Former water court judge explains process
Berl Tiskus
Former water court judge Bruce Lobel spoke to about 300 people Wednesday, Oct. 2 at the Ronan Event Center.
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RONAN — “Water is a flammable substance in this valley, they told me,” said Bruce Lobel, grinning.
Lobel, a retired Montana water court judge, was in Ronan Wednesday, Oct. 2, to present information on the water adjudication process.
Lobel had been on the water court for 23 years and in that time adjudicated more than 40,000 cases as well as worked on at least five Indian Reserved Water Rights Compacts.
Making it clear he didn’t represent the water court and would remain impartial, Lobel said “I am not a proponent or an opponent of the Confederated Salish and Kootenai Tribe compact. My goal here is to explain the water right adjudication process to you.”
Lobel gave the crowd of about 300 “an adjudication overview and reserved water rights fly-over” and then answered a few questions.
In 1979, the Montana legislature passed a water rights claim act. Indian reserved water rights did not need to be filed.
The law said water rights claims should be filed by April 30, 1982.
”A timely filed claim is prima facie (evidence to prove the case) proof of its contents, and that’s a very big difference,” Lobel said. “The burden of proof is on the opponent.”
Failure to file a claim by April 30, 1982, resulted in forfeiture of water rights, according to Lobel.
Untimely filed claims, or claims filed late, are subordinate to reserved and timely filed claims.
If an Indian reserved water rights compact is approved by the Montana State Legislature, then it goes to the United States Congress, then the President of the United States, and then it is submitted to the Montana Water Court for final approval. The water court can only approve or reject the compact; it can’t add or delete anything.
It’s still possible for a compact to go through the Montana legislature in 2015, Lobel said. One thing compacts do is seek federal funds to accompany the compact.
“Typically,” Lobel explained, “it takes several years for a compact to make it through Congress.”
If the legislature fails to approve the compact, all Indian reserved water rights claims must be filed with the Department of Natural Resources and Conservation by July 1, 2015.
Lobel showed a Montana map with 85 hydrological basins identified. The water court is charged with completing initial decrees in every basin by 2020.
In the event of no compact, the water rights claims will be adjudicated (settled in court) in the four years between 2015 and 2020.
The DNRC will send out notices of adjudications to folks who have water rights. People who oppose those water rights may file an objection to those water rights or tribal water rights.
Again, Lobel said the burden of proof that a water right is inaccurately claimed is on an objector.
He also passed out copies of an interpretation of the Winters Act.
The 1908 doctrine, a ruling by the U.S. Supreme Court, contended that when the United States set aside land for the reservations, it also reserved a quantity of water necessary to fulfill the reservation’s purpose.
“Reserved water rights are established by reference to the purpose of the reservation,” Lobel said, “rather than to the actual present use of the water.”
“My belief is that predicting the outcome of reserved water rights litigation is like trying to time the stock market, commodity trades or proposing marriage. You don’t know — past performance is not guarantee of future results,” he said. “It’s not easy. Rocket science is easy compared to some of this stuff.”
There are benefits to negotiating; one of those is the possibility of receiving a significant amount of money from the federal government to improve the FIIP.
During the question and answer period, an audience member asked Lobel if each generation on a family-owned property has to refile on water rights. The answer was not if the original claim had been filed before April 30, 1982.
Lobel was also asked if the state would defend an individual’s water rights against the tribes’.
“I don’t know,” Lobel said, “if the state would provide money for state-based water rights.”
Another person asked if something comes before the water court, does that cost somebody money?
Lobel answered that it costs the taxpayers. The litigants don’t have to file a fee nor do they need an attorney, but it takes time and money to defend yourself.
A question was also asked who has to quantify their water needs.
Everybody in Montana, Lobel said.
Although Lobel said he had never dealt with a Walton right during his time on the bench, he said it was his understanding that if a water user purchases land from a tribal member, it comes out of trust first. Then if there is water being used on that piece of property, there is sometimes a Walton right attached to it.
An audience member asked if adjudications typically address the water management.
Other compacts Lobel has worked with have a clause that the tribe will distribute the state-based water rights.
The proposed CSKT water compact has a unitary management board, comprising two CSKT appointees, two state appointees and one federal appointee.
“My hope is that the decision makers and the public will use the next 12 months to review the compact, to hold educational public meetings and to consider whether modifications might be helpful,” Lobel said. “Get together and talk about it, not angrily. There’s still time, just because the compact didn’t make it through the last legislature.”
For more information on the water rights compact or water rights in general, go the the CSKT website at www.cskt.org or the DNRC website at dnrc.mt.gov/rwrcc/Compacts/CSKT/Default.asp.
