CSKT Compact Proponents and the Fool’s Errand

@2018 Montana Land and Water Alliance

A fool’s errand is described as a “task or activity that has no hope of success”.

The 1908 Amendment to the Flathead Allotment Act authorized the construction of the Flathead Irrigation and Power project to serve all lands within the reservation, including Indian allotted lands and unallotted lands settled by non-Indians under the various Congressional homestead and reclamation laws.  The 1908 Act contained a provision that once the project construction costs were repaid by landowners, the project management and operations would be turned over to the landowners therein.  These costs were repaid by landowners in 2004.

Then the CSKT Compact happened, and now Compact proponents are claiming that they can secure project turnover just like the 1908 Act said.

However, in the context of the CSKT Compact,and within Jon Tester’s senate bill, irrigation project compact proponents and landowners who think they can secure project management are wasting their time. Their task has no hope of success.

Why? The reason is that the details of the CSKT Compact itself forever prevent the landowners in the project, who paid for the FIPP, to manage anything other than their own demise.  To wit:

  • The CSKT Compact transfers the bare legal title to 100% of the project water to the CSKT.
  • The CSKT Compact replaces federal “project management” with management by the Compact Implementation Technical Team (CITT).  The BIA has an ‘advisory role’ on the CITT; project irrigators have one (1) representative; and the CSKT Compact’s project management goals are to transfer irrigation water uses to instream flow.
  • Resolution of disputes and water rights issues within the FIPP are delegated to the Tribes’ Unitary Management Board (UMB)
  • Jon Tester’s S. 3013 transfers the infrastructure (canals, laterals, storage facilities, pumps) of the entire FIPP to the CSKT
  • Jon Tester’s S. 3013 amends the 1908 Act to reject the provision that allows the turnover of  project’s management and operation to landowners within the FIPP (90% non-Indian).

Irrigators/landowners over generations who repaid the United States for the construction of the FIPP now have no avenue to secure project management and operations guaranteed by the 1908 Act because of the provisions of the CSKT Compact itself.

Irrigator project management of the FIPP under the CSKT Compact is a myth–it will never happen. A fool’s errand!

Don’t be fooled!

Advertisements

From “FINALITY” to Something Else

©2018 Concerned Citizens of Western Montana

Created by the Montana legislature in 1979, Montana’s Reserved Water Rights Compact Commission stayed within its legislative mandate and authority, at least in the beginning.  By all appearances, they had succeeded in developing at least two compacts that defined the federal reserved water rights for the Fort Peck and Northern Cheyenne Indian reservations and actually sought to provide a final resolution of their claims, giving some level of certainty to impacted water users within the hydrologic basins in which these reservations were located.

The Fort Peck water rights compact was negotiated by the Montana Water Rights Compact Commission under the chairmanships of Henry Loble and W. Gordon McComber.   In 1985 the Montana legislature ratified the Fort Peck water rights compactIt is codified under MCA 85-20-201.

ARTICLE I  of the Fort Peck compact begins with a clear purpose:

The basic purposes of this Compact are to determine finally and forever all rights of the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation in the State of Montana to water on, under, adjacent to, or otherwise appurtenant to the Reservation, to settle existing disputes and remove causes of future controversy between the Tribes and the State and between Indians of the Fort Peck Reservation and other persons concerning waters of the Missouri River……

ARTICLE IX is also clear in terms of the finality of the resolution of the tribe’s water claims:

The Tribal Water Right confirmed in Article III shall be final and conclusive. With the exception of the Tribal Water Right recognized herein and rights established under state law as authorized by this Compact, the Tribes and the United States as trustee for the Tribes hereby relinquish forever any and all existing and future claims to water from any source and for any purpose. This relinquishment includes, but is not limited to, any claim for water derived from: aboriginal use of land or water; any Indian treaties; any act of Congress; and any executive act of the United States.

The Northern Cheyenne water rights compact, ratified by Congress in 1992, includes similar intent and language.

But before the ink was dry on these two water compacts, the political winds in Montana were changing.  At the time the Fort Peck water compact was ratified by the Montana legislature, Chris Tweeten , an associate attorney general for the state of Montana was already a member of the Compact Commission.  He became its vice-chair in 1988, and ultimately became its chairman in 1993.

It is likely that Tweeten, who has indicated that he wanted to go beyond existing federal reserved rights law articulated in U.S. v. New Mexico (strictly limiting federal reserved water rights to the primary purposes of the reservation), had already formulated that personal goal in the early years of his tenure on the Reserved Water Rights Compact Commission.  Why else would his team come up with the notion of “reverse quantification“?

And that is exactly what we got in the 2015 CSKT water compact.  Not only does it cede to the United States an unknown and vast amount of on and off reservation water,  buried within 1,500 pages of legalese and water abstracts, it also attaches to them “time immemorial priority dates.”

Also buried within the tedious and monotonous language of the CSKT compact, is ARTICLE VII titled FINALITY.   Instead of a simple and clearly written paragraph that makes its finality abundantly clear, the CSKT Compact includes a minimum of several pages that, when boiled down, essentially says that after a final decree that includes the CSKT claims as per the onerous compact is issued, the Tribes, the State and the United States will file joint motions to dismiss all other claims in other lawsuits and filings with the water court, including the 10,000 claims WITHOUT PREJUDICE.

In the legal world, a court case that is dismissed with prejudice means that it is dismissed permanently. A case dismissed with prejudice is over and done with, once and for all, and can’t be brought back to court.  A case dismissed without prejudice means the opposite. It’s not dismissed forever. The person whose case it is can try again.

Do people understand that this will leave a dark cloud of uncertainty over all the water and property rights of citizens living in 2/3 of the state of Montana?  ARTICLE VII and the complete CSKT Compact language in Montana statutes can be found at this link:  MCA  85-20-1901.

So how did we go from a simple statement of finality in the Fort Peck Water Compact to the CSKT Compact that dismisses the tribe’s claims over 2/3 of the state of Montana without prejudice?

That is a good question to ask the state of Montana, Governor Bullock and staunch CSKT compact supporter Attorney General Tim Fox.

The simple truth is that the CSKT Compact and the litigation threats that continue to accompany it were never about providing Montanans with certainty and finality.  It was about the federalization of our water and the establishment of a pathway toward endless U.S and CSKT attorney litigation against Montanans for generations to come.

Oh, and don’t forget, the state gave itself immunity from the damages it will cause to Montanans, and for all practical purposes, will not defend its own citizens as against the Tribes or the United States.  That is spelled out in the so-called “mutual defense clause” of the compact.  If you as a citizen are harmed by this compact, and litigate, you will be fighting the state of Montana, the Tribes, and the United States.

With a democrat Governor and democrat-lite Attorney General like we have in Montana, who needs enemies?

 

 

 

Docket 61: The CSKT Off Reservation Aboriginal Title Claim

© 2018 Concerned Citizens of Western Montana

Clark Fork Basin Task Force Meeting 08/02/2011  discussion about the CSKT water compact “negotiations.”

QUESTION – Will the compact specify or cap the flow and volume of the CSKT reserved water right?

ANSWER BY JAY WEINER (COMPACT COMMISSION ATTORNEY) Maybe. This is a complicated issue. If the reserved right is quantified numerically (either by volume or flow rate), it will likely be larger than the available supply. The Compact Commission will seek sideboards on the use of the reserved right to protect existing water users.

It’s impossible to understand the off reservation components of the CSKT compact, SB 262, Jon Tester’s S.3013, or the tribe’s 10,000 claims when the actual historic context is considered in the mix.  Take for example the payment made by the United States to the CSKT in 1966 as a final settlement for their off reservation ceded lands:

DOCKET 61:  THE INDIAN CLAIMS COMMISSION
OFF RESERVATION CEDED LANDS ABORIGINAL TITLE CLAIM

1950 CSKT Attorneys file a petition with the Indian Claims Commission related to off reservation lands ceded to the United States in the 1855 Hellgate Treaty. The petition, describing the lands and their appurtenant waters, claimed that 14.7 million off reservation acres were ceded and only 2 ½ cents per acre was paid for them, suggesting their value was “at least” $18.4 million or  $1.25 per acre, the minimum price of public lands at the time the lands were taken.  This petition became docket number 61, and was referred to as the CSKT Indian Title or Aboriginal Title Claim.
1958 The original petition was amended to reduce the amount of acreage ceded by the CSKT to a more accurate figure of 12 million acres.
1959 The Indian Claims Commission found that the effective date of the 1855 treaty was March 8, 1859, the date of its Senate ratification.  The case then moved to a determination of the acreage involved and the value of the lands as of March 8, 1859, in order to determine if the U.S. payment for said lands was in fact, unconscionable.
1965 Between 1959 and 1965, the court went through an intensive land classification and valuation process that included appraisers from both sides.  After consideration of the facts presented, the Commission determined that the the difference between the $593,000 consideration paid to the tribes by the United States, and its 1859 fair-market value of $5.3 million, was unconscionable and petitioner was entitled to recover $4.7 million, less whatever offsets the U.S. was entitled to under the Indian Claims Commission Act.

On November 30, 1965 the United States filed an amended answer claiming offsets of $4.3 million.  The tribes appealed, and the parties ultimately agreed that the offsets would be settled at $275,000 conditioned by the agreement of the CSKT Tribal Government, Bureau of Indian Affairs and Indian Claims Commission, as well as plaintiff dismissal of all other appeals entered for Docket 61.

1966 The proposed settlement was taken to the tribal membership, the majority of respondents in support of the settlement.  On July 1, 1966 the CSKT Tribal Council unanimously voted to accept the proposed settlement by passing Tribal Resolution 1977, APPROVING AND ACCEPTING THE OFFER TO COMPROMISE AND SETTLE THE ABORIGINAL TITLE CLAIM OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES, DOCKET NO. 61 INDIAN CLAIMS COMMISSION.

The parties entered into a stipulation agreement for final judgment that included the following condition:

“The judgment shall finally dispose of all claims or demands which petitioner has asserted or could have asserted in this case against defendant, and petitioner shall be barred from asserting all such claims or demands in any future action.”

We would like to take a moment to let the Indian Claims Commission final judgment stipulation agreement language sink in:

“The judgment shall finally dispose of all claims or demands which petitioner has asserted or could have asserted in this case against defendant, and petitioner shall be barred from asserting all such claims or demands in any future action.”

So how is it then, that in 2011 the state could be discussing the scope of the tribe’s water rights as “more water than exists?”

How is it, that in 2015, the state of Montana questionably ratified the CSKT water compact, ceding to the tribes time immemorial claims to vast amounts of off reservation water, including all of Flathead Lake, throughout western Montana?

And how could it be possible, that in June of 2015, empowered and emboldened by their success in Montana’s political swamp, the United States and CSKT promptly upped the ante by filing 10,000 claims covering 2/3 of the state of Montana, including time immemorial claims for all of the deep aquifer water that lies beneath the Flathead Reservation?

With the final language of the tribe’s Indian Claims final settlement agreement,  in what universe are they able to go from being barred from asserting future off reservation claims to claiming water not only in their ceded off reservation lands, but also to lands covering most of the state?

PONDERING THE DEPTHS OF THE MONTANA SWAMP

We can’t help but wonder what the Montana Reserved Water Rights Compact Commission was doing over its decades of so called “negotiations” with the CSKT.

Apparently instead of completing actual due diligence, the state chose to follow a pathway that ignored the history of the tribe’s claims and settlements  while deliberately attempting to erase it from the public record with a 1,500 page intentionally complicated document.  And to their credit,  they managed to kick it over the legislative finish line without ever divulging what really was ceded in it to the United States and CSKT tribal governments.

Montana instead chose a detour of sorts, using out of context decisions by activist judges, and state employed attorneys to convey that the overly aggressive claims of the CSKT were “legally colorable.”

And of course let’s not forget that state Senator Chas Vincent assured the people he had read (almost) “all the Jurisprudence” prior to putting his support behind the compact in the Montana legislature. If he had read the jurisprudence, then, how could he have missed these basic facts?  Perhaps he only read what the agenda driven Compact Commission had pointed him to.


This begs the question as to what standard should be applied to our Governor, Attorney General and Compact Commission staffers, and some state legislators who also happen to be attorneys?  Does their unbridled advocacy for such an outrageous agreement come out of their own incompetence, or is it agenda driven with a willful disregard of the rule of law, the constitution, and the history of western Montana?

Does one call that ignorance?  Negligence?  More importantly could it be considered a fraud perpetrated by all of them upon the citizens of the state of Montana?

For more information about Original and Aboriginal Indian Title, check out this 1947 article by Felix Cohen, Associate Solicitor of the Department of the Interior:  Original Indian Title

CSKT related Indian Claims Commission Docket 61 Documents

Docket 61 MAR 29, 1950 PETITION
Docket 61 AUG 03, 1959 FINDINGS OF FACT
Docket 61 AUG 03, 1959 OPINION OF THE COMMISSION
Docket 61 AUG 03, 1959 INTERLOCHUTORY ORDER
Docket 61 SEP 29, 1965 ADDITIONAL FINDINGS OF FACT
Docket 61 SEP 29, 1965 OPINION OF THE COMMISSION
Docket 61 SEP 29, 1965 SECOND INTERLOCHUTORY ORDER
Docket 61 AUG 01, 1966 FINDINGS OF FACT IN COMPROMISE SETTLEMENT
Docket 61 MAR 10, 1967 FINDING OF FACTS ON ATTORNEY FEE
Docket 61 MAR 10, 1967 ORDER ALLOWING ATTORNEYS FEES

The FAKE “CSKT Compact Deadline” of 2019

©2018 Montana Land and Water Alliance

April 2019 is merely an “escape clause”–any party can withdraw from the Compact with a 30-day written notice.  That’s it.

Always searching for ways to scam Montanans, proponents of the CSKT Compact are now running around with “the sky is falling” moment–claiming that the CSKT Compact will be null and void in 2019.  Their purpose is to get unsuspecting, willing, or ignorant Montanans to sign another petition or letter supporting the CSKT Compact.

But what does the Compact actually say?  Article VII.A.4 of the Compact states the following:

The state [as well as the U.S. and Tribes] may exercise its right to withdraw under [this article] VII. A.4 by sending to the Chair of the Tribal Council and to the Secretary a letter delivered by certified mail from the Governor of the State expressing the state’s intent to withdraw and specifying a reason for withdrawal and a withdrawal date not sooner than one hundred and twenty days from the date of the letter.  On the date designated in the letter for State withdrawal, the Compact shall become null and void without further action by any Party.

The conditions for withdrawal include everything from lack of Congressional ratification to failure of Congress to fund the deal.  With our country  $21 TRILLION in debt, where is the CSKT “free money” coming from?

Why would FARM and compact proponents perpetuate another lie?  Again, if this compact is so good, why is fear and loathing being used to promote it?

As long as we have Steve Bullock and Attorney General (or governor) Fox in office, Montana will never withdraw from this compact.

But maybe the United States will withdraw because of its demonstrably unlawful off-reservation water claims?  Ultimately both the Tribes and the United States will lose these claims both in Congress and the Courts.  And that is where Montana’s embarrassment will come…

Those would be some interesting letters to Congress, the Attorney General, and the President–asking the United States to withdraw from the CSKT Compact!

 

 

FARM Mailer ………

Note:  Our thanks to Matt Graveley, Vice President of the Rocky Mountain Stockgrowers for permission to post this article written by him and published in the Western Ag Reporter earlier this week.  It is his response to the recent FARM litigation notice mailed throughout the state.  With a brand new Mercury Contract approved by the tribe, expect an onslaught of threats over the next 12 to 18 months.

Farm Mailer……

Montana water right holders have recently received official looking mailers that appear to be a litigation notice from the Montana Water Court.  In fact, these mailers are only more lies and propaganda from the astro-turf group Farmers and Ranchers for Montana (FARM).  This attempt to deceive Montanans is, unfortunately, par for the course for FARM.

FARM claims to be a grassroots organization of Montanan citizens and rancher/irrigators, but is in reality a creation the Confederated Salish and Kootenai Tribes (CSKT) and their Washington DC based PR firm, Mercury, Inc.  FARM burst on the scene at the 2015 Montana Legislature complete with a board of directors, staff, lobbyist, and big budget with one purpose:  pushing the floundering CSKT Water Compact over the goal line.  The board is full of names of ex-legislators and once influential persons, all selected to give FARM the appearance of knowledge, credibility, and experience.  Instead, FARM just spews CSKT talking points and fear monger.

The biggest whopper that FARM continues to tell is how the Compact was negotiated “with input from agriculture groups and water users”.  Who were these ag groups who gave their input?  It wasn’t the Montana Stockgrowers, which up until 2013 was ignorant of the details or even the existence of the CSKT Compact.  In 2015, the membership voted to support a compact that would protect existing water and property rights and follow current Montana water law.  That position statement is not reflected by this deeply flawed compact.  All the same can be said about Montana Farm Bureau.  So, if an agriculture group had input on the negotiations, I don’t know who they were.

FARM loves to stoke up fear.  For instance, the most recent mailer states that if the Compact isn’t ratified by Congress, water users will “lose the ability to irrigate for decades…”  Really?  I know that most basins have only recently published a final adjudication, with some still not finished.  Has Montana turned into a parched moonscape while the adjudication takes place?  Hardly so.  There must be some way to continue to use your water right in the absence of a final decree…

Proponents of the CSKT Compact resolutely tout the absolute superiority and infallibility of the tribal claims.  This is no guarantee either.  Idaho faced a similar circumstance and refused the demands of the tribes.  The tribes dutifully responded by filing over 2500 claims, and indeed they won—sort of.  Approximately six claims filed by the tribe were recognized by the Idaho Water Court, and those claims were curtailed so as to have absolute minimum impact on irrigation.

Supporters of the CSKT Compact insist on its adoption at all costs.  But what are those costs?  The State of Montana has agreed to pay the Tribe more than $55 million, plus all the water on the Flathead Reservation, including ownership and control of the Flathead Irrigation Project and an enormous amount of water off the reservation as well.  The bill that Senator Tester introduced included over $2 BILLION for a federal contribution, and God only knows what else.

FARM is right about one thing.  This is indeed the time to contact your Congressional delegation.  Call them up, e-mail, or send a letter and tell them to dump this Compact where it belongs, in the dumpster.  (It would literally require a dumpster; the Compact is over 1500 pages long.)

Oh, and use all that FARM propaganda for something useful and start a fire, the nights are getting chilly.

Matt Graveley
Vice President, Rocky Mountain Stockgrowers Association

FARM’s PURE PROPAGANDA

©2018 Montana Land and Water Alliance

As people around the state of Montana start receiving their Second Notice from FARM, threatening the water rights of irrigators if Congress does not approve the CSKT Compact, the question begs itself:  is FARM lying?  If the compact is so good for Montana, why do they have to threaten Montana citizens?  This threat is not only among the partisan groups like FARM, it also permeates through the halls of Montana’s executive branch.

There is an old adage that says, “if you repeat a lie long enough eventually people will believe it”…like the statement that “Article 3 of the Treaty of Hellgate grants the CSKT extensive water rights off the reservation in their aboriginal territory”. This is flat out untrue as Article 3 grants ACCESS to off reservation, ceded aboriginal lands IN COMMON WITH THE CITIZENS OF THE TERRITORY.

Or FARM’s statement that “like all state based claims, all tribal claims are presumed valid, predate most if not all water use claims, and can be enforced against all other water users until adjudication is completed.” What?

Our questions, and those that EVERY MONTANAN should be paying attention to are:

In what world does the State of Montana get to give a state water right with a time immemorial priority date, predating statehood, to a Tribe? Has it happened before?

And, since Montana’s general stream adjudication has been underway since 1979, has anyone been deprived of the use of their water during that adjudication process?

Think about this.   And note, Article I of Montana’s Constitution, and Article I (10), the Fifth and Fourteenth Amendment of the United States Constitution prohibit the state of Montana from advancing either one of these claims or actions.

REVIEW: THE CSKT COMPACT IN ONE CHART

The FARM organization, as all compact proponents, tout the the “negotiated” aspect of the CSKT Compact as if that somehow magically allowed the state, the CSKT, and the United States to violate the basic legal  framework of a federal reserved water rights settlement:

Federal Reserved Water Rights Settlement vs. CSKT Compact

Key Features Federal Reserved Water Rights Settlement or litigation CSKT Compact
Reservation of land United States CSKT
Purpose of the reservation Articles 3, 5, 6  of Hellgate Treaty: Agriculture, Fisheries, Industrial Permanent homeland
 Volume of water Discrete amount of water required to fulfill purposes Unlimited
Geographic scope of federal reserved water right Reservation boundaries unlimited
Administration State & tribal control over respective resources U.S./Tribal control over all water rights

Being in a federal reserved water rights negotiation does not allow the state to violate federal or state law.  Contrary to the Compact Commission’s determination, this flexibility is not allowed and should never have been taken by a non-elected political body subject to the Governor’s whim.

On its face then, when this compact gets to Congress, it just might be laughed out  of the halls. It simply cannot be defended.

CLOSING THE DEBATE ON WHETHER ANY OFF RESERVATION WATER RIGHTS EXIST FOR THE CSKT

The compact proponents are all promoting a compact that puts the water rights of hundreds of thousands of Montana residents across the state at risk.  Thus FARM in fact is advocating against the farming and ranching community despite claiming the opposite.

Let’s provide the proper framework for ending this discussion.

The top diagram on this Legal Context & Reference Map shows the geographic scope of various treaties in Montana.   The bottom map shows the CSKT Compact claims plus the “10,000 Claims” filed in eastern Montana after the legislature passed the compact in 2015.

The top map shows the geographic scope of the Treaty of Hellgate, and other treaties that historically limit the range of the Flathead Tribes’ historic occupation.  The only reason the treaties are relevant at all in this discussion are to determine the scope of the federal reserved right.  Note the following:

  1. The  lands covered by the Treaty of Hellgate are outlined in green and are in western Montana.  They include the ceded lands and the Flathead Indian Reservation.  They are bound on the east by the Rocky Mountains and the Judith River Treaty area (blue), and on the southeast by the common hunting area used by all tribes.  The western boundary of the lands covered by the Treaty border Idaho, except for a small section that borders ceded lands of the Pend de’Oreille Tribe of Idaho.
  2. The Article 3 access right to aboriginal territory is limited to only those lands ceded by the CSKT to the United States, aka, western Montana.
  3. In Article 5 of the Judith River Treaty, the Flathead agreed to not permanently occupy any land east of the continental divide and to limit its use to temporary hunting and fishing.
  4. The red line is an arbitrary line drawn by the state and tribes that extends into the Judith River Treaty area and outside the CSKT ceded lands to signify a “subsistence area”, which are the geographic scope of the  “10,000 off reservation claims” filed by the Tribes after the compact passed, shown in the bottom map.

Conclusions:

  • First, there are no federal reserved or “state law” water rights off the Flathead Indian Reservation.
  • Second, the Article 3 Treaty right is an access right, not a water right, limited to the lands ceded to the United States in western Montana.
  • Third, the CSKT have no “access right” to lands in the claimed “subsistence area” because the Treaty of Hellgate limits the access right to lands they ceded to the United States in western Montana.

That similar claims to off reservation water rights by a tribe have been soundly defeated by the State of Idaho makes you wonder what Montana was thinking!

Of course, Montana had tribal advocates running the Attorney General’s office and Compact Commission, thinking that they could break the law and no one would notice. Or by the time they did, it would have already passed the legislature.

That the state of Montana supports the outrageous claims put forth by FARM–by not refuting them and sometimes repeating them–is an embarrassing stand for a western state whose neighbors have decided to follow the law.

The CSKT Compact was NOT the Only Solution

Another fallacy readily accepted by an unsuspecting public was the line that the CSKT Compact, with all its illegality and excesses, was the only solution to this issue. Was it?

Just think about the difference between the CSKT Compact and other settlements in Montana.  Why did this one end up this way?

What if the State, Tribes and United States actually had focused on the resolution of the federal reserved water rights of the CSKT according to practice and the chart above?  Would we all be here more than six years later, accurately describing and sounding the alarm?

After 20 years, you mean there was no alternative?  And a 1,500 page document that no one could understand was put forth as “the best you’re going to get”?

No, this was the best scenario for the Tribal, state, and federal governments, not for the people of Montana.

Prepare for Another Onslaught of Threats

©2018 Concerned Citizens of Western Montana

Since the questionable ratification of the CSKT compact in the 2015 Montana legislature, we’ve posted quite a few articles about the United States and CSKT filing of 10,000 claims covering 2/3 of the state of Montana.

Montana’s “Negotiations” Failed its Citizens

When negotiators sit at the table, they typically know exactly what it is they are negotiating over.  But no such luck in Montana.  Proud of its “compacting process”, the compact commission accepted the tribe’s 2001 and 2010 proposals as adequate and spent decades “negotiating” without ever realizing just how big the overreach of the United States and the CSKT was.  For decades, the main thrust of the tribes’ proposals insisted on:

  1. All of the water flowing through, over and under the reservation
  2. Off reservation claims (with no specified geographical limitation)
  3. Tribal management and administration of all of that water

Because the compact commission failed to ask for the claims before sitting down at the table, little did the state or the public realize how geographically expansive and overreaching those claims would ultimately be.

This was a huge miscalculation on the part of the compact commission, because at the end of the day:

  • The failed process allowed the threat of 10,000 unfounded claims to be wielded as a means of coercing Montanans into accepting a very bad compact, and  Montana legislators into “ratifying” the Compact in 2015.
  • These claims continue to be a looming threat, ready to be used to wreak havoc on the state adjudication process because they represent the threat of re-opening basins east of the divide whose water rights were close to being resolved
  • This threat to the adjudication process is also subtly being used to” influence the water court” into issuing stays on any examination of the United States / CSKT 10,000 claims as well as those in the proposed CSKT compact.

We now know that part of the strategy was to ensure that there will never be an examination of the 10,000 claims.  The same holds true for the claims in the CSKT Water Compact.  The plan was that once ratification by all three parties was complete, the compact’s unscrutinized claims would then be incorporated into the decrees for the basin, and people would never know what hit them.

Adding insult to injury, upon ratification of the CSKT Compact by all three parties, these 10,000 unscrutinized and legally indefensible claims will be dismissed without prejudice allowing them to hang over the state as a looming threat of future litigation.

As we recently pointed out, this is far different than the process Idaho is going through related to claims of the Coeur d’Alene tribes:  A Tale of Two States:  Montana and Idaho

Phase Two of the Strategy:  Mercury and FARM

In 2014 we documented tribal money going toward advancing the CSKT compact via republican legislators:

Bruce Tutvedt:  CSKT Lobbyist or Legislator?

In 2016, we were able to use public records to document the genesis of Farmers and Ranchers for Montana (FARM) via CSKT dark money paid to Mercury LLC:

FARM, Grassroots, Astroturf or Something Else?

The Anatomy of the CSKT Water Compact was later developed to connect all of this information together by showing the faces of the CSKT water compact, lovingly referred to by FARM as “Montana’s Compact”:

Anatomy of the CSKT Water Compact

In early August of 2018, the CSKT Tribal Council approved another contract with Mercury LLC from March 1, 2017 through  September 30, 2019 (is this an error in the minutes or was the contract approved after the fact?)

Here is contract information taken from their August 7, 2018 tribal council minutes.

The first order of business after council approval on the contract was the letter sent by FARM throughout the state that hit mailboxes sometime in the 2nd week of August.  The letter, designed to look like a legal notice from the Montana Water Court Adjudication included the boldest threat to Montanans that we’ve seen thus far:

Public records indicate you may have a financial, property or other interest that could be negatively impacted without final approval of the Compact. WITHOUT THE COMPACT YOU MAY LOSE THE ABILITY TO IRRIGATE FOR DECADES WHILE THE WATER COURT ADJUDICATES CSKT’S CLAIMS.

For more information about this letter, including a copy of its entire content, click on this link:  FARM Notice Signals Tribal Desperation

Make no mistake, the timing of this recent CSKT contract with Mercury is intended to maximize the tribe’s influence toward helping Jon Tester’s re-election aspirations, and to make the CSKT compact an issue most likely for the lame duck session immediately after the election, and into next year.

Should Tester retain his senate seat, expect them to push harder than ever before for ratification of Tester’s S.3013 2.0 and the horrible CSKT water compact that was inserted into it.

Brace yourselves, the recent FARM letter sets the stage for what lies ahead of us for the next year.

It doesn’t take a rocket scientist to figure out that Montanans should expect even more aggressive and ridiculous threats paid for courtesy of the CSKT through their “public relations” strategy planned and executed perfectly by Mercury Public Affairs LLC.   The only thing we don’t know for sure is whether FARM will continue to be their preferred messenger, or if a “new” grassroots organization will be invented.

The 10,000 claims have sure been handy, brilliant if you will.  They can and will be forever used to beat Montanans, particularly the courts into submission.

The once warm and fuzzy “Montana’s Water Compact” has now morphed into the threat of decades of deprivation of irrigation water.

Remind us again about why this compact is so good for Montana?  If it’s so good, why must they resort to coercion and threats to get it ratified?

A Tale of Two States: Montana and Idaho

©2018 Concerned Citizens of Western Montana

Montana’s Approach to Indian Water “Settlements”

After decades of calling the CSKT demands for 1) all the water flowing on over, and under the reservation 2) off reservation “indian reserved” water rights and 3) unitary administration of that water “non-starters”, the people of Montana were comfortable that their water rights were being protected by the state through the Montana Reserved Water Rights Compact Commission.

Over the years, Montanans began to pay little attention to state water rights “negotiations” with the Confederated Salish and Kootenai Tribes.  They had no idea that In the early to mid-2000’s, the compact commission made the decision to cave in to the CSKT’s decade long unreasonable demands by agreeing to cede:

  1. All of the water flowing through, over and under the (diminished) Flathead Indian Reservation,
  2. Off Reservation water rights to vast volumes of off reservation water including all of Flathead Lake,
  3. Bare legal title to 100% of irrigator’s water in a federal irrigation project and
  4. Ceding its constitutionally mandated jurisdiction over all that water

Once they were “in”, the state then hired an attorney to make their capitulation more palatable to the public.  This was accomplished by creating the necessary talking-points, developing a “legal legs” rationalization for what clearly would be an unconstitutional taking and putting lipstick on the tribe’s unreasonable claims by declaring them “colorable” under the law.

At some point in the process they also made a conscious decision to provide no “quantification” of the volume of water to legislators or the public or any studies of its impacts on the economy of western Montana.

As of the writing of this post, the state still has not provided an official volume of water.  To note, at a Clark Fork Basin Management Taskforce meeting in 2011, the following discussion took place:

Comment – I have heard a rumor that the compact will not quantify the CSKT reserved water right. Without quantification, I am unsure how adverse affect will be determined…. Will the compact specify or cap the flow and volume of the CSKT reserved water right?

Answer by Jay Weiner – Maybe. This is a complicated issue. If the reserved right is quantified numerically (either by volume or flow rate), it will likely be larger than the available supply.

Here is a copy of the state’s non-quantification “quantification” given to Montana legislators ahead of their vote on the compact in 2015:  Chas Vincent Legislator Package: Quantification

Adding insult to injury, state attorneys also worked in concert with the CSKT to develop what they thought to be a bullet proof document, placing negatively impacted property owners in a legal straight jacket while at the same time giving themselves immunity from any damages.

There is little doubt Governor Steve Bullock and Attorney General Tim Fox believed this settlement to be the finest legal document they’ve ever endorsed or been a party to in their “distinguished” legal and political careers.

Despite their best efforts, the CSKT water compact was still too controversial to ratify easily.  However with some arm twisting, CSKT dark money, failure to disclose pertinent information, making a mockery of the People’s government, and widespread threats of decades long litigation, the parties to the compact were able to achieve an unconstitutional simple majority ratification vote in the Montana legislature in 2015.

In June of 2015, after the compact’s questionable ratification in the legislature, the United States and the CSKT filed 10,000 claims covering 2/3 of the state:

These claims remain a dark “threat of litigation” cloud over the state of Montana.  Since filing them, tribal attorneys have successfully used them to thwart the Montana adjudication process and to prevent any examination of the tribe’s illegal and unreasonable claims.  They currently have a stay in the water court until January 2020.

Meanwhile in Idaho……

Notwithstanding the actions of Montana with respect to the Confederated Salish and Kootenai Tribes water compact, the state of Idaho has been working hard to protect its citizens from off reservation claims of the United States and the Coeur D’Alene tribe.

In 2008 the Idaho Court entered an order to commence the  Coeur d’Alene-Spokane River Basin Adjudication.

In March of 2014, the United States filed 353 federal reserved water rights claims with the state of Idaho on behalf of the Coeur d’Alene tribes

Objections and responses to the claims were filed by various parties and were consolidated into one sub case in early 2015.  The goal was to separate the issues of entitlement (legality of the claims) and quantification, addressing the issue of entitlement (compliance with the law) before any quantification would be addressed in the court.

Motions for summary judgment were filed by Idaho, the United States, the Coeur d’Alene Tribe, and others.

In May of 2017, Idaho’s Fifth Judicial District issued an order that included the following crucial legal decisions and ground rules for any claims that were to proceed forward in the adjudication process:

  • A determination of the primary and secondary purposes of the reservation
  • A declaration that the United States is not entitled to federal reserved water rights outside the boundaries of the reservation
  • Setting ground rules for the priority dates of any water rights
  • Denying the United States’ claim for lake level maintenance of Lake Coeur d’Alene as a matter of law

A copy of that decision can be found at this link: 05/2017 Idaho Fifty District Court Order Pertaining to Requests for Summary Judgment

We’d like to note that the parties to this decision have appealed it to the Idaho Supreme Court, so this is far from being resolved, but it is a necessary and important step in the process of protecting Idaho citizens from an Indian Water Rights nightmare in their state.  Their success speaks volumes related to what a federal reserved water right is and is not.

NOTE:  The document linked above is IMPORTANT to our situation and we hope you take the time to read it if for no other reason than to understand the path Montana could have and should have taken with respect to the United States and CSKT claims.  It is a stark reminder of Montana’s negligence and its complete failure to step up on behalf of protecting its resources, its constitutionally mandated authority, and the rights of all of its citizens.  Instead of choosing a pathway that would have stopped or diminished any federal overreach, it empowered the United States and CSKT by endorsing the federalization of the clean abundant water in western Montana.

CSRBA Website

Why Did Montana Choose a Path that Ignored its Responsibilities and the Rights of its Citizens?

We will leave that answer up to you, but want to end with this:

In August of 2012 Chris Tweeten explained in a public meeting that he saw the Montana Reserved Water Rights Compact Commission as a trail blazer for future Indian Water Rights Settlements in the country.  He noted that once the CSKT water compact was ratified, he wanted to plan a “national scope” party to celebrate the conclusion of their journey.  He even proposed that Hillary Clinton be invited to the celebration.  At the time we were new to the water rights “negotiations” and had no idea what he meant by the term trail blazer.

However after more than six years and thousands of hours of research later, it is our firm belief that when the history books are written, the MRWRCC will be remembered for its deception, as well as the divisive tactics they used to coerce people into  a reluctant and distasteful acceptance of the CSKT water compact.

Plain and simple, it was an attempted fraud upon the people of Montana.  It could very well turn out to be the biggest scandal in Montana’s history.

Montana or Idaho?  Idaho or Montana?  Which state would you rather have looking out for you?

 

 

 

CSKT Compact Proponents Still Stunningly Uninformed

@2018 Montana Land and Water Alliance

Conveniently following the FARM threat letter discussed in our last post, editorials appear across the state from state representatives and senators extolling the same misinformation contained in the FARM piece. The coordinated strategic talking points say:

  • If Congress does not approve the CSKT Compact, then Montanans’ water rights would be tied up for decades as the CSKT pursue their off-reservation federal reserved rights
  • That the CSKT have “prima facie” off reservation water rights across 2/3 of Montana, that are valid until proven otherwise
  • That everyone will have to hire their own lawyer to protect their water rights, but their defense would be unsuccessful against the Tribes’ time immemorial priority date.

Each of these statements are untrue, but those are the talking points the compact proponents are running with. The latest installment of the rolling talking points is Representative Zach Brown’s recent Op-Ed in the Billings Gazette, “Congress Should Pass the CSKT Compact“.

The latest talking point, echoed by Zach Brown, is that there is a 2019 deadline, after which the compact is null and void.  This is untrue. The Compact states that if Congress has not approved or funded the compact, or the state has not funded it, any party (Tribes, US, State) may withdraw from the compact.  The likelihood of Montana withdrawing from the CSKT Compact as long as AG Fox and Governor Bullock are in office is zero. The battle is now at the federal level in any case.

Here is our lengthy response, too long even for an op-ed:

CSKT Compact Proponents Still Stunningly Uninformed

Catherine Vandemoer, Ph.D., Chair Montana Land and Water Alliance

In a recent Op-Ed for the Billings Gazette, Representative Zach Brown tries his best to inform Montana citizens why Congress should pass the CSKT Compact.  But in doing so, he severely misstates the definition of a “federal reserved water right” and mixes up state and federal law concepts. He concludes, as do other compact proponents, with the usual threat that litigation against Montana citizens is inevitable and unwinnable if they don’t support or Congress doesn’t pass the CSKT Compact. Does the representative know what he is advocating for?

Representative Brown asserts that if the Compact is not passed by Congress, extensive litigation and uncertainty will ensue because “the CSKT will move forward with legal claims to define their federally reserved water rights in the MT Water Court….numbering in the thousands and covering approximately two-thirds of Montana…”  Does representative Brown know that “federal(ly) reserved water rights” are defined by the Winters Doctrine and subsequent case law are restricted to the federal Indian reservation land, not “approximately two-thirds of Montana”?  The only “federal reserved rights” of the CSKT are on the Flathead Reservation, not off-reservation and across Montana. Mr. Brown should study all the other Tribal compacts in Montana, the Winters Doctrine, and the Treaty of Hellgate before asserting that the CSKT off-reservation claims are “federal reserved water rights”.

Next, Representative Brown argues that the CSKT off reservation claims “are considered valid unless proven otherwise”.  Here he incorrectly and improperly mixes state and federal law.  The concept of “valid until proven otherwise” is a state law concept known as the “prima facie” argument.  In contrast, a federal reserved water right is by federal law restricted to the reservation and must be quantified and proven in a court of law or determined through negotiation before it is considered “valid”. Only state law-based water rights carry the privilege of “prima facie”—valid until proven otherwise.  There is literally no basis in law or the Treaty of Hellgate for the CSKT off reservation water claims and no application of the state law-based “prima facie” status to them.  Representative Brown should be challenged to prove his assertions.

To add insult to injury, Representative Brown then states that failure to act on the CSKT Compact will “force existing water users to defend their rights in court”, and that the “1855 and time immemorial priority dates” will  make it “nearly impossible for an existing water right holder to successfully defend their right”.  This is the usual threat regularly employed by compact proponents to scare their constituents with misinformation as to the true legal scope of the Tribes’ water claims and their ‘prima facie’ status in order to coerce them into supporting the Compact.

What compact proponents like Representative Brown do not want you to know about the CSKT Compact is that if passed, it won’t stop litigation or provide certainty for Montana citizens. None of the Tribes’ or United States’ claims are dismissed with prejudice—meaning finally dismissed. The CSKT Compact if passed by Congress is a lawyer’s dream—endless litigation!

The CSKT tribal government, after having promised not to file its 10,000 off reservation claims if the legislature passed the CSKT Compact, filed them anyway, and there they sit, hanging as a permanent cloud over the entire state of Montana. Who allowed the CSKT tribal government to file those claims in the Water Court despite the legislature’s passage of the Compact, and who allowed them to dishonor their pledge to the people of Montana? Is our state government representing all Montanans, or just a few? Montana failed all its citizens.

Representative Zach Brown sits on the Water Policy Interim Committee (WPIC) and reported that the WPIC recently submitted a letter to Secretary Zinke urging passage of the CSKT Compact.  Their letter was based in part on the arguments above, which when stripped to their core, just consist of advocacy  for the CSKT at the real expense of Montana citizens. Brown should focus on answering the question that the state has refused to answer since 2012: how much water was awarded to the CSKT under the Compact?

When politicians use the weight of their legislative office and membership on key committees to misinform and scare their constituents, and to advocate only for a certain group of citizens over others, they violate the civil rights of all Montanans to fair representation by their elected officials and due process under law.

 

FARM Notice Signals Tribal Desperation

© 2018 Concerned Citizens of Western Montana

Last week, many irrigators around the state were treated to an official-looking document appearing to have something to do with the water court and litigation.  Its contents included an aggressive threat specific to irrigators: Support and acquiesce to the CSKT water compact or face the risk of losing your irrigation water for decades while you spend large amounts of money defending your inferior claims in the water court against CSKT objections to encroachments on their pervasive prima facie time immemorial claims.

Gee, wasn’t it the nice, friendly and wonderful “Montana’s Water Compact” just a couple of short years ago?

Their mailer reads as follows:

Montana Water Rights Litigation Notice
Impacted Owner
Basin Number

Impacted property owners and water right holders in 54 of Montana ‘ s 90 water basins are likely to be the subject of litigation before the Montana Water Court without implementation of the Confederated Salish & Kootenai Tribe (“CSKT”) Water Compact (“The Compact “).

The Compact is a negotiated agreement made between the State of Montana, the federal government, and the CSKT, with input from agricultural groups and water users to prevent existing water rights from being challenged in Court. The Compact was passed by the Montana State Legislature and signed by the Governor in 2015, and is pending final approval in the United States Congress.

Consequently, under Montana law, the CSKT was required to file their tribal claims in the Montana Water Court. This legal action will require existing water right holders to prove their rights predate those of the CSKT, which have a priority date of 1855, or time immemorial. Without the Compact, all tribal claims are presumed valid, predate most if not all other water use claims, and can be enforced against all other water users until adjudication is completed.

Public records indicate you may have a financial, property or other interest that could be negatively impacted without final approval of the Compact. WITHOUT THE COMPACT YOU MAY LOSE THE ABILITY TO IRRIGATE FOR DECADES WHILE THE WATER COURT ADJUDICATES CSKT’S CLAIMS.

Farmers and Ranchers for Montana ( ” FARM” ) is a coalition representing agriculture, irrigators , business and other stakeholders across Montana dedicated to implementing the Compact in order to prevent the litigation of existing water rights. The Compact will preserve existing water rights, reduce uncertainty, protect property values, and minimize decades of costly litigation .

PLEASE RESPOND IMMEDIATELY by visiting www.MontanaWaterCompact.com to join our coalition, take action, and ensure final approval of the Compact.

A name redacted copy of this mailer can be found at this link.

NOTE:  Be sure to look closely at the postage stamp on page 2.  Is that a tribal insignia?  Is FARM using it to show solidarity with the CSKT, or is it possible they erred by using the tribe’s money or postage meter to fund the mailing? Regardless, the Tribes created FARM through Mercury Consulting.

Some History

Before we discuss the notice, let’s remind people that FARM is anything but a  “grassroots” organization.  Created with dark tribal money, via Denny’s Rehberg’s Mercury LLC, and with the help of Montana’s good old boys swamp, they were able to use CSKT funds to advance a huge advertising campaign throughout the state of Montana to help get the CSKT water compact approved in 2015.

See our article from 2016, that researched its genesis using public records.

FARM:  Grassroots, Astroturf or Something Else?

Even with all of that public relations glitz and glamor, the compact was so overreaching and controversial, a small group of republican legislators found it necessary to conspire with democrats to change house rules in order to garner a flawed and questionable “ratification” of the compact in the Montana legislature.

A few years down the road, and with some hindsight, it is clear that the goal was to get the compact ratified by all three governments before the public ever knew what hit them:

Goal Status
Get the CSKT compact ratified in the Montana Legislature without ever letting legislators know how much water was being ceded or its impacts on the economy of western Montana.  Give the parties immunity from damages resulting from the taking that they all presided over.  Have the Montana Supreme Court bless their failure to secure the constitutionally mandated 2/3 vote in the Montana House and Senate Accomplished
Implement portions of the Compact prior to federal ratification to ensure that its impacts will take effect even if it never is ratified by Congress Partially Complete
Hire lobbying / public relations firm to “sell the compact” Accomplished
File 10,000 claims, over 2/3 of the state of Montana, most with time immemorial priority dates Accomplished
Ensure there is no scrutiny of the tribe’s overreaching and ridiculous compact claims as well as the 10,000 claims filed over 2/3 of the state of Montana. The tribe’s currently have a stay until January of 2020 Accomplished
To give the Montana water court the appearance that the water compact has momentum in congress Accomplished
Pitching tipis if necessary in the halls of Congress in an all or nothing effort to lobby for their water compact Work in progress
Get a Montana Senator to introduce a bill written by tribal attorneys, with a $2.3 billion price tag and ownership of the largest irrigation project in the state of Montana Accomplished
Secure Federal ratification of the CSKT compact faster than any other compact ever Stalled

This FARM Notice adds one more item to what has now become a very offensive list:

To mislead, frighten and coerce Montanans into supporting the compact to “protect their own water rights” from an overly aggressive tribe.

Compact ratification or not, it is unlikely that the Montana Water Court will approve any additional stays on claims examination in Hydrologic Basins 76L and 76LJ. 

This latest stunt by FARM indicates an increasing sense of urgency and desperation of the tribal government to secure a quick ratification of their beastly water compact.

Where is Montana, and Why Aren’t they Crying Foul?

A reasonable person might ask if this FARM “Litigation Notice” is a blatant attempt to intimidate citizens, influence Congress, and to ensure a biased water compact outcome in the Montana Water Court? If successful, these efforts essentially guarantee that those of us living in western Montana can never have a fair hearing in the Montana Water Court, because our claims will be buried under the weight of the federalization of our water. If successful, water users in Eastern Montana will have a permanent cloud over their water rights and face decades of litigation even if the compact is passed.

So why isn’t Montana calling foul on this FARM memo?  Why is our illustrious and knowledgeable Attorney General missing in action?  Why do compact proponents only have threats to advance their cause?

And importantly, no one who supports the compact can tell you why they do. Just ask them.

To the Montana elites supporting the compact, the ends have always justified the means.  Once Montana made its decision to abandon its citizens and allow the federalization of its western water, it became necessary to develop respectable sounding “legal legs” and talking points for the public.  Part of that strategy includes a mutual defense clause written into the compact.  Keeping quiet in the face of bullying and coercion tactics toward your citizens could reasonably be interpreted as “mutual defense” while letting someone else do the dirty work.

The threat of 10,000 claims has always been part of the strategy.  Montana clearly has decided to sit back and let its citizens continue to be divided and threatened by attorneys for one small tribe located in western Montana.

It’s Now Up to the People to Stop this Nonsense

Because all three branches of Montana government, state agencies and its good old boys swamp continue to fail the people of Montana, the burden now falls on We the People to stop this madness.

We urge you to send a copy of the FARM memo along with your own comments to the Montana Water Court to express your displeasure with the tactics currently being used by FARM at the apparent urging of the CSKT.  In light of the generous extension of time given by the Water Court to the Tribes, and in light of the professed “benefits” the CSKT compact is supposed to bring to Montana, why are they behaving this way?

If there is currently a stay on the examination of claims in the water court, surely it would be offensive to the Court to note the level of coercion that is still taking place during this interim period?

It’s way past time to disarm the state’s ability to divide its citizens against one another through its actions and its consistent failure to represent its citizens and protect their property rights.

If the property rights of all Montanans are not protected, no one’s rights are protected.  This means property rights that exist on both sides of the divide.