The CSKT Compact in a Nutshell

©2019 Montana Land and Water Alliance

The 1,500 page CSKT Compact was designed to disguise the truly significant issues that were at stake that should have been researched and addressed by the Compact Commission, presented to the legislature, and described to the public.  Instead, the public got the 3-page set of bullet points that focused on minor little details and cute assurances that masked the true extent of the overreach, harm, and precedent-setting nature of the CSKT Compact.

The Federal Review of the CSKT Compact/S.3013

Now that the 2015 CSKT Compact is out of Montana, and added to by Senator Jon Tester as the 2016 S. 3013 at the federal level, according to the 2015  directive from the House Committee on Natural Resources, the Departments of the Interior and Justice and the Office of Management and Budget (OMB) must complete their review of any Indian water settlement, which includes the CSKT Compact/S. 3013, before it can come before committee. While in theory this review would have presumably caught the glaring problems with the CSKT Compact and resolved them, we learned that the Departments were just going to accept the CSKT Compact as is, with no critical review.

The Interior/DOJ review has been underway for a while and we understand was near completion.  Working with our legislative team on the People’s Compact,  which we believe resolves the problems with the CSKT Compact, we were able to secure an opportunity to send our concerns to and have a discussion with the Interior Department’s Secretary’s Indian Water Rights Office about their review. This was to ensure that the United States was aware of the concerns of Montana citizens that were not represented by the State of Montana in the so-called “negotiations”.

The Letter

The letter we sent to the Department of the Interior is our “CSKT Compact in a Nutshell”, and you will see boils down to issues you probably never heard of because the State did not tell you what the CSKT Compact was really about or the actual legal constraints that should have prevented the CSKT Compact from developing in this form.

You will note that this is not a “nutshell”.  But it is as close to succinctly describing the fundamental problems with the CSKT Compact as it can be, and it does not describe it all!  So while it might take you a few days over several glasses of your favorite beverage, we think you will see that the CSKT Compact is even worse than you already know!

Was the state of Montana nuts?

December 17, 2018

                    , Esq.

Director, Secretary’s Indian Water Rights Office

U.S. Department of the Interior

1849 C Street NW

Washington, D.C.  20240

                         VIA ELECTRONIC TRANSMISSION

Dear Director:

We understand that the Department of the Interior,  the Justice Department and Office of Management and Budget are currently undertaking a review of the United States’ liability with respect to the proposed Confederated Salish and Kootenai Tribes (CSKT)-Montana water compact, and Senator Tester’s S. 3013 (2016) which incorporates that compact into a larger bill.  In support of that review, we are writing to provide new information that you may not be aware of to assist the Departments’ analysis and to ensure that all the aspects of the United States’ potential liability are fully addressed.

The context for submitting this additional information arises from the specific historical and legal circumstances of the Flathead Indian Reservation and from the provisions of the CSKT Compact itself. We believe that these circumstances will necessitate the evaluation of the United States’ liability beyond its potential liability to the CSKT and consideration of the impacts of the precedent-setting provisions of the CSKT Compact on Montana and the western states. In the pages that follow, we describe just a few of the key issues in the CSKT Compact and why we believe that the U.S. liability to the non-Indian settlers and off-reservation residents could be even greater than the $2.3 billion dollar price tag associated with Senator Tester’s S. 3013.

Liability to Non-Indian Project Water Users in the Flathead Irrigation Project

Pursuant to Article VI of the Treaty of Hellgate, the Flathead Indian Reservation was opened for settlement in 1909.  In anticipation of settlement, in 1908 the United States constructed an irrigation and power project that is statutorily obligated to serve all residents of the reservation.[1]  To meet this objective, the United States reserved or appropriated under state law 2.6 million acre feet of water to serve the integrated water and power project.  The United States holds the project water right by contract with the irrigators in the project who own 90% of the lands now served by the project.  Further, the 1908 Act created a statutory obligation to turn the management and operation of the project over to the landowners served by the project upon the completion of repayment of the construction costs to the United States (35 Stat. at 450).  The costs were completely repaid in 2004.

Under the terms of the CSKT Compact, the contract between the United States and irrigators is nullified because the bare legal title to 100% of the water is turned over to the Tribes[2], 90% of which is intended to be changed from irrigation use to instream flow. Under the terms of the CSKT Compact, it is estimated that historic irrigation water deliveries could be reduced by 40%-70%.[3] Moreover, federal management of the federal irrigation project is turned over to a committee consisting of the state and Tribes with minimal representation of the United States or the irrigators who paid for the project.[4]  Under Senator Tester’s bill, the federal infrastructure of the Flathead Irrigation and Power Project (FIPP) is also given to the CSKT[5].  We believe this constitutes a Fifth Amendment taking without compensation, for which the United States would be liable.

The Winters Doctrine, the McCarran Amendment, and Off-Reservation Water Rights

We assert that the provisions in and water claims of the CSKT Compact are outside the legally permitted scope of the Winters Doctrine and the McCarran Amendment and therefore the CSKT Compact is not a federal reserved water rights settlement[6]. As a threshold issue, the State of Montana failed to quantify the federal reserved water rights of the tribes and instead allowed virtually unlimited claims to be filed for all surface water on the reservation[7] as well as significant claims for state-owned water resources outside the geographical boundaries of the opened Flathead Indian Reservation.

The responsibility for the adjudication of water rights within a state belongs to each state.  In order to provide for a comprehensive adjudication of all water rights within a state that also had federal reservations of land, the 1952 McCarran Amendment (43 U.S.C. 666) waived the sovereign immunity of the United States for the purpose of adjudicating federal water rights, which include the water rights of Indian Tribes.  The only federal water rights that are found within the states are those water rights associated with the federal reservation of land. The CSKT Compact was negotiated pursuant to procedures established by the Montana legislature under the auspices of the Montana General Stream Adjudication which is a McCarran Amendment proceeding.

In sharp contrast to the principles of the Winters Doctrine and federal reserved water rights, the 2015 CSKT Compact and Senator Tester’s S. 3013 begin with a tribal, not federal reservation of land:

WHEREAS, pursuant to the Hellgate Treaty of 1855 12 Stat. 975, the Confederated Salish and Kootenai Tribes reserved the Flathead Indian Reservation

Bluntly, if the CSKT reserved the reservation themselves[8], are there any federal reserved water rights? Indeed, the CSKT assert that their Tribal reservation of land gives rise to aboriginal water rights and [tribal] reserved water rights to fulfill the purposes of the Treaty:

WHEREAS, the Confederated Salish and Kootenai Tribes claim aboriginal water rights and, pursuant to said Treaty, reserved water rights to fulfill the purposes of the Treaty and the Reservation

Thus, the CSKT Compact does not meet the definition of a federal reserved water right proceeding based on the Winters Doctrine.

The Montana General Stream Adjudication is governed by the McCarran Amendment with respect to the adjudication of federal water rights, which arise only from a federal reservation of land.  Except for this CSKT Compact, every Indian and non-Indian compact negotiated in the State of Montana acknowledges the federal reservation of land.  In short, there are no “aboriginal tribal reserved water rights” recognized in or allowed by either the Winters Doctrine or the McCarran Amendment in a state’s general stream adjudication.

Notwithstanding the prescriptions of the Winters Doctrine and requirements of the McCarran Amendment, the 2015 CSKT Compact and Senator Tester’s S. 3013 used the erroneous tribal reservation of land to create and claim new ‘tribal reserved water rights’ geographically outside the Flathead Indian Reservation, extending their claims throughout western Montana[9].  This is in stark contrast not only to existing law, but also violates an Indian Claims Commission stipulation agreement signed by the CSKT in 1966 that forever barred the CSKT from seeking any further off-reservation claims that it could have filed against the United States in any forum.[10]

While we recognize it has been a long-term policy goal of the Tribes to assert the Tribal reservation of land instead of the federal reservation of land as a basis for a Tribal reserved water right[11],  such a mechanism is not afforded to the Tribes because the Winters Doctrine and McCarran Amendment recognize only those federal  water rights that arise from a federal reservation of land[12].

The potential liability to the United States of the asserted non-federal reserved water rights claims in the CSKT Compact appear to be two-fold. First, the United States could face the loss of most if not all these water claims for failure to adhere to and comply with the Winters Doctrine and McCarran Amendment thus wasting time and resources in the effort.  Secondly, it appears that if the United States somehow prevailed in these claims, it would be in direct violation of a stipulation agreement signed between it and the CSKT in 1966. We also believe this will result in a Fifth Amendment taking without compensation of the water rights of hundreds of thousands of Montanans both on and off the reservation.

A Closer Look at Article 3 of the Treaty of Hellgate and Off-Reservation Water Rights

The CSKT Compact asserts that Article 3 of the Treaty of Hellgate, a “Stevens Treaty”, reserved a water right off the Flathead Reservation to fulfill the purposes of the Treaty.  For the CSKT Compact purposes, the relevant language of Article 3 is:

…the exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land[13]

Commonly seen as a right of access to usual and accustomed places, the geographic scope of the Stevens Treaty access right extends only to the lands ceded by a Tribe to the United States or to reservations within the ceded areas created by the United States when the treaties were ratified (United States v. Winans, 198 U.S. 371 (1905)).[14] The Winans case was not a water rights case but was about a servitude in the land and had nothing to do with reserved water rights.

The CSKT Compact, however, combines the Winters and Winans cases together so that the Article 3 Treaty-imposed servitude generates a reserved water right for instream flow.  The Compact extends this Article 3 reserved water right claim outside the CSKT aboriginal lands ceded to the United States, and then further, extends the reserved water right east of the continental divide to include reserved water rights in the CSKT claimed “subsistence range”, which covers roughly half the state of Montana.[15]

While we recognize the complexity of the issues and policy questions presented by the interpretation of the “in common” phrase of the Stevens Treaties containing similar Article 3 language[16], we believe that the off-reservation claims presented in the CSKT Compact should not be resolved within a federal reserved water rights settlement that is a McCarran Amendment proceeding.

Article 3 in our view does not generate federal reserved water rights, or any other water right. However, in the People’s Compact we attempted to address the 270,600 acre feet of water awarded to the CSKT out of the irrigation project in 1985 for fisheries purposes as part of the on-reservation federal reserved water right. We are unsure if this is the proper way to address this as bifurcating the Article 3 into on-reservation or off-reservation access rights, with on-reservation access generating a federal reserved water right doesn’t fit the legal intent of Article 3’s access provisions, or the “in common” language’s addition of a harvestable quantity of fish. It makes more sense to attribute the 270,600 acre feet awarded to the Tribes for fisheries in 1985 as the agricultural reserved water right that was changed to instream flow. This highlights the importance of accurately describing Article 3 and appropriately attributing federal reserved water rights to the purpose they are generated from. [Note: our further research resolved this problem by noting that Article 3 is not a purpose of the reservation but instead conveyed usufructory rights to use the reservation for fisheries within the irrigation project.  See the People’s Compact Framework Paper for how this resolution affected the People’s Compact here.]

 Water Administration, Due Process, and Civil Rights

We assert that the water administration mechanism proposed by the CSKT Compact violates the due process rights of Montana citizens and is a violation of the civil rights of citizens guaranteed by the U.S. Constitution.

A central feature of the CSKT Compact involves the replacement of the Montana Water Use Act[17] with a new compact-created administration system that permits a political entity to have jurisdiction over the water rights of Montana citizens whether based in federal, state, or tribal law.  Known as the Unitary Management Ordinance or Law of Administration, it vests the power to manage the state law-based water rights and uses of  Montana citizens in a politically-appointed and unaccountable board dominated by the CSKT.

Resolution of disputes among water users within the Law of Administration, whether tribal or non-tribal, is up to a “court of competent jurisdiction”, which under the CSKT Compact the litigating parties must agree upon.  Since it is likely the Tribes will never accept state court jurisdiction, a federal court will be the only resort of Montana citizens, and that federal court may not have jurisdiction over the issue.

Thus, Montana citizens are deprived of the customary District and State Supreme Court mechanism employed to resolve disputes among citizens and are deprived of the constitutional protections of the Montana and U.S. Constitutions[18].  The liability to the United States and state of Montana for these violations is incalculable[19].

Summary

In summary, the evaluation of the United States liability regarding the proposed CSKT Compact necessarily will involve expanding the scope of the analysis to include the impacts to the thousands of non-Indian citizens within the Flathead Irrigation Project, residing on the reservation, and potentially to the hundreds of thousands of citizens across Montana whose water rights will be impacted by the extensive claims of the CSKT.

The damage done to the Winters Doctrine, the McCarran Amendment, Acts of Congress, Congressional intent, and the civil and due process rights of Montanans, while evident in the terms of the CSKT Compact, are almost incalculable.  For these reasons, we believe that the CSKT Compact is not in any way, shape, or form a settlement of the federal reserved water rights of the CSKT.

 A Proposed Solution

The complexities and impacts of the CSKT Compact, and the potential liability both to the United States and State of Montana generated by it inspired us to develop an alternative solution to present to Congress for consideration.[20]

This effort began with a sincere desire to resolve the federal reserved water rights of the CSKT within the framework of existing federal reserved water rights law and the McCarran Amendment; to respect the Congressional intent in the development of the water resources of the Flathead Reservation;  and to resolve any outstanding water claims of the Tribes.  Because the CSKT Compact itself generated considerable divisiveness, our intent was to also mend fences within our community and across the state of Montana.

Called “The People’s Compact” or “Mending Fences Act”, this alternative solution quantifies the federal reserved water rights of the CSKT,[21] resolves an outstanding 1951 CSKT Claim related to the use of water in the Flathead Irrigation Project, provides for the development of the Tribes’ federal reserved water rights including the rehabilitation of the Flathead Irrigation Project to benefit both fisheries and irrigation, and retains the dual administration system for state law-based and tribal law-based water rights characteristic of every other Compact in Montana.

Under the People’s Compact-Mending Fences Act, there are no off-reservation water claims.  The estimated costs for this settlement, including the resolution of the outstanding water claim of the CSKT, are between $600 and $775 million dollars, less than one-third of the costs in Senator Tester’s S. 3013.

We have attached to this letter a background paper describing the Legislative Framework for the People’s Compact, which provides new information the Department may not be aware of and describes the current issues that must be addressed in moving forward with the resolution of the CSKT federal reserved water rights.  The paper provides a pathway forward in rectifying the deficiencies of the CSKT Compact/S. 3013, limiting the United States’ liability, and providing a viable and vibrant self-determined future for the full use and development of the CSKT federal reserved rights.

For your information, we have also attached additional information including a legal review of the CSKT Compact and charts comparing Indian water rights settlements in Montana and across the United States with the proposed CSKT Compact.  We hope you find these useful to the Department’s evaluation of the CSKT Compact.

We look forward to our discussion with you and the Secretary’s Indian Water Rights Office.

Sincerely,

/s/ Al Olszewski

Dr. Al Olszewski, State Senator

Co-signators: Boone Cole, Chairman Jocko Irrigation District; Catherine Vandemoer, Ph.D. Chair, Montana Land and Water Alliance;Terry Backs, Concerned Citizens of Western Montana

Attachments

Cc:  Office of Senator Steve Daines, Congressman Greg Gianforte

FOOTNOTES

[1] 35 Stat. 444, 448-50. See also Letter to James Steele, Jr., Chairman, CSKT from Edith Blackwell, Deputy Associate Solicitor, Division of Indian Affairs, U.S. Department of the Interior,  December 21, 2007.

[2] In 1982, the Bureau of Indian Affairs (BIA) timely filed water claims on behalf of project water users in the Flathead Irrigation Project.  In 2015 the BIA filed competing claims on the same water but on behalf of the CSKT.

[3] Richard A. Simms, “Letter to Montana Legislators Regarding the Lack of Quantification in the Proposed CSKT Compact”, January 11, 2015, in Montana Land and Water Alliance, 2015,  Legal Analysis of the CSKT Compact

[4] The Compact Implementation Technical Team (CITT), already implementing the compact inside the federal irrigation project, replaces the BIA. Irrigators, who own 90% of the project lands, are allowed one representative.

[5]The 1908 Act maintains federal ownership of the federal infrastructure although management and operations would be turned over to the landowners served by the project

[6] The Winters Doctrine specifies that the federal reserved water right is the amount of water necessary to fulfill the purposes of the reservation and is a discrete amount of water limited to the reservation land.

[7] The additional CSKT claims filed after the Compact was passed by the Montana legislature included claims for 35 million acre feet of ground water beneath the reservation.  The United States did not include these ground water claims as part of their filing of the post-passage 10,000 claims.

[8] The concept that Indian Tribes reserved their own reservation is defeated by history and case law.  See, Simms, Richard A., January 8, 2015, Memorandum to Senate President Debby Barrett and Speaker of the House Austin Knudsen; and Simms, March 18, 2015 “Threat of 10,000 Off-Reservation Instream Flow Claims” in Legal Analysis of the CSKT Compact, MLWA, April 2015.

[9] The United States and CSKT claim that Article 3 of the Treaty of Hellgate conveys a tribal reserved water right to meet the Treaty right to access aboriginal lands to fish. The extent and scope of the Article 3 access right is a hotly debated and litigated issue outside of McCarran Amendment proceedings.

[10] 17 Ind. Cl. Comm. 297. Stipulation agreement found at p. 309 and reads “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.”

[11] American Indian Policy Review Commission Final Report Submitted to Congress May 17, 1977

[12] Any additional claims for off-reservation water rights in western and eastern Montana would have to be resolved through a separate court action outside of the McCarran Amendment proceeding’s Montana General Stream Adjudication.

[13] Treaty with the Flatheads etc., July 16, 1855 12 Stats. 975, Ratified March 8, 1859, in Indian Affairs Laws and Treaties Vol. II (Treaties), Compiled by Charles J. Kappler, Washington, Government Printing Office, 1904.

[14] See also Antione et ux. V. Washington, 420 U.S. 194, 205 (1975).

[15] Simms, Richard A., 2015. “Threat of 10,000 Off-Reservation Instream Flow Claims”, in Montana Land and Water Alliance Legal Analysis of the CSKT Compact, March 18, 2015.

[16] For example, see United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975), otherwise known as the Boldt Decision, that expanded the “in common” language to include a right to 50% of the harvestable fish. The decision did not amend the nature of Article 3 to include a water right.

[17] Montana Code Annotated Title 85

[18] Simms, Richard A., 2015, “Constitutional Violations of the CSKT Compact”, in Montana Land and Water Alliance, 2015, Legal Analysis of the CSKT Compact.

[19] Title 42 Sec. 1985

[20] With the completion of the negotiations on the CSKT Compact and its passage by the Montana legislature, Montana’s Compacting process through the Montana Reserved Water Rights Compact Commission has been completed. Pursuant to that process the CSKT and United States water claims on behalf of the CSKT were filed with the Montana Department of Natural Resources and the Montana Water Court in July 2015.

[21] The quantification numbers are taken from the 2015 United States water claims filings that were developed to fulfill the agricultural, on-reservation fisheries, and industrial purposes of the reservation as articulated in Articles 3, 5, and 6 of the Treaty of Hellgate. [Note, Article 3 is not a purpose of the Flathead Reservation.  See here.]

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Time and the CSKT Compact

©2019 DrKate

Time has not been kind to the CSKT Compact.  As we knew all along, as soon as Montanans clearly understood the overreach and lawlessness of the CSKT Compact, they would abandon it in droves, and wonder why their state officials pillaged the water resources and Constitutional protections of its citizens in favor of the CSKT.

That is the state of the CSKT Compact today, only supported by a few of the “usual suspects” who were likely “paid” handsomely to go along with the plan, or were too uninformed to know what they were doing, or were just simply lazy and didn’t do their homework.  After all, the state, CSKT, and the Bureau of Indian Affairs screamed at the top of their lungs that the CSKT Compact was the ONLY solution. But now we know that is untrue.  The People’s Compact/Mending Fences Act is such a solution and ultimately represents what the state should have produced for its citizens.

Let’s review the basic tenets of the CSKT Compact and assumptions underlying the state and CSKT public relations program which were aimed at an unsuspecting public.  Montana citizens hired a group of attorneys who specialized in, and had won significant Supreme Court cases on federal reserved water rights.  The questions we asked our attorneys reflect the basic ‘tenets’ of the CSKT Compact that were used to justify its unjustifiable excess.  Here are the questions, and in short form, the attorneys’ analysis

  1. Who reserved the Flathead Indian Reservation, the United States or the Tribes? The United States
  2. Whether Article 3 of the Treaty of Hellgate grants a water right to the CSKT off-reservation on aboriginal lands? No, Article 3 is an access right, and no court decision has changed the nature of the Article 3 access right.
  3. The impact of the compact on the agricultural water resources, rights, and irrigators of the Flathead Irrigation Project?  The taking of water from the irrigators is a Fifth Amendment taking without compensation
  4. The legal validity of the “10,000 claims” filed by the Tribes and the United States in eastern Montana. The claims have no basis in the law or Treaty of Hellgate.  The state of Montana should not have allowed the Tribes to file these additional claims which are currently being used to threaten Montanans and the Water Court.
  5. Whether the state of Montana can delegate its constitutional responsibilities for administering water resources, and the provisions of the Montana Water Use Act, to a politically appointed board dominated by the federal government and Tribes acting under a new law created by the compact? The state cannot delegate its constitutional responsibilities; the Tribes have no jurisdiction over non-Indians or state law-based water rights; and the tribes are an adversarial party that cannot manage the water rights of others
  6. Montana and U.S. Constitutional violations of the CSKT Compact? Compact and legislature violated Articles I, II, III, and IX of the Montana Constitution, and Articles 4, 5, and the Fourteenth Amendment to the U.S. Constitution
  7. Whether the state negotiation process permits it to work outside the legally-established parameters of the Winters Doctrine and state law?  A compact is a creature of federal and state law, and therefore, must be negotiated within that framework.  In other words, the state and tribes cannot “do anything they want in a negotiation”.

Note that the questions above illustrate the precedent-setting framework though which the state negotiated this compact.  These were the assumptions the state, tribes and BIA used to tell a tall tale. Please review the synopsis of the legal analysis for more information on the conclusions of the MLWA attorneys in analyzing the legality of the CSKT Compact.

For example, we were told, as if it were settled law,  that the Treaty of Hellgate-Stevens Treaty- Article 3 provided the CSKT “vast off-reservation water rights in all the lands they subsisted in”.  That is legally, historically, and factually incorrect.  But is was presented as ‘truth’.  It is still repeated today by compact proponents, the state of Montana, and some legislators who voted to approve the thing in 2015.  Instead of owning up to the unlawfulness of off-reservation water rights in a federal reserved rights settlement, the Tribes, state, and compact proponents called the citizens of Montana “racists”.

These same off-reservation water rights have now compromised the property values of hundreds of thousands of citizens over 2/3 of the state, where land that was sold as irrigated land now sells as dry land because of the uncertainty of the Tribes’ time immemorial claims for water.

Contrary to the claims of the Farm Bureau, Montana Stockgrowers Association, and FARM, there is no certainty in the CSKT Compact.  This is another false siren song.

The excesses of the CSKT Compact reflect to a “T” the excesses and overreach of every facet of the Obama Administration.  And having reviewed the CSKT Compact extensively, we the people find nothing redeemable about it.  The only correct starting point to solve the federal reserved water rights of the CSKT is the People’s Compact/Mending Fences Act.

The end of the CSKT Compact will mark the end of an error.

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!

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?