our tax dollars.
This page is dedicated to providing information concerning legal activity that has taken place thus far on the compact, the water use agreement and water rights related issues. To begin with, here is a recap sheet of many legal documents and court cases that are important to the issue of federal reserved water rights. Click on a link below to go to the information
Flathead Irrigation Project Water Use Agreement (Part of the Compact)
Documents Related to the 12/2013 Collapse of the FJBC
CSKT v. Everyone Lawsuit 02/27/2014
Irrigation Project Turnover Suit 04/02/2014
FJBC Individuals v 64th Legislature, MT Governor and AG 04/20/15
FLATHEAD IRRIGATION PROJECT WATER USE AGREEMENT
In May of 2012, the public and irrigators were introduced to the irrigator “stipulation agreement”, now called the Flathead Irrigation Project Water Use Agreement (FIPWUA). This document was “negotiated” between the Flathead Joint Control Board (many members who have since been replaced through recalls and elections) and the United States / CSKT. It is still touted to be an important part of the settlement because it presented a “major piece of irrigator protections.” It was intended to address a large piece of the puzzle: how water rights and usage will be defined for the Flathead Irrigation Project going forward.
The current iteration of the FIPWUA requires irrigators RELINQUISH their project water rights to the tribe (note the word relinquish, not make junior), in exchange for money for improvements (maybe), and an allotment of water that many irrigators say will not be enough for their operation to survive. Litigation on this component of the compact has led to a district court judge ruling this agreement to represent an unconstitutional taking without compensation. While the Montana Supreme Court subsequently overturned portions of this ruling, the “unconstitutional taking” language still stands.
The state conveyed to the public this is a “private” agreement that they are not part of. FOIA requests concerning this agreement, and comments made by the irrigation district attorney indicate otherwise.
Concerned Citizens has long held that the compact is supposed to quantify the tribe’s water rights, not irrigators. The only reason a water use agreement was necessary is because the state acquiesced to the tribe’s demand for ownership of the project water right and an agreement became necessary to try to “protect” irrigators by making sure they got at least a little bit of water, and amount that wasn’t even close to historical use.
As of 08/30/2014, the proposed compact abstracts still include 100% of project water in the name of the United States / Tribe. The abstracts in the appendices designated 90% of project water with a time immemorial priority date for fish and 10% of the water for irrigation purposes.
WESTERN MONTANA WATER USERS V FJBC
12/06/2012 WMWUA vs. FJBC and Mission, Jocko and Flathead Irrigation Districts
02/15/2013 Judge CB McNeil’s Ruling
02/22/2013 Amended Writ Petition
This ruling paved the way for two suits to be filed in the Montana Supreme Court. In February 2012, the CSKT filed for a writ of supervisory control to try to circumvent the district court, and the Flathead Joint Board of Control Filed an appeal with the supreme court to overturn the writ of mandate from the McNeil ruling. To access all the documents related to these two suits go to the Montana Supreme Court Docket Search for Closed Cases: http://supremecourtdocket.mt.gov/ . Type in SHUCK under case attorney, and both will come up.
CSKT V 20TH JUDICIAL DISTRICT
WESTERN MONTANA WATER USERS ASSOCIATION VS JOCKO VALLEY, MISSION AND FLATHEAD IRRIGATION DISTRICTS AND THE FLATHEAD JOINT BOARD OF CONTROL
02/25/2013 FJBC files appeal
03/21/2013 Brief Compact Commission
03/21/2013 FJBC Brief
03/21/2013 Amicus Brief CSKT
03/22/2013 Amicus Brief Montana Water Resources Association
03/27/2013 Brief WMWUA
04/01/2013 WMWUA Reply
04/03/2013 Writ of Mandate Vacated
04/09/2013 Supreme Court Opinion Published
SUPREME COURT PLEADINGS – Click on the supreme court docket link for closed cases, and type in SHUCK as the attorney name.
The lawsuit and subsequent “unconstitutional taking” ruling forced a compact commission discussion of ”other options” to this agreement. It is likely they found one through the collapse of the old Joint Board of Control, saying that the proposed agreement was no longer valid. As of August 2014, the Compact Commission has decided they will step in to “negotiate” for irrigators.
LEGAL DOCUMENTS RELATED TO THE COLLAPSE OF THE FLATHEAD JOINT BOARD OF CONTROL IN DECEMBER 2013
In September 2013 two commissioners each in the Jocko and Mission Irrigation Districts voted to withdraw their districts from the Flathead Joint Board of Control, dissolving it and inadvertently collapsing the project management operations. These two districts also hired attorneys and initiated a series of defensive lawsuits to protect irrigator water rights and prevent these districts from “relinquishing” them to the CSKT. Note: There are others, but we do not have copies of all the documents for reference. If you have copies of others, please forward them and we will post.
Here are some of the resulting documents for reference:
10/16/2013 Mission and Jocko Districts Move for Injunction to Prevent Referendum
11/01/2013 Order Denying Motion for Injunction
12/04/2013 FJBC Amended Water Claims with Montana Water Court
IRRIGATION PROJECT WATER RIGHTS
On 02/27/14, the CSKT Filed a lawsuit in the Missoula Federal District Court. In the suit, the CSKT attempt to circumvent the water compact / irrigator water use agreement to have the federal government declare that the CSKT do in fact own all the water. Although the Tribe calls this a “narrowly tailored” suit, designed specifically to go after the irrigation water, it states as “fact” very dubious legal theories and rewrites of more than 100 years of history to claim they own all the water flowing through, over and beneath the Flathead Reservation. They also lay the foundation for the claim that all of the existing private land on the reservation was never removed from aboriginal title and as such the homestead and allotment acts do not apply. Would you be surprised to know that the CSKT were paid for the lands that they now claim they still own?
CSKT Lawsuit 02/27/14
Letter to Attorney General Tim Fox re: asking him to intervene in the CSKT Lawsuit to protect Montana’s institution and the water / property rights of its citizens.
Flathead and Mission District Response 05/11/14
Jocko District Response 07/03/14 – will be added when it is made available
Attorney General Fox Response – Montana’s attorney general seems content with kicking the can down the road, filing a motion to dismiss, and not choosing to come out strongly against the assumptions and premises made by the CSKT in their lawsuit.
Mountain States Legal Foundation Responses – Mountain States Legal Foundation is defending two families individually named in the CSKT lawsuit.
Montana Water Court and 20th District Courts Responses
CSKT Responses to Motions to Dismiss
United States Motion for Extension of Time
Lawsuit Dismissed with out Prejudice 05/18/15
Other Cases Mentioned in the Briefs:
RE: IRRIGATION PROJECT TURNOVER
In December 2013, four rogue commissioners of the Mission and Jocko Valley irrigation districts, collapsed the Flathead Joint Board of Control of the Flathead Irrigation Project. This was a blatant attempt to have two out of three irrigation districts ratify the irrigator water use agreement and gain momentum for the water compact.
An unintended consequence of this action was the commissioner’s failure to consider that a consequence of their decision would be the demise of the Cooperative Management Entity, an organization that was established to manage project operations and to ensure water deliveries to irrigators.
Ignoring the desire of the districts and irrigators whose lands are served by the project to take on this role, the BIA unilaterally reassumed project operations earlier this year. It also appears that their deference to the tribe includes the implementation of components of the compact / water use agreement ahead of any approval or ratification.
This is an expensive proposition for irrigators in the form of much higher government wages, and the loss of experienced non-Indian workers, but it also is causing financial harm to irrigators in terms of reduced water for their growing season. On 04/02/14 The Flathead Irrigation District filed suit for declaratory and injunctive relief concerning this issue.
07/28/14, an Amended complaint was filed in this lawsuit.
08/28/14 brief in support of TEMPORARY RESTRAINING ORDER, DISCOVERY AND HEARING REQUEST, filed providing evidence that BIA is implementing policies that are detrimental to the ability of irrigators to plan their operations.
05/21/15 a 2nd Amended Complaint was filed
08/19/15 Order Granting Motion to Dismiss
On Monday April 20, 2015,, the Flathead Joint Board of Control and several individual members of the Board filed suit against the state of Montana to void the vote on the water compact.
The suit is based upon language in the compact concerning waivers of immunity from suit. Article 2 Section 18 in the Montana Constitution states:
The state, counties, cities, towns and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature.
Attempts were made on the house floor to change the language in the compact that would have removed this immunity issue and therefore the 2/3 vote requirement. However, Steve Fitzpatrick and the supporters of the compact successfully resisted this amendment as well as all others, and stopped the bill from going to house appropriations for scrutiny as well.
Here are copies of the filed petition and AG’s office response. Note that the AG’s attorney response completely ignores the whole purpose of the suit, the immunity waiver, and the invalidity of the vote on SB262.
Petition FJBC Individuals filed 04/20/15
AG Attorneys Response filed 04/22/15
AG Brief to Support Change of Venue 04/22/15
Plaintiff Response to AG Response 04/24/15
Plaintiff Response to AG Motion to Change Venue 04/24/15
Order Denying Motion for Change of Venue 05/27/15
Order Setting Scheduling Conference 05/27/15
Motion to Dismiss 07/02/15
Brief in Support of Motion to Dismiss 07/02/15
FJBC Response to AG Motion to Dismiss 08/04/15
State’s Reply In Support of Motion to Dismiss 08/21/15
State’s Notice of Supplemental Authority 08/27/15
State’s Motion to Stay Discovery 10/06/15
Brief in Support of State’s Motion to Stay Discovery 10/06/15
Order Denying Motion to Dismiss 12/02/15
Tribe’s Brief for Motion to Intervene 12/10/15
Tribe’s Response to First Amended Complaint 12/10/15
Order Granting Tribe’s Motion to Intervene 02/02/16
Tribe’s Motion for Summary Judgment 02/11/16
Plaintiff’s Brief in Support of Motion for Partial Summary Judgment 02/16/16
State’s Brief opposing Motion for Partial Summary Judgment 02/16/16
Plaintiff’s Response Brief in Opposition to Intervenor Defendant CSKT 03/02/16
Plaintiffs Reply Brief to State Arguments 03/21/16
Plaintiff’s Reply Brief to CSKT Arguments 03/23/16