Note:  Here’s another letter to the editor submitted this week.  It’s 1200 words, typically more than the paper allows, but the message is very important to share with others, particularly those who have bought into the compact commission talking points about costly litigation.  Adjudication is a much different process than they would like you to think it is.  Letter submitted by Jerry Laskody, local rancher.  It will be interesting to see if the newspapers print it in its entirety.

PDF Version:  https://westernmtwaterrights.files.wordpress.com/2013/02/spreading-the-fear-of-water-rights-litigation-and-other-fables-4.pdf

SPREADING THE FEAR OF WATER RIGHTS LITIGATION AND OTHER FABLES

In the January 30 edition of the Valley Journal, a letter to the editor quoted the cost of potential water rights litigation of $600 /acre for legal fees, implying this would be the cost of litigation for each individual irrigator. In the February 6th edition, in another letter to the editor, someone again quoted this $600/acre litigation cost.  These numbers presumably were derived from a number $60 Million for the Wyoming’s Wind River adjudication, a number put forth by the Flathead Joint Board of Control. But is this factual or is this a canard?

Here’s some background on the Wind River adjudication. The average annual surface water flow of the Wind River, without storage, is 1.2 million acre feet The Tribes were awarded 500,000 acre feet, the state non-Indian water users 500,000 also.  The exact amount for the federal government’s reserved water rights not part of the Indian reservation, is estimated as the ‘balance’ of water left over, or ~200,000-350,000 acre feet. There are numerous federal reservoirs on the reservation that store a combined total of approximately 450,000 acre feet; part of that water is allocated to the irrigation projects on the reservation and the rest is sold downstream to other water users.  The Wind River becomes the Big Horn River below the reservation, and flows into the Yellowstone River, which then is used to fulfill part of the Crow Tribe’s water right.

What everyone should be aware of is that the majority of the Wind River litigation costs were borne by the State of Wyoming, the Tribes, and federal government. It was a three phase process; the first phase quantified the Tribes water right, the second phase quantified the US right and the final phase quantified the non-Tribal right. Further, this adjudication was taken to the US. Supreme Court so that added to the total cost but again these were government borne costs, ultimately paid for by all taxpayers.   After searching the internet, I can’t find any documented reference for the Wind River Adjudication costs by the State, the Tribe and the feds. I’m sure the data must exist but I have been unable to find it. I don’t know that anybody can substantiate that $60 million number. If they can please provide it and a breakdown of what the specific costs were for the non tribal irrigators I would like to see it. For all we know the total irrigators cost was a $1000! The point I’m trying to make is that it is unlikely that irrigators  affected by the Wind River Adjudication were burdened with great out of pocket legal fees as some people would like you to believe so that you will be afraid to stand up to this terrible agreement.

It is further interesting to note that while the Tribes in the Wind River Adjudication were given 500,000 acre feet of water, Tribal members had to sue their own tribal government to ensure that their irrigation water remained with the land!

In  the a February 6th letter to the editor, the author  states that the low cost block of power would go away at a loss of $325,000/year or $2.50 per project acre (@ 130, 000 Project acres). Put into perspective, Agriculture in Lake County alone puts ~$80 Million/year (projected estimate from Ag Census of 2007) into the local economy, and even though all 130,000 project acres are not in Lake County, using that as a base, that’s $615/acre gross ag income. So this loss of low cost power is a fraction of one percent (0.4%) of the average income per acre. And to get this $2.50/acre, we have to give up a bunch of water that will reduce our productivity and reduce that $80 Million in agricultural production. I don’t know about the author’s  business model, but from my point of view, halving my water allocation to save  0.4% in gross income seems like a poor business decision to me.

We hear about the millions of dollars of repair to the irrigation system that will come to the Project if we approve the Water Use Agreement. We should be getting the project rehabilitated by the US for the many years of neglect by the BIA, regardless of the outcome of the compact. In fact, rehabilitation money should have been part of the 2010 transfer agreement!  BIA transferred a broken down system to the irrigators! What did they do with our O&M funds? Now the US is supporting this compact with a promise of money to fix what they should have been fixing with our O&M money all along. Further, there is no guarantee that we will see any of this money, and even if it received, all the water saved goes for fish and none for irrigation. Why would the irrigators support this?

The latest version of the compact has some  words in it that tries to convince irrigators that they can get up to 2 acre feet/acre if they meet some as yet undefined conditions and subject to a review in 10 years with the review criteria undefined.  In the February 4th FJBC irrigators meeting in Mission, I asked Jon Metropolous  the FJBC’s counsel, if 2ac ft /acre were available did this mean that the total project water allocation moved from 182,000 ac ft to 260, 000 ac ft on the basis of 2 ac-ft/acre x 130,000 project  acres.? Jon replied “NO”.  I said why not. And he said “Because not all irrigators would be eligible!” Duh! You can get more water by meeting some undefined conditions subject to a 10 year review with undefined criteria but not all of the irrigators would be eligible. What a deal!

In the case before us here in Montana, the CSKT has claimed all the water and has proposed to allocate only 11% of historically used water, or approximately 182,000 acre feet (1.4 acre feet/acre x 130,000 acres back to the irrigation project. The CSKT will hold the water right and grant the irrigators a “right to receive water”, up to 1.4 ac-ft /acre maximum   Since our property has a Walton Right for our irrigation water with a double duty allocation and a July 1855 priority date, I am wondering how my historic use is being protected by this compact. I have provided the FJBC data from our ranch (and presumably they have provided that data to Compact Commission) on plant water usage (transpiration) and measured water application proving that I am beneficially using my double duty water.  The present compact proposal allows me approximately 1 ac foot/ac of water against my double duty usage of 2 ac ft/ac. What’s wrong with this picture? Maybe, just maybe, I might be able to get the 2 ac ft/ac that I need but I sure can’t tell from the proposed agreement. With all the other maybes in agriculture I certainly don’t need another one.

And in the words of Mr. Chris Tweeten, Chairman of the Reserved Water Rights Compact Commission “….historic usage is being protected”.

Yeah right! I can hardly stand all these great benefits and all this protection of my historic usage found in this proposed compact.

I think I’ll take my chances in Water Court!

Jerry Laskody

St. Ignatius, MT

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