At the hearing on HB 427 (Brown), which establishes a
water rights defense fund, this past Friday, March 6, in House Judiciary, the
CSKT’s lead water lawyer confirmed what had recently been suspected, at least
since the Compact Commission attorney alluded to the matter at the informational
session held in February: Along with
giving the CSKT instream flow rights for fishing throughout western Montana, the
Compact would provide the basis, without limitation, for the Tribes and their
members and others to have and exercise a permanent easement across private
ground to access usual and accustomed fishing places “as if it is written in the
deed.” This is unpermitted access in the western third of
Montana.
Here is the link to the Legislature’s video and audio
archive page. http://leg.mt.gov/css/Video-and-Audio/archives/av.asp. Once
you go there, select the “House” in the type of committee bar. Then, select
“Judiciary.” As of today, the top selection in the menu is for the hearing held
Friday. Click on that at the word “Video” and scroll to 3:47:50, where you
will hear Rep. Ellie Hill ask Mr. John Carter about this. His answer is brief
and to the point, ending at 3:49:45: Where the right to fish is recognized, so
is the right to unpermitted access.
There are a number of salient points to take from this.
1. The Compact, which no where explicitly
mentions this matter of unpermitted access across private land, in fact lays the
factual and legal foundation for such demands of a right to unpermitted access
by the 4 to 5,000 members of the Tribes all over western Montana. But wait!
There’s more! The Compact also says, under “Persons Entitled to Use the Tribal
Water Right,” (page 26, line 29 to 30): “The Tribal Water Right may be used by
the Tribes, their members, Allottees, or
their lessees or assigns.” The number of people demanding
unpermitted access across private land is nearly unlimited under this language.
A robust fishing guide business could be built on this right, where “lessees or
assigns” use this right to guide dudes onto and across private land without any
permission.
2. The “usual and accustomed” places open
to access are completely undefined in the Compact so they are unlimited by it.
3. Pursuant to Treaty language, the right
includes the right to construct buildings for curing fish.
4. Every area of Montana, therefore, where
instream flow water rights for the purpose of fishing are given, or shared, with
the Tribes is subject to unfettered access, without permission, by thousands of
people, perhaps tens of thousands. These areas are the Bitterroot river valley,
the entire length of the Clark Fork
River, the Blackfoot River, the Little Blackfoot River, the Kootenai River, the Flathead
River and all three forks, Rock Creek, Flint Creek and many
tributaries, lakes, wetlands, springs, and reservoirs. No area has been
excluded or cut a separate deal from this right of access and building.
Based on a quick review of the published materials
promoting this Compact, the proponents of the Compact, including state agencies,
have never once mentioned that in writing that this “deal” also opens the land
owned by hundreds of thousands of western Montanans to this right of
access.
It is shocking that the Farm Bureau, Montana
Stockgrowers Association, and Montana Water Users Association would support such
destruction of property owners’ rights. Perhaps they can be excused,
temporarily, because they were ill-informed and poorly counseled. The lawyer
for Common Sense Citizens for the CSKT Compact, Ms. Hertha Lund, in fact
denied that the instream
flow water rights for fishing in the Compact provided this grounds for access,
either out of ignorance or deceit. You can see her say this, as confident as
always, at the same link provided above if you scroll to 3:26:07 and watch until
3:27:32. Mr. Carter had to correct her.
Whether from deceit or ignorance, the failure to
candidly alert Montana to this consequence of the Compact
raises serious questions, such as:
1. Was this intended? If so, why were we
not informed? If not, why was the issue not resolved in negotiation?
2. As the proponents have had to admit,
the legal decisions do not
provide a basis for water rights, but a right to fish, which, if found to exist
by a court, means this permanent easement for access. So why agree to give the
CSKT instream water rights for fishing? If one does that, why not as part of the bargain, limit
access to the means allowed by Montana law? Why leave it open?
3. For those Legislators who have voted
for and supported this Compact, did you know of this consequence? If so, why
did you not make it clear? If not, DO YOU
STILL SUPPORT THIS COMPACT?
Many of us who know and respect you
hope you were deceived and will now, publicly, withdraw your support for this
bill.
The standard the Water Court applies to invalidate a
ratified Compact when an objection is raised by a party to a compact is that it
must find “fraud, overreaching, or collusion.” In the matter of the adjudication of existing and
reserved rights to the use of water, both surface and underground, of the Crow
Tribe of Indians of the State of Montana, Case No. WC-2012-06, Order
Dismissing Objections, July 30, 2014, slip op. at
page13.
In light of the established fact that someone from the
State of Montana Compact Commission offered up western Montana to the CSKT,
rather than them demanding off-reservation rights, as admitted by a tribal
attorney at the hearing on SB 262 in the Senate on February 16, [audio link
here: http://montanalegislature.granicus.com/MediaPlayer.php?clip_id=15688&meta_id=97432
scroll to 4:50.], perhaps some collusion, or worse, occurred here.
But you, Legislators, need not worry about litigation
over that and neither do Montanans if you simply kill this very bad,
confiscatory bill.
--
Jon Metropoulos
Metropoulos Law Firm,
PLLC
One South Montana,
Suite L-3
