Hertha Lund: Why I support the Compact

by Attorney Hertha Lund, published in Western Ag Reporter on March 12, 2015, PDF here

There are few rural Montanans who haven’t heard about the CSKT Water Compact. I’m a Montana rancher and lawyer who is working for a group of Montana irrigators. My clients support the Compact and believe its approval is essential to their future on the land. I understand that feeling.

As a Montana ranch girl whose family lost our place during the 1980s, I know the pain of losing the family ranch. Since I no longer had a family ranch to go home to, I have spent the last 25 years defending ranchers’ and farmers’ water and other property rights. At first, I covered the United States Supreme Court as a reporter and sat in on several important private property rights cases. After watching the court proceedings, it became clear that I did not want to report the events and I needed to be more involved. I felt a strong desire to defend landowners and their rights.

Which brings me to today: I strongly believe that approving the Compact makes sense for Montana. To explain why, I’m going to share with you a little about my legal experience.

Twenty-three years ago I left journalism and returned to Montana to attend law school. During two of the three years of law school, I lobbied at the Montana Legislature on behalf of the Montana Farm Bureau Federation. I helped draft the Private Property Rights Assessment Act, which passed in 1995. After law school, I clerked for the Chief Judge of the United States Court of Federal Claims, where all takings cases against the federal government are decided. The Judge I clerked for decided several water rights takings cases.

Since that clerkship, I have continued to work for farmers and ranchers on water and other property rights issues. At one point, due to my deep interest in water rights and takings, I was recruited to work for the Washington Farm Bureau Federation on litigation involving the Endangered Species Act (“ESA”), regarding salmon and bull trout populations. Additionally, I have litigated water rights and takings cases involving instream flows for fish and irrigation rights before the United States Court of Federal Claims and the Federal Circuit Court of Appeals. With this in-depth background of 20 plus years of experience working in the courts on behalf of farmers and ranchers and their property rights, I support the CSKT Compact.

We hear many people delivering their legal opinions about the Compact; however, we have not heard from any attorney licensed in Montana on the Compact opponents’ legal claims. Those who freely give their legal advice related to the CSKT Compact, takings and other constitutional claims have never tried a case on these issues. Further, their opinions ignore decades of laws that run completely contrary to their expressed legal opinions.

For example, many of those opposing the Compact have stated that the Compact gives ownership of the State’s water rights to the CSKT Tribes. This is simply not true. Montana owns the water, and those who use the water own the water right, because a water right is a “use right.” The Compact, like all of Montana’s Indian reserved water rights compacts, or an irrigator’s abstract, quantifies the use right that the United States holds in trust for the Indian Tribes pursuant to the Winters case in 1908. Therefore, the opponents are simply wrong both in fact and in legal analysis.

Other opponents have claimed the Compact gives the CSKT Tribe 110,000 acres of irrigated land owned by individuals. Again, this is simply not the case. There is nothing in the Compact that transfers one iota of land ownership. In fact, the Compact specifically states that it does not, “transfer, convert, or otherwise change the ownership or trust/fee status of land on the Reservation.”

The Compact does not take private property from any individual. Instead, the Compact quantifies a senior water right that the United States Supreme Court found belongs to Indians on their reservations.

Another misconception is that someone is just using bullying tactics or threatening that the CSKT Tribes will file their water rights in order to scare legislators into passing the Compact. If the Compact fails, then, by law, the CSKT Tribes have to either file their water rights claims or lose them. See §85-2-702 of the Montana Code. All other water rights holders went through a similar process in the 1980s. The Tribes were given an extension on their filing deadline because the Legislature hoped that the Water Rights Compact Commission would be successful in its legislative mandate to negotiate and settle all Indian reserved water rights claims.

If SB 262 fails, we expect the CSKT Tribes to file at least 10,000 claims. The Tribes will have to file their claims by July 1, 2015. Based on my experience of litigating in the Water Court, I estimate that it will cost farmers, ranchers, and other water rights holders more than $1.8 billion of their own money to defend their water rights. Further, I have seen estimates that it will cost Montana taxpayers at least an additional $73 million and several more decades to complete the adjudication process. While all that legal uncertainty is getting straightened out, land values will be depressed, appraisers will be unsure of real values, and bankers will be even more conservative than usual when assessing operating and property loans.

Some of those who oppose the Compact seem to do so on the basis that they want the federal government to be less involved in how Montana manages our water resources, but the truth of the matter is, passing the Compact will ensure that decisions about Montana’s waters are left to Montanans. The Compact is based on the Tribes’ many years of biological science and modeling to meet the needs of fish. Without the Compact, the federal government can come into the state and arbitrarily make decisions about our water use based on the ESA and the needs of certain species—like the bull trout. Therefore, if you really dislike the federal government, and its ability to influence water rights issues in Montana, there is no other choice but to support the Compact.

The CSKT Compact is the product of many years of negotiation and compromise by all parties. There are no legal boogey men in the document. Based on the facts and legal precedent, passage of the Compact is a no-brainer in order to protect property rights, individual citizens’ budgets, and taxpayers’ dollars.

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