RONAN – Back when he was a practicing attorney, Bruce Loble said his advice to a client in a water rights case was so vague the client finally said, “Why did I come to you? You can’t tell me anything.”
“At least you’re confused at a much higher level,” Loble told him.
That may, Loble admitted, be all he accomplished Wednesday night.
But he did make a PowerPoint presentation to more than 200 people that explained how the adjudication of water rights in Montana has arrived at its current place in history – which, here on the Flathead Indian Reservation, is a divisive and controversial spot.
“A lot of people have told me water is a flammable substance in this valley,” said Loble, recently retired after 23 years as the chief water judge of the Montana Water Court.
The meeting was sponsored by the Montana State University Lake County Extension Office, and was billed as neutral and nonpartisan.
In response to a question, Loble said he came to Ronan at the request of state Rep. Dan Salomon, R-Ronan, a supporter of a proposed reserved water rights compact between the state, the federal government and the Confederated Salish and Kootenai Tribes.
Salomon asked for a nonpartisan view of the adjudication process, and Loble said he has not read the proposed CSKT compact, has no opinion on it and would not address it specifically.
He also stressed that he appeared as a private citizen and not on behalf of the Water Court or the state.
“My ultimate goal here is the same as it was when I was at Water Court,” Loble said. “Bringing peace and harmony to the water users of Montana.”
Loble did encourage locals to use the next 12 months to review the proposed compact, consider its merits and decide if modifications are necessary.
“Extended and prolonged litigation benefits very few people,” Loble said. “There is still time for solutions. You are not at an impasse.”
The former judge suggested that anyone who tells you how courts will rule on water rights has no idea what they’re talking about. Predicting the outcome of litigation is like trying to forecast what the stock market will do and when, he said.
“Rocket science is easier,” Loble said, “because it uses numbers that add up. Judges, justices and legislators do not fall into pigeonholes.”
Even the current Supreme Court has surprised a lot of people, whether it has ruled that corporations are people or upheld the legality of “Obamacare,” Loble said – and most, if not all, of those justices will have been replaced by the time anything involving water rights on the Flathead Reservation might reach the nation’s highest court.
“You’ve got to figure out now a case that won’t be in front of the Supreme Court for another 20 years,” he said. “If you’re hiring experts (to tell you), get a money-back guarantee. They can’t give it.”
While Loble hasn’t read the proposed CSKT compact, he reviewed nine other federal or Indian reserved water rights compacts with Montana – and more than 40,000 state law-based water rights – during his 23 years on the bench.
His history lesson on the adjudication process began with what’s known as the Winters Doctrine, a 1908 Supreme Court decision that found that when the U.S. government negotiated treaties with Indian tribes, it had to have intended to reserve enough water to serve the purposes for which their reservations were created.
“Reserved water rights were established by reference to the purpose of the reservation, rather than to actual present use of water,” Loble said.
Montana might have avoided a lot of water disputes, Loble said, had the state Legislature enacted a centralized record-keeping system early on, as Wyoming did.
But, despite repeated attempts over the years to do so beginning in 1903, the Legislature shot them all down. Opponents, Loble said, “Feared a state bureaucracy.” Instead, it was left to Montana counties.
There were 16 counties in 1889, when Montana joined the union, 24 by 1900, 50 by 1919 and the 56 we have today by 1925. Records were poorly kept, sometimes lost when counties split into new counties – and, Loble noted, sometimes courthouses burned and all the records were lost.
Sorting out water rights has been the state’s goal since 1979, when the Montana Water Rights Compact Commission was created by the Legislature.
Doing so “inherently involves competing interests in a scarce resource,” Loble said.
He encouraged the crowd to “Read the compact from a practical view – will it work for you? Are there modifications to make it better?”
Whether a compact moves forward or water rights wind up in court, Loble told them, “You will live with the long-term consequences.”