CSKT Water Compact: The needed Big Picture

by Dr. Ed Berry


Understandably, the proposed CSKT Water Compact has generated emotional feelings among many Montanans. No one wants to lose their access to water that is critical to their personal or economic survival.

In the past year, Compact proponents have made good logical arguments showing how the Compact will benefit Montanans and hurt no one.

The Compact was not ready for approval in 2013, so legislators who voted against it then are not necessarily against it in 2015. It’s a new ballgame.

Having questions about the Compact and making recommendations to the proposed Compact are beneficial actions. Montana Representatives Nancy Balance and Keith Regier properly asked reasonable questions about the Compact. Helen Thigpen, Staff Attorney for Legal Services Office of Montana Legislative Services Division, provided answers to their questions on August 22, 2014.

However, organized hardcore Compact opponents have lied about historical data and lied about court rulings. They have made unwarranted personal attacks on Montana legislators who support the Compact.

They hired a New Mexico attorney who is not authorized to practice law in Montana to make claims against the Compact that have proven to be invalid.

They hired an Arizona hydrologist who claims the Compact is a government conspiracy to depopulate northwest Montana, and who believes funny-looking but normal jet contrails are “chemtrails” the government uses to poison Americans. These conspiracy positions attract right-wing radicals like raw meat attracts flies. She does not understand the benefits of the hydrologic model referenced in the Compact and has made unfounded claims against the Compact.

Radical Compact opponents (as opposed to sensible Compact opponents) have generated so much irrelevant flack that any valid reasons (if any exist) to reject the Compact are lost in the confusion. Their approach is to throw legal spaghetti at the wall to see if some will stick. Nevertheless, I will address their claims in following articles. I have already addressed some of their claims in previous articles.

Let’s start with the necessary big picture.

As in all important life decisions, we error if we list objections to only one side of a decision. Compact opponents have not compared expected results and consequences should Montana approve or reject the Compact.

The fact is, if Montana rejects the Compact, life will not go on as it has in the past 40 years. Rejecting the Compact will begin a whole new water world. Here’s why.

Way back in the 1970’s the federal government filed litigation, as it is obligated to do, to protect tribal reserved water rights. This would have resulted in many complex water trials. In response, the Montana legislature wisely created the Compact Commission via SB 76 in 1979 to negotiate settlements with the tribes rather than have a settlement forced upon Montana by federal courts. The Compact Commission has the authority and duty to negotiate water compacts with tribes in Montana.

Montana’s action stayed the federal government’s litigation until July 1, 2015, a date that is now fast approaching. The CSKT Water Compact is the only remaining tribal compact in Montana. It is also the most complicated. The CSKT and Montana’s Compact Commission have spent many years negotiating the proposed CSKT Water Compact. It represents the best possible solution to a very complex problem.

It should go without saying that the best deal for both parties to a disagreement is to negotiate an agreement rather than to pay lawyers and courts to produce a court-defined agreement.

The CSKT, unlike other Montana tribes that negotiated reservation agreements with the federal government, has significant off-reservation claims to water rights. Some rights date from the creation of the reservation which preceded the creation of the State of Montana, and other rights date from “time immemorial” which precedes everybody.

Now, just a few months before the Compact-approval deadline, radical Compact opponents want to blow the Compact out of the water, wasting years of work, rather than help to fine tune the proposed Compact.

These radicals have even drawn up their own (non-negotiated) version of a Compact thinking the CSKT, Montana, and the federal government might accept it. This is like producing plans for a new airplane that any engineer would know cannot possible fly and expecting Boeing Aircraft to buy it.

Always consider good legal advice.

If you hire a good attorney to represent you in a lawsuit, this good attorney will advise you about the risks and possible consequences of pursuing your lawsuit versus negotiating a settlement.

When attorneys invite me to be an expert witness in meteorology, I always tell them exactly what I will say about a given weather situation. In other words, I give them my advice before we proceed with a contract. To me, honesty is more important than a contract.

Good attorneys are the same. They will tell you the truth even if this means they will not get your business.

All involved Montana attorneys agree on the risks of rejecting the Compact. These attorneys include

  • Attorney General Tim Fox
  • Governor and former Attorney General Steve Bullock
  • Helen Thigpen, Staff Attorney, Water Policy Interim Committee
  • Melissa Hornbein, Staff Attorney, Montana Reserved Water Rights Compact Commission
  • Hertha Lund, Attorney for Montana Water Stewards, a private, non-partisan organization comprised of farmers and ranchers on the Flathead Indian Reservation, and their supporters.

If they were unethical they would tell you to reject the Compact because doing so will make career jobs for more attorneys than Montana presently has. If you love lawyers, reject the Compact. It’s a lawyer’s dream. Unethical attorneys will tell you, “Bring it on, Baby, I want your money.”

But the above attorneys are ethical and they agree that if Montana rejects the Compact, Montanans will pay the consequences. AG Tim Fox says Compact rejection will begin the most costly series of legal cases in the state’s history.

Compact rejection will require hundreds and maybe thousands of off-reservation water users to pay for long, expensive legal battles to defend their water rights in Montana courts, federal courts, and possibly the Supreme Court.

Montanans will pay more taxes to fund Montana’s Department of Natural Resources and the Water Court to process tribal lawsuits as the tribes will claim significant water rights to much of Montana’s water. Their court trials will take an estimated 10 to 30 years to complete.

Montana’s water rights will remain in question until these legal cases are concluded. Businesses that might have moved to Montana will have second thoughts because businesses do not want unnecessary risk. The cost to Montana’s economy could be huge considering the progress that can be made in 10 to 30 years if we accept the Compact.

You can take the advice of these qualified Montana attorneys or reject it. Unless you are an equally qualified Montana attorney, you would be wise to accept their advice.

You can accept their legal advice and still oppose the Compact.

If you accept their advice on the consequences you can still oppose the Compact … if you want. But their advice means you must accept reality.

You have the burden of proof to demonstrate that Montana has more to gain than to lose if it rejects the Compact. You must show Montana will get a better deal on water rights via thousands of legal trials versus the Compact.

You’ve heard the saying, “He who has the most money and the most lawyers, wins.” It’s true. If you fight the Indian tribes for water rights, you will not be fighting some schmuck who stole your bicycle. You will be fighting the federal government because the feds will be paying for all the CSKT tribe’s legal costs. And as all radicals know, the federal government prints money and can make your life miserable forever.

Bill Gates would not waste his money on such a battle. Bill, in fact, would understand he has more to gain by accepting the Compact and then use his money to grow another business. If you are a businessman, you never tie yourself up in court.

Will radical opponents reject good legal advice?

Radical Compact opponents may reject the advice of these good attorneys. They may call these attorneys “traitors”, “unqualified morons”, “government goons”, “tools of the government conspiracy”, and whatever other designations they can think of that will comfort their precious feelings that they are still right to oppose the Compact. That kind of thinking is, after all, what makes them “radicals”.

Here’s the really funny part about these radical Compact opponents: they hate government but they do not realize Compact approval will REDUCE government in their lives, and Compact rejection will EXPAND government in their lives.

Radical Compact opponents criticize those who support the Compact as “RINOs” but they are the real RINOs because their position would cause more government, more taxes, more spending, added legal complexity, and is bad for business in Montana.

Just as some radicals refuse to vote for a Republican whom they consider “not good enough” and thereby elect a Democrat who is worse, these radical Compact opponents foolishly think they gain freedom by fighting the federal government in decades of lawsuits rather than by implementing local water control via the Compact.

Radical CSKT Compact opponents are like Keystone Pipeline opponents.

Left-wing radicals oppose the Keystone Pipeline because they believe it will cause more human carbon dioxide emissions that will, in turn, incinerate planet Earth.

Right-wing radicals oppose the CSKT Compact because they believe it will give the feds control of our water and the feds will use this control to depopulate northwest Montana.

Both need a reality adjustment.