© 2013 Concerned Citizens of Western Montana

Analysis of the FIP Agreement

With the failure of the CSKT Compact in the Montana Legislature, we believe that the FIP agreement has also failed.  There are several reasons for this conclusion:

  1. The fundamental basis of the FIP agreement was that the CSKT owned all the water in the Flathead Irrigation Project, and could therefore dictate the terms of how much water irrigators could have to water their crops and livestock. This is a flawed assumption and can be disproven—and was—by the existence of water rights permits filings and land patents issued to irrigators since 1900. While this assumption of total tribal ownership of all the water was never stated directly, it can be found in two sections of the failed Compact and in an Flathead Joint Board of Control Newsletter from 2003:
    1. The definition of the reservation which states that the ‘reservation’ means “all the land within the exterior boundaries of the Flathead Indian Reservation notwithstanding the issuance of any patent, including rights of way”.  This of course ignores the history of the opening and settlement of this reservation, and the hundreds of recorded and filed patents secured for land and water within the exterior boundaries of the Flathead Indian Reservation
    2. The definition of “Compact Water” in the Compact, which claims, among other waters, all of the water in the Flathead Irrigation Project.  It is this water that the Tribes claimed that they owned in the FIP Water Use Agreement (FIP Agreement).  The  actual ‘negotiations’ between the CSKT, United States, and Flathead Joint Board of Control was over how much water the Tribes were going to let the irrigators use
    3. A 2003 newsletter of the Flathead Joint Board of control contained this statement:  In November 2001 the CS&KT presented to the State a proposal for quantifying their water. They asked the State to grant that the Tribes own ALL the water on and around the reservation. They also want the right to administer the use of all the water (to be able to say who can use it).This is in direct conflict with Montana Law, its Constitution and all federal law. The U. S. Supreme Court has clearly given the states the responsibility to determine how much water was reserved for Indians on the reservations within their borders. The Tribes have refused to drop their proposal and allow negotiations to continue. They claim the State just needs to recognize that the Tribes actually own all the water, then it can have a deal.
    4. Statements of the Compact Commission itself that the Compact could go through without the FIP Agreement, or with an alternative form of agreement.  We have documented, recorded evidence that the Compact Commission has stated the FIP agreement is irrelevant to the Compact bill, because it is a private agreement.  The FJBC’s attorney, Jon Metropolis also confirmed that the Compact would go forward without the FIP agreement.  The Compact was introduced as HB 629 in the Montana Legislature without the FIP agreement, and without any ‘conditions’ that the Compact would be void without it.

The statements of the Flathead Joint Board of Control’s own attorney, Jon Metropoulos, confirm the two major assumptions above.  First, on more than one occasion Mr. Metropoulos has told his clients—the irrigation community—that “you [the irrigator] never owned the water rights in the first place”.  Secondly, Mr. Metropoulos told his clients that “if we don’t have an agreement, one will be forced upon us”.  The Compact Commission’s ‘work around’ the FIP water use agreement was simply for the Tribes to implement the Unitary Management Ordinance, itself based on the Tribes’ ownership of all the water on the reservation.  Under that scenario, the Tribes would have been under no obligation (i.e., FIP water use agreement) to deliver any of ‘their’ water to the irrigators.

What Happens to the FIP Water Use Agreement if the Compact Commission is Extended?

There is no guarantee that the Compact Commission will be extended.  First, the Tribes have indicated that there will be no more negotiations and that they will return to Court to adjudicate their water rights.  Second, and perhaps more importantly, the Compact failed because of its bad assumptions, not because of the failure to include the FIP agreement, although the litigation of the FIP agreement was certainly a part of the Compact’s failure. Among those assumptions were:

  1. The Tribes own all the water on the reservation
  2. The Tribes have exclusive water administration and management authority over all water users on the reservation, thus the State would relinquish its authority and responsibility to protect and administer state-based water uses
  3. The Tribes claim of off-reservation water rights as part of a federal reserved water rights negotiation

It is unlikely that the State will agree to these assumptions again, as the Montana Legislature made it clear they are unacceptable and ‘non-starters’ as far as protecting state-based water users is concerned.  It is also unlikely that the Tribes will move away from these assumptions and therefore there will be nothing to negotiate.  In a court of law adjudicating the Tribes’ water rights, they will not be able to prove they own all the water. Finally there is 100% solid proof that the irrigators have individual water rights appurtenant to their property.  No property right can be taken without just compensation.

Summary

There is no need to continue any negotiation on this FIP water use agreement because it is based on false assumptions.  Since the Compact is dead, the FIP water use agreement is also dead.  No board vote or irrigator vote will make any difference to failed water Compact.

It is time to band together and protect the irrigation community’s bona fide water rights and to secure a future for irrigated agriculture on the Flathead Indian Reservation.

The FIP water use agreement involving the taking of hundreds of irrigator’s water rights on the Flathead Irrigation Project is no longer viable, valid, or necessary.

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