To Hell with the Facts

Of the many canards that opponents of the Flathead water compact love to trot out, the most bizarre may be the utterly false claim that the compact has been overturned in the courts on the grounds that it is unconstitutional.

Here, for example, we have Lloyd Ingraham, an attorney who should know better, claiming in a letter to the Missoulian that the whole compact is “void” because it was declared so by a Lake County district court. Or take this post by Catherine Vandemoer, watershed consultant and principal mouthpiece for the Concerned Citizens of Western Montana, alleging that the same district court ruling held that an important piece of the compact constituted an “unconstitutional taking [of water rights] without compensation,” and that the ruling is still the law of the land because of the Montana Supreme Court’s “failure” to overturn it.*

The outcome of the court case that Ingraham and Vandemoer are talking about here is not at all what they claim it is, but this all gets a little complicated, so bear with me.

Early last year, the Flathead Joint Board of Control, which represented irrigators served by the Flathead Indian Irrigation Project, entered into a Water Use Agreement with the Tribes and the United States. The agreement, which was to be incorporated into the compact as an appendix, specified how water was to be fairly divvied up between irrigation and in-stream flow on Reservation waterways. But the Western Montana Water Users Association, a group of irrigators who didn’t like the deal, went to court, asking Judge C. B. McNeil to rule that under Montana law, the Joint Board could not execute the agreement without first submitting it to a vote of all the affected irrigators.

McNeil quickly ruled in the Water Users favor, temporarily blocking the Joint Board from moving forward with the agreement, and asked the board to explain why it shouldn’t be required to hold a vote of the irrigators. So the Joint Board went back to court to do exactly that: explain at a hearing why Montana law did not require a ratification vote. The Tribes and the Water Rights Compact Commission both filed amicus briefs supporting that position.

Following that hearing McNeil made the ruling that Vandemoer, Ingraham and a bunch of other compact opponents are now hanging their hats on. McNeil said that the question of whether a vote was required was moot, because the Joint Board, when it entered into the WUA, had exceeded its authority and had taken private water rights from irrigators without compensation.

McNeil’s ruling was stunning, because it came out of the clear blue sky. Nobody, at any point, had ever raised the issue or presented any argument at all regarding who had what water rights, let alone whether any rights had been taken. So the Joint Board appealed to the Montana Supreme Court, which in short order unanimously vacated McNeil’s ruling. Justice Brian Morris wrote the court’s opinion, which you can read here.

What Morris said on behalf of the court was that McNeil’s injunction of the WUA was not properly granted because it was based on the question of takings, which had never been raised or argued in the district court. McNeil, in short, had decided a question that nobody had asked, and the Supreme Court said that he couldn’t do that. And here’s where the mischief starts: because the court didn’t explicitly say that McNeil decided the takings issue incorrectly, Vandemoer concludes that it “failed to overturn” McNeil. But given that the court did explicitly vacate McNeil’s decision in its entirety – including the injunction and writ of prohibition based on the takings theory – Vandemoer is engaging here in what might most charitably be considered a semantic sleight of hand. The court also said in no uncertain terms that McNeil had absolutely no basis for reaching the conclusion he did and that “no grounds exist for [the district court’s] conclusion that the Water Use Agreement will take away those water rights.”

So that’s it: there is one, and only one, court decision holding that the Water Use Agreement (not, as Ingraham would have it, the compact itself) creates an unconstitutional taking of private property. And that one decision has been tossed out and held by the Supreme Court of the state to be groundless. But compact opponents – including some of my colleagues in the Legislature – run around telling anyone who will listen that the compact has been ruled unconstitutional, and to hell with the facts.

*  Vandemoer’s odd and disturbing views are not confined to legal matters. The Montana Cowgirl, who somehow found the patience to dig around in her blog (drkatesview), posted that Vandemoer is also a birther who believes that the New World Order is “flooding the world with poison rain” and that climate change is the result of some mysterious and nefarious effort to modify the weather. One of Vandemoer’s recent posts is a video, which she describes as “essential history important to every American,” of a speech by one Eustace Mullins, a protégé of Ezra Pound, claiming that the Holocaust and the establishment of the Federal Reserve were both Zionist plots.There's even more from the Cowgirl on Vandemoer here.