by Dr. Ed Berry
On May 21, 2015, Robert Fanning, Elaine Willman, and other dissatisfied opponents of the Confederated Salish and Kootenai Tribes (CSKT) Water Compact met in Billings, Montana, with New York lawyer Larry Kogan. They hope to block the Compact in Congress.
On June 2, 2015, Fanning formed Regulatory Lawfare Relief, LLC (RAR), a single-member LLC with Fanning the only member. Missoula attorney Quentin Rhodes is RAR’s Registered Agent.
New York attorney Larry Kogan will represent Fanning’s attempt to stop the Compact in the US Congress. Attorney Matt Monforton, also Representative of Montana’s House District 69 who voted against the Compact, will be Kogan’s legal base in Montana.
On August 12, 2015, Fanning’s RAR hosted a public meeting in Kalispell. Attending were about 100 tea party radicals. Speakers were attorney Larry Kogan, Matt Monforton, and rightwing activist Elaine Willman. Prominent attendees were Agenda 21 activist Dan Happel, Robert Fanning and his dog.
Also attending were former Representative Derek Skees (to whom I said “Hello” and shook hands), former Senator and Representative Jerry O’Neil, and Flathead County Commissioner Phil Mitchell. At least two outsiders attended: me and Daily Inter Lake reporter Samuel Wilson.
Kogan and Monforton spoke to their choir. They hope to stop Congressional approval of the Compact via lawsuits and by appeal to Montana Congressman Ryan Zinke.
Will their plan work? Let’s review their plan to find out.
Here is a summary of the history of the CSKT Water Compact.
In the 1970’s, Montana’s Indian tribes, with the support of the federal government, began water-rights lawsuits to clarify Indian water claims. These lawsuits proved to be costly and time consuming so Montana searched for a better way to resolve its Indian water issues.
Montana’s 1979 Legislature created its Reserved Water Rights Compact Commission and gave it the duty and power to negotiate and “conclude” water compacts with Montana’s seven tribes.
This legislative action made Montana the only state to obtain the right to negotiate Indian water issues rather than attempt to resolve the issues by thousands of lawsuits.
In the intervening 36 years until 2015, Montana’s Commission concluded compacts with six of its seven tribes. However, the most complicated compact was the last. The CSKT is the only Montana tribe that signed the Hellgate Treaty and has many non-Indian farmers and ranchers on its reservation.
Unlike the previous compacts, the CSKT Compact attracted serious political opposition. The war was not between Democrats and Republicans as one might suppose. Democrats supported the Compact but Republicans controlled Montana’s 2015 legislature and the fate of the Compact.
The war was between the two dominant factions of the Republican Party: the “responsible” Republicans who supported the Compact and the “Evangelical Tea Party” Republicans who did not.
The war in the Montana Legislature over the CSKT Water Compact was larger than the Compact. It was a war over who would control the heart and soul of the Montana Republican Party.
The war was close. Too close. In the end, the 11 “Responsible” Republicans joined with the 40 Democrats to ratify the Compact by 51 to 49. Yes, the final House vote was 53 to 47 but one Republican and one Democrat who voted against the Compact in preceding votes changed sides on the final vote. And there were 4 very close elections in 2014 for Montana’s House seats. Had any one of them fallen to a Republican, the Compact might not have passed.
Governor Bullock signed the Compact on May 6. Now, Congress and the CSKT must approve the Compact in order to make it valid.
Compact opponents want to return Montana to the costly water lawsuits of 36 years ago.
Should Fanning’s Compact opponents prevail, the tribes will and must by law activate their thousands of individual water-rights lawsuits against Montanans. The full power of the federal government will help the tribes win. Much legal precedent is on the side of the tribes.
Win or lose, these lawsuits will cost Montanans a lot of money and, maybe more important, time. Like 20 to 30 years. A whole generation of Montanans will pass before these water-rights lawsuits are settled. During this time, western Montana water rights will be in limbo. Businesses will avoid Montana because of water risk. Cities will not be able to plan for long-range water resources. Land and property values will fall. Montana’s economy will stagnate while the rest of the world moves ahead.
No Compact opponent made the case that the risk associated with 30 years of water-rights lawsuits is better for Montana than the settlement of all tribal water rights via the Compact. No Compact opponent produced a business plan to show how Montana would benefit more without the Compact than with the Compact. They simply opposed the Compact and ignored this critical comparison.
When (not if) the tribes win their water-rights lawsuits, the federal government will have divided and conquered Montana’s water rights. Then the feds will control Montana’s water and also its land.
The result of rejecting the Compact will be the perfect setup for the federal government to control Montana’s land and water … the exact scenario Compact opponents think they can avoid by stopping the Compact. The fact is the Compact is the only way to stop the federal government control of Montana land and water.
To evaluate their ability to win, let’s review Fanning’s radicals’ demographic representation, their money, and their legal case.
Demographics: Compact opponents represent only 10 percent of Montanans.
My article, “Why the Republican Party is fractured,” describes the “Four Faces of the Republican Party” and their approximate Republican representation as follows:
- Somewhat Conservatives (40%)
- Moderates to Liberals (30%)
- Very Conservative but Secular (10%)
- Very Conservative Evangelicals (20%)
It’s easy to identify the Very Conservative Evangelicals. They are the Ron Paul supporters who turned tea party. They supported Ken Miller and Robert Fanning in the 2012 Republican primary. Now they oppose the Water Compact.
The “responsible” Republicans, who support the Compact, represent the first three factions, or 80 percent of Republican voters. Their problem was these 80 percent elected only 20 percent of Republican representatives in 2015.
The Very Conservative Evangelicals represent 20 percent of Republican voters. Their advantage was they elected 80 percent of Republican representatives in 2015.
Robert Fanning ran for Montana governor in 2012. He came in last among the 7 Republican primary candidates with 2 percent of the vote.
Ken Miller got 18 percent of the vote in his 2012 primary bid for governor. Combined, Miller plus Fanning got 20 percent of the primary vote. This corresponds to the expected 20 percent for Very Conservative Evangelicals.
In summary, Compacts opponents make up about 20 percent of Republicans and Libertarians, or about 10 percent of all Montana voters. If the Compact were put to a vote of all Montanans, it would win by a Landslide.
The 2012 Republican primary winner was Rick Hill. He received 34 percent of the primary vote. But Fanning and Miller supporters considered Rick Hill “not good enough” for them. So they voted Libertarian and helped elect Democrat Steve Bullock governor. Now they are hypocritical when they complain about Governor Bullock. Rick Hill supported the Compact in 2015.
These radicals also protested Republican Denny Rehberg in 2012. They voted Libertarian and thereby elected Democrat Jon Tester to the US Senate. Now they are hypocritical when they complain about Senator Testor.
These rightwing radicals think they are “freedom fighters” but they are just the opposite.
Rightwing radicals are the political mirror image of the leftwing radicals who voted for Ralph Nader in 2000. Nader voters shot themselves in the foot when they helped elect George Bush rather than Al Gore. Today, the leftwing radicals have learned their lesson and rightwing radicals have not read the memo.
The demographic of Compact opponents opposed Congressman Ryan Zinke in his bid for Congress in 2014. They voted Libertarian. Some of them, inspired by Pastor Chuck Baldwin, National Chaplain for Oath Keepers, voted for Zinke’s Democratic opponent because they hated Zinke so much. Some of these Very Conservative Evangelicals would not vote for Zinke because he scored only 80 percent on prolife scoresheets. It did not matter to them that Zinke’s Democratic opponent scored zero.
Leaders of their August 12 meeting passed out Ryan Zinke postcards. They told their sheep to send Congressman Zinke a message to kill the Compact. How would you expect Congressman Zinke to react to these postcard messages from the extreme minority of Montana voters, who opposed him at every step of his election to Congress?
Little do they know that Ryan Zinke thinks for himself and will not be persuaded by political pressure.
Strike One against Fanning’s radicals!
Money: Do they have enough money to win?
Larry Kogan said he must spend 100 hours at $250 per hour to file an injunction against the Compact, which he hopes to complete in August.
Assuming Fanning’s radicals raise this initial $25,000 for Kogan, the costs to file a legal complaint are just the tip of the legal iceberg. They need to budget for at least 1000 hours of Kogan’s time, or about $250,000, plus court and other costs.
Fanning is not known for his ability to raise money. His 2012 campaign for governor could raise only $13,146, according to a state report.
So, how does RAR plan to raise enough money to proceed with their plan? The answer is they passed around three donation cans for RAR.
Does Fanning’s group understand money reality? You don’t raise a quarter million dollars by passing donation cans to 100 tea-party radicals who are known for having no money!
Fanning’s single-member LLC (RAR) is a good way to hide the money because it does not have to report its money sources. It’s his personal money.
Did those who put their money in a RAR Donation Can realize they gave their money, not to a cause, but to Robert Fanning personally? Their money probably helped him feed his dog or buy tires for his aging truck.
Fanning’s radicals need the equivalent of venture capital money. You can’t do this with donation cans.
Clearly, no heavy hitters have donated to Fanning’s group. Larry Kogan’s claim the Compact will have a detrimental effect on other states seems to be an effort to attract big money from out-of-state. And if any fat cats contribute to Fanning’s effort they are certain to require a different corporate structure than Fanning’s single-member LLC.
To attract big money, Larry Kogan needs an “elevator speech.” He did not have one on August 12. He did not show he has a plan to win within a budget.
Water Barons who want to own Montana’s water are a possible source of big money. I wrote about this in “Good bye, Montana … your Tea Party killed you,”
Here’s the real conspiracy Montana’s Compact opponents were too blind to see. Outside Montana, water barons are buying up water everywhere.
These water barons want Montana’s water but the CSKT Water Compact prevents Idaho, Oregon, and Washington from calling Montana’s Flathead River basin water.
Without the Compact, these calls will happen at the first signs of water shortages in these downriver states. And the climate is now shaping up to make this a reality.
It’s easy for big money to manipulate Montana’s right-wing Tea Party radicals. Simply use the word “conspiracy” and the right-wing nutcases would come out of their sand boxes to stop the Compact without thinking.
Whether they know it or not, Fanning’s radicals are working for the Water Barons.
Strike Two against Fanning’s radicals!
Legal: Do they have a valid legal case?
Kogan published his legal claims against the Compact in Montana’s newspapers. His most complete article with references is in the Canada Free Press on July 2, 2015.
Kogan waxes poetic about the Declaration of Independence, the Magna Carta, the U.S. Constitution, and the Bill of Rights. He writes “We the people” have certain rights and oppressive sovereign government must abide by the rule of law.
We all agree with these documents, which is why they are a good sales approach to those who don’t demand details.
Kogan begins his article with three misconceptions. He wrote:
- “The ‘cram-down’ approach that many Montana politicians and legislators recently employed to ensure the Confederated Salish & Kootenai Tribes (CSKT) Water Compact‘s hasty enactment into State law”
- “Over the expressed protest of Montana’s citizens”
- “Their legislators’ inability to review these abstracts amid an unsavory voting process generated considerable confusion and doubt regarding the Compact’s true purpose, objectives and impacts.”
The truth is:
- The only “cram-down” in the legislature was by Compact opponents who did everything possible to stop the Compact.
- Compact opponents represent some 10 percent of Montana voters, not the majority as Kogan implies.
- Legislators had sufficient opportunity to review the Compact.
Most legislators had over two years to review the Compact. December 2014 Compact changes were minor. Even newly elected legislators had December 2014 through March 2015 to review the Compact.
Many opponent legislators formed their position on the Compact before the 2015 session. Then they invented the “no time” excuse as another of their many invalid complaints.
From my own experience, I learned it takes about 200 hours of study to understand the Compact.
What about Kogan’s case?
Is Kogan so blind to Montana politics that he thinks he represents the majority of Montana voters?
Kogan has adopted Elaine Willman’s delusional view of the Compact. The announcement for Fanning’s RAR includes Elaine Willman as “Federal Indian Affairs Expert and Author.”
Kogan uses the same legal claims Willman used unsuccessfully during the legislative session.
My article “Compact opponents’ case is ‘Going to Pieces’” summarizes Willman’s irrational beliefs about the Compact:
Willman believes there are five evil forces “dedicated to the demise of State sovereignty, citizen and property rights.” Her five evil forces are:
- The federal Executive branch
- Tribal governments
- Environmental extremists
- United Nations and, you guessed it,
- Agenda 21
These forces, she believes, have oppressed and intimidated “elected officials at every level of government and academia in Montana.”
Willman admits the 1970’s Legislatures that created the Compact Commission were better than the 2015 legislature. The one major difference between the 1979 legislature and the 2015 legislature is the overabundance of Tea-Party Republicans in 2015 who oppose the work on the Compact that the much wiser 1979 legislature began.
Therefore, Willman has made the case that the Tea-Party Republicans are the problem with the 2015 legislature. And she has made the case that we should follow the lead of the much wiser 1979 legislators to approve the Compact, not to reject it. Also, Willman must argue that the Tea-Party Republicans are under the demonic influence of her five evil forces.
Willman writes the CSKT Water Compact is a “legislative Beast” and if Montana approves it, will cause:
- The US Constitution to be irrelevant
- The Montana Constitution to be irrelevant
- NEPA and MEPA to be irrelevant
- Oaths of Office to be meaningless
- The Pledge of Allegiance to be meaningless
- Montana’s 1973 Constitution to become toilet paper
- The 1981 Supreme Court case of Montana v. U.S. to be overturned
- 350,000 Montanans in 11 Counties to be subject to tribal government
- The State of Montana to be governed by the Tribes
- The State’s life support to be turned off.
Kogan has fallen for and represents Willman’s irrational claims.
Kogan claims the Compact is connected with Agenda 21, is part of European and United Nations doctrine, and is an attack on private property. But he shows no evidence to prove his claim.
The Compacts technical water abstracts “effectively sanction the transformation of common law and statutory water and land rights into aboriginal rights.”
These rights enable the CSKT, as owner and operator of the Kerr Dam “to severely restrict water flows from the Kerr Reservoir and Kerr Dam to the Flathead River and the Jocko and Clark Fork Rivers downstream” both on and off the Flathead Indian Reservation.
Compact attorneys have already rebutted these claims and Kogan makes no attempt to counter the rebuttals. Any attorney who does not counter all rebuttals will lose in court.
“the CSKT … has expressed its intention to suspend operations of the pumping stations along the Flathead River that flow to numerous feeder canals and lateral irrigation canals throughout the Reservation.”
“Expressing an intention,” even if it were true, is not a crime nor is it a reason to abort the Compact.
“Severely diminished water flows will adversely affect the land and appurtenant water rights held by, and consequently, the economic interests of, farmers and ranchers operating on and downstream from the Reservation, whose crops and grazing lands will perish and whose cattle and beef production will materially suffer.”
Compact attorneys have rebutted these claims. Kogan does not counter the rebuttals. The truth is the Compact will provide better water management and more benefits to farmers and ranchers than the absence of the Compact.
“neither the Federal Environmental Protection Agency nor the DOI’s Bureaus of Reclamation and Indian Affairs, or its Fish and Wildlife Service, performed an environmental assessment to determine whether the Compact’s projected change(s) in water flows required a full-fledged environmental impact assessment to be undertaken,”
“the DOI Bureau of Reclamation failed to ensure that the scientific assessment (water basin depletion study) it developed in support of the change(s) in water flows incident to the Compact’s implementation satisfied Federal Information Quality Act requirements.”
“the National Oceanic and Atmospheric Administration’s and DOI Fish & Wildlife Assessment’s biological assessments of water flow changes to the Columbia River Basin, upon which the Bureau of Reclamation’s assessment principally relied, had failed to satisfy IQA certification requirements.”
These claims are straight from Willman. Compact attorneys have already rebutted these claims.
In summary, Kogan has made no new legal point that Compact attorneys have not already rebutted.
Strike Three against Fanning’s radicals.
Kogan fans the flames of fear and anxiety.
When you can’t win with fact and truth, then use fear and anxiety to convince your subjects. Most of Kogan’s August 12 presentation promoted fear and anxiety.
William Sargant’s “Battle for the Mind” documents how fear and anxiety can convert people to a desired belief without the benefit of evidence. Those who succumb to a belief without evidence will later disregard evidence that contradicts their belief.
That, in a nutshell, is the basis of both rightwing and leftwing radical political beliefs. Beliefs on both political extremes are driven by fear and anxiety. Leftwing radicals irrationally fear our carbon dioxide will cause a doomsday. Rightwing radicals irrationally fear Montana’s CSKT Water Compact will allow the government to steal their water and land. Neither group will consider evidence that contradicts their delusional beliefs.
Fanning’s rightwing radicals want to stop the CSKT Water Compact in Congress. So far, they have failed to clear three key hurdles:
- They represent only a small minority of Montanans.
- They have no money.
- Kogan has not presented a valid legal case to win.
Maybe they can find money but they cannot ever represent the majority of Montanans. Maybe Kogan can produce a convincing legal case but so far he has failed.
Furthermore, the actions of the rightwing radicals will get them more public attention and this will work against them. A more aware public will reject them in future elections and will work against their goal to stop the Compact.
The CSKT Water Compact, Senate Bill 262, was both the most significant and most contentious bill to pass Montana’s 2015 legislature … and it barely passed. Why?
Because rightwing radicals are more politically active than most Republicans, Compact opponents elected a proportion of the Montana legislature far in excess of their voter demographics.
Compact opponents are associated with the Very Conservative Evangelical Republicans who generally do not support Republican primary winners. They represent about 20 percent of Republican voters and 10 percent of all Montana voters. Yet they elected 80 percent of the Republican House. The tea party radicals thereby came within one or two votes in the Montana House of stopping the CSKT Water Compact … forever.
Compact opponents, in general, did not support Ryan Zinke in his successful bid for Congress. And rightwing radicals, represented by Dan Happel, almost took control of the Montana Republican Party in the last chairman election.
The tea party achievements should be a wakeup call to Republicans.
If you want tea party radicals to control your life, do nothing. If you want more legislators who represent you, then you better get active.
Start by taking back control of your Republican central committees. Then elect legislators who support the Compact and remove those who do not.