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Why I Support the CSKT Water Compact, a Property Rights Attorney’s Opinion

Western River
Photo courtesy of David McNew/ Getty Images

The following op-ed was written and submitted by Hertha Lund, a Bozeman area attorney with expertise in Montana property and water rights laws:

There are few rural Montanas who haven’t heard about the CSKT Water Compact. I’m working for a group of Montana irrigators who support the Compact and believe its approval is essential to their future on the land. I understanding that feeling.

As a Montana ranch girl whose family lost their place during the 1980s, I know the pain of losing the family ranch. Since I no longer had a family ranch to go home to, I have spent the last 25 years defending ranchers’ and farmers’ water and other property rights. I covered the United States Supreme Court as a reporter and sat in on several of important private property rights cases. After watching the court proceedings, I decided that I did not want to be a reporter of events. Instead, I wanted to defend landowners and their rights.

I passionately believe that approving the Compact makes sense for Montana. To explain why, I’m going to share with you a little about my legal experience.

Twenty three years ago I left Washington D.C., where I was working as a journalist, and returned to Montana to attend law school. During two of the three years of law school, I lobbied at the Montana Legislature on behalf of the Montana Farm Bureau Federation. I helped draft the Private Property Rights Assessment Act, which passed in 1995. After law school, I clerked for the Chief Judge of the United States Court of Federal Claims, where all takings cases against the federal government are decided. The Judge I clerked for decided several water rights takings cases.

Since that clerkship, I have continued to work for farmers and ranchers on water and other property rights issues. At one point, due to my deep interest in water rights and takings, I was recruited to work for the Washington Farm Bureau Federation on litigation involving the Endangered Species Act, and salmon and bulltrout populations. Additionally, I have litigated water rights and takings cases involving instream flows for fish and irrigation rights before the United States Court of Federal Claims and the Federal Circuit Court of Appeals. With this in-depth background of 20 plus years of experience working in the courts on behalf of farmers and ranchers and their property rights, I support the CSKT Compact.

We hear many people delivering their legal opinions about the Compact; however, we have not heard from any attorney licensed in Montana on these legal claims. Those who freely give their legal advice related to the CSKT Compact, takings and other constitutional claims have never tried a case on these issues. Further, their opinions ignore decades of laws that run completely contrary to their expressed legal beliefs.

For example, many of those opposing the Compact have stated that the Compact gives ownership of the State’s water rights to the CSKT Tribes. Montana owns the water and those who use the right own the water right because a water right is a “use right.” Further, they ask, why is there nothing in the Compact that gives away water or water rights? The Compact, like all of Montana’s Indian reserved water rights compacts, quantifies the use right the United States declared belongs to the Indian Tribes in the Winters case in 1908. So, the opponents are simply wrong both in fact and in their legal analysis.

Other opponents have claimed that the Compact gives the CSKT Tribe 110,000 acres of irrigated land owned by individuals. Again, this is simply not the case. There is nothing in the Compact that transfers one iota of land ownership. In fact, the Compact states that the Compact does not, “transfer, convert, or otherwise change the ownership or trust/fee status of land on the Reservation.”

Another argument against the Compact that is simply wrong is that some have an unfounded fear of the CSKT filing their water rights claims. If the Compact fails, then, by law, the CSKT Tribes have to either file their water rights claims or lose them. All other water rights holders went through a similar process in the 1980s. The Tribes were given an extension on their filing deadline because the Legislature hoped that the Water Rights Compact Commission would be successful in its legislative mandate to negotiate and settle all Indian reserved water rights claims.

Currently, if SB 262 fails, we expect the CSKT Tribes to file at least 10,000 claims. Based on my experience of litigating in the Water Court, I estimate that it will cost farmers, ranchers, and other water rights holders more than $1.8 billion of their own money to defend their water rights. Further, I have seen estimates that it will cost Montana taxpayers at least an additional $73 million and several more decades to complete the adjudication process. While all that legal uncertainty is getting straightened out, land values will be depressed, appraisers will be unsure of real values, and bankers will be even more conservative than usual when assessing operating and property loans.

The CSKT Compact is the product of many years of negotiation and compromise by all parties. There are no legal boogey men in the document. Based on the facts and legal precedent, passage of the Compact is a no-brainer in order to protect property rights, individual citizens’ budgets, and taxpayers’ dollars.

The Compact is a complex document. But that’s not a good reason to do away with it and incur potentially huge costs. Analyzing these types of documents and determining whether they are good or bad for my farmer and rancher clients is the kind of work I do. I strongly believe this is the best deal for Montana. If the Compact does not pass, I and other water rights attorneys will be ramping up our law offices to handle the surge of new cases due to the Tribes having to file for individual water rights. Instead of providing an “attorney relief act,” urge your legislator to vote yes on SB 262.

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