Catherine Vandemoer’s flawed legal analyses

by Attorney Hertha Lund

There she goes again. Catherine Vandemoer’s recent column illustrates why Montanans should not trust someone to practice law without a license, who needs to build a citizens’ group for her income. Ms. Vandemoer’s constant mistruths and self-serving rantings have been very bad for Montana agriculture.

In her recent rant, Ms. Vandemoer questioned whether the CSKT Compact actually passed. She based her question on a recent suit filed by the Flathead Joint Board of Control (“FJBC”) against the entire Legislature, the Governor, and the Attorney General of Montana. The FJBC argues language in the CSKT Compact is a violation of the State Constitution prohibition on waiving sovereign immunity.

However, the FJBC and Ms. Vandemoer have it all backwards. The Compact’s waiver of sovereign immunity is completely the opposite of what the Constitution prohibits. Instead of granting immunity, which is prohibited, the Compact waives sovereign immunity vis-à-vis the Eleventh Amendment of the United States Constitution.

The State of Montana, the federal government, and the Tribes are all sovereign. In other words, these entities cannot be sued in court unless they waive their immunity and agree to allow suit.

For example: The state cannot be sued in federal court or Tribal court under the Eleventh Amendment and related court decisions. The federal government cannot be sued in state court. Correspondingly, the Tribes cannot be sued in state or federal court.

The truth is exactly the opposite of what the FJBC is alleging in its court filing. The Compact actually ensures that the state, the federal government, and the Tribes can be sued in an appropriate court for the limited purposes detailed in the Compact. These provisions in the Compact have nothing to do with whether the State of Montana could be sued for a taking of private property, as Ms. Vandemoer alleges.

Further, Ms. Vandemoer continues to promote the argument that irrigators lost property rights because of the Compact. Again, if she were a licensed attorney, she could be held liable for malpractice because of the mistruths she spreads for her personal gain. However, her practice of law without a license does not require her to have the same accountability as that of a licensed attorney.

For a taking to occur, an individual must have a property right, as defined under state law. Under Montana law, in order to have a property right in water, an individual must have filed for the water right in 1982 or 1996 pursuant to the Montana Water Use Act. Therefore the question is: Did any of those claiming a taking, file and declare their property right so that they have a property interest defendable under Montana law?

The opponents’ writings are vague on this issue; however, it appears that three parties, the CSKT Tribes, the Joint Board of the Flathead Irrigation Districts, and the United States government all filed on their irrigation claims. The Compact specifically states that nothing in the Compact changes fee owned land or authorizes the taking of any water right.

Therefore, regardless of the Compact, any of the entities that filed pursuant to the Montana Water Use Act will have their day in the Montana Water Court during the ongoing adjudication proceedings.

If there is somebody now claiming a water right in the irrigation project, who has not filed pursuant to the Montana Water Use Act, then that person does not have a property interest in a Montana water right, regardless of whether the Compact passed the Legislature.

The reality is that Ms. Vandemoer is attempting to take advantage of Montanans, and their sense of fairness, by alleging the Compact will take private property which is simply not true.

In addition to getting the substantive law backwards, the FJBC also failed to follow the law in their recent filing for a temporary restraining order. Further, the FJBC filed their lawsuit in the wrong court.  According to Montana law, the only state district court the lawsuit can be correctly filed in is in Lewis and Clark County. The lawsuit that Ms. Vandemoer supports was not even filed in the right court and, even if it were the right court, the interpretation of the law the FJBC and Ms. Vandemoer are relying on is simply wrong.

“Plaintiffs, have presented a purely political, non-justiciable question that, if seriously entertained by this Court, would wreak havoc in the legislative process,”

the Attorney General said in his brief.

“It takes little imagination to predict the mischief that plaintiffs’ attorney could create by inventing last minute claims that a bill is unconstitutional, and then suing for a TRO [temporary restraining order] on that basis before the bill is even implemented or applied.”

In addition to having the law wrong, the FJBC has gone rogue. According to Paul Guenzler, who is also a board member of the FJBC, he and many other irrigators oppose the FJBC’s actions.

“It is a travesty that the FJBC seems to be overrun by a vocal minority who do not seem to care if they throw me, agriculture within the Flathead Indian Reservation, and all of Montana’s agriculture under the bus for their uninformed legal theories,”

Guenzler said.

“The irrigators who support the Compact, myself included, are not interested in paying attorneys for the next several decades to profit from some people’s bullheadedness. We are interested in keeping our family ranches or farms viable so we can pass them on to the next generation.”

“Many of the irrigators oppose the money that the FJBC has spent and is currently spending on lawsuits and lobbyists,”

Guenzler said.

“It is my understanding, the FJBC has spent millions of dollars litigating, and that they have lost more than 30 cases and only won one case. I, and many other irrigators, have been trying to reign in this rogue board from utilizing the money, which they collect from us when we pay our irrigation fees to the County, to fund their crazy ideas related to the Compact.”

Irrigators on the Flathead Reservation want to move forward without Ms. Vandemoer and her special interest crew spending their money on ill-advised lawsuits.

It is time for the CSKT Compact opponents to admit that their ideas did not carry the day in the free-market of ideas. It is time for those who have moved to Montana to try and take advantage of Montanans, in order to build their livelihoods, to either move on or learn Montana law and stop spinning mistruths.

Hertha L. Lund is an attorney who has more than 25 years working on behalf of agriculture on legislative issues. She worked for irrigators who supported the Compact.

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