by Dr. Ed Berry
In November 2014, Western Montana Water Rights (WMWR) published claims against the CSKT Water Compact by Attorney Richard Simms who is a New Mexico attorney not licensed to practice law in Montana.
Having Simms write claims is a clear admission by Compact opponents that they have produced no valid claim since they began their opposition in June 2012 because if they had even one valid claim, they would not need Simms.
Montana Attorney Hertha Lund countered Simms’ claims for her clients and made her rebuttal public. Here is a summary of Lund’s rebuttal to Simms. Attorneys should read Lund’s version.
Simms: All Montana water rights are perfected according to Article IX of the Montana Constitution.
Lund: There are no vested water rights in Montana due to the 1979 Montana Water Use Act. The Montana Supreme Court ruled that individuals must file for their pre-1973 water rights no later than 1981. These cases prove there are no vested water rights in Montana.
Simms: Compact would remove irrigators individual water rights.
Lund: The irrigation project is a Bureau of Indian Affairs (BIA) irrigation project under federal law. Only the BIA can deliver an individual water claim and it is unlikely it ever did. Any individual with a BIA water rights claim needed to file for these rights in 1981 according to the Montana Water Use Act. Any individual who meets these criteria can defend the claim in the Montana Water Court unaffected by the Compact.
Simms: Compact would take private property in violation of Fifth Amendment.
Lund: The Montana Supreme Court ruled there is no property interest that can be taken unless an individual filed for a water right by 1981. According to Preasault v. United States a taking claim must be based upon a compensable property interest. In 1993, the FJBC sued United States claiming its failure to transfer the project to them was a taking of their property. The court found “none of these contracts established an express or implied duty to transfer the management and operation of the project to the plaintiffs.” The court held that irrigation districts did not have a compensable property interest, and dismissed their takings claim. Any individual who may have a valid claim can have file a claim with the Water Court with or without the Compact.
Simms: Compact would violate Equal Protection Clauses
Lund: The Equal Protection rule requires that people in similar situations must receive similar treatment under the law. The Compact is facially neutral and would apply equally to all water users living in the reservation. There is no equal protection violation.
Simms: Compact would usurp State adjudication, administration, and regulation of water rights.
Lund: In 1979, Montana amended its Water Use Act to create the Montana Reserved Water Rights Compact Commission and allow adjudication of all Indian and federal reserved water rights claims. This amendment was according to the McCarran Amendment. The Montana Supreme Court ruled the Act properly allows the Reserved Water Rights Compact Commission to adjudicate federal and Indian reserved water rights, and these water decisions will be subject to review by the Supreme Courts of Montana and the US.
Simms: Compact would violate system of centralized records mandated by Art. IX.
Lund: The Legislature created the Compact Commission for the very purpose of negotiating Compacts like the CSKT Compact.
Simms: Compact would give Tribes total control over water rights.
Lund: The Compact will give water rights control to a Water Management Board under the Unitary Management Ordinance (UMO). The CSKT will appoint only 2 of the 5 members to the Board. The Board must make its decisions according to Montana statutes and water law. Board decisions will be reviewable by a State or Federal Court.
Simms: Compact would give away McCarran Amendment jurisdiction over the US.
Lund: The federal government is one of the parties to the Compact and Congress must approve the Compact. Then the Montana Water Court will approve the Compact. This process upholds the McCarran Amendment.
Simms: Compact would negate State control over adjudication and administration of water rights.
Lund: The Compact is using its authority to quantify water rights and the State is negotiating how water rights will be administered pursuant to Montana law. The Compact will not negate State control over water rights.
The claims by New Mexico Attorney Richard Simms have no validity.