What happens if we litigate?
There are a lot of pretty egregious claims being made about why irrigators should litigate, but there has been very little discussion about the risks of such litigation. Some people are even trying to promote the idea that adjudication somehow is different than litigation. Others are promoting the idea that irrigators will magically receive some sort of a great water right in litigation (after the expenditure of $60 million, according to an opponent of the agreement). Great, let’s spend that $60 million and see what happens.
What happens if settlement fails and litigation prevails?
Both the FJBC and the U.S. have filed claims for the FIIP water right in the Montana Adjudication process.
Both of those claims have significant technical problems that would be identified by DNRC during claims examination, leading to the need for amendments to the claim filings (which would cost money in terms of hiring consultants and lawyers to clean up the filings)
The CSKT would inevitably file claims for FIIP water it uses as well (at least for trust lands and fee lands that the tribes own and probably for more), in addition to all its other claims for in-stream flows, municipal, industrial, and consumptive uses.
The FJBC and CSKT would likely object to each others’ claims:
The burden of proof (and thus the burden of paying for lawyers, hydrologists and other experts) would fall on the party objecting to a claim, not the party asserting the claim (all claims filed in the Adjudication are presumed to be valid as a matter of Montana law unless and until an objector introduces sufficient evidence to overcome the presumption)—think pay for attorneys.
The role of the U.S. in this process is unclear (it would likely defend its own claim), but it is somewhat uncertain what role it might play in an objection process, though I think it’s fair to say that it is more likely the U.S. would object to the FJBC claim than the CSKT claim—so the FJBC would be fighting both the U.S. and CSKT claims—again, think pay for attorneys.
The water court would ultimately have to sort out this mess and determine which claim or claims for the FIIP to decree and which to reject — with absolutely no guarantee irrigators would have their claims accepted and the CSKT claims rejected.
The lawyer for the FJBC has said that he thinks the most likely outcome of a fight between the U.S. and the FJBC is for the U.S. to end up owning the water right rather than the FJBC (and that doesn’t take any potential claims by the CSKT into account); again, think trust responsibility of the U.S. to the CSKT trumping FIIP water rights.
Even if the FJBC came out of the adjudication owning the water right (very uncertain), that right could have a priority date no earlier than 1909 (the date the reservation was opened to homesteading); that would make the FIIP right junior, not just to the CSKT in-stream flow rights (which are entitled to a time immemorial date and are thus senior to everything else), but also junior to the 1855 priority date of consumptive rights held by both the CSKT and their members.
The effects that would have on FIIP operations and water deliveries are difficult to foresee but would be unlikely to be good (trust lands and former allotments being entitled to get water ahead of homestead lands, for example).
After adjudication, there would be no protection for any FIIP users (whether they had an 1855 or a 1909 date) from the exercise of the CSKT’s in-stream flow rights, which would very likely be adjudicated higher than the MEF levels identified in the FIIP Water Use Agreement.
The proposed settlement, including the FIIP Water Use Agreement, by contrast provides for the FIIP water right to be owned by the CSKT with some very clear benefits: 1855 date for all lands served by the FIIP; no need to amend or fight over competing FIIP claims in the adjudication (clean-up work done through compact negotiations on the state’s and CSKT’s dime); all FIIP water users assured supply of water (the FTA) despite the existence of the CSKT’s senior in-stream flow rights.
Having the FIIP right be part of the CSKT water rights is in fact better and more protective of irrigators, because of the FIIP Water Use Agreement and the language in the compact that the exercise of both the Tribes’ FIIP and in-stream flow rights are subject to the terms and conditions of the FIIP Water Use Agreement. Irrigators secure a legally enforceable right to use FIIP water in the water use agreement — without 30 years of legal fees. Now, what are you going to do with that $60 million you just saved?
(Editor’s note: Alan Mikkelsen is an independent consultant with 27 years experience in water rights and FIIP issues. He has reviewed the abstracts of all the FIIP water right filings.)