© 2013 Concerned Citizens of Western Montana
On Tuesday, April 9, 2013, the Montana Supreme Court finally issued its written opinion on voiding the two writs of mandamus issued against the Flathead Joint Board of Control. The opinion is a huge victory for irrigators.
Yes, a victory for irrigators because the Montana Supreme Court refused to overturn McNeill’s finding that the FIP Water Use Agreement is an unconstitutional taking without compensation of irrigator’s water rights. While the FJBC may not now need a vote of the irrigators, the issue of a vote is again moot because the FIP Water Use Agreement is still unconstitutional.
There are several individuals who continue to beat that dead horse insisting that a vote can be taken, or even that the Compact is now valid because of the Montana Supreme Court’s decision. The Flathead Joint Board of Control still believes that the FIP water use agreement is fine, and are still pushing it. We know that political games were played when a decision was issued without the accompanying opinion to allow Representatives Kathleen Williams and Dan Salomon state, on the House Floor, that “the Montana Supreme Court voided the unconstitutionality of the FIP!”…in a desperate attempt to blast motion HB 629 (the Compact) out to the floor. These two Compact Commissioners still do not understand the danger that the CSKT Compact proposed to the citizens of Montana and to the irrigators in the Flathead Irrigation Project.
In reviewing the FIP water use agreement negotiations, the major premise of the ‘negotiations’ was that the CSKT owns all the water and that it had the right to decide how much water to give back to the irrigators. Section III of the Compact, “quantification” states clearly that the Tribes have the right to all the water in the FIP irrigation project. The Flathead Joint Board of Control accepted that assumption and proceeded to work out a private agreement where the FJBC essentially gave away their constituents water rights, replacing a water right with a ‘right to receive water’. The ‘red herring’ was the argument over 1.4 acre feet per acre vs. 2.0 acre feet per acre: the true measure of the irrigator’s bona fide water rights is their existing beneficial use, whatever that number is.
Would the posture of the Flathead Joint Board of Control if the Compact negotiations continue be based on the same flawed assumption, that the Tribes own all the water? If it is, then expect the FJBC to continue to try to find a way to give away irrigators’ water rights. Concerned Citizens believes this is unacceptable.
What if the Compact Commission is Extended?
Senator Verdell Jackson submitted SB 265 that would extend the Compact Commission for another two years. No negotiations would occur unless the CSKT agreed to participate. Concerned Citizens believes that the only way that negotiations would also protect state water users is if the Tribes agreed to drop the major assumptions that led to the failed 2013 Compact: that is, (a) the tribes own all the water, (b) the tribes can manage all water users, and (c) that off-reservation water is appropriate for a federal reserved rights water compact.
If these assumptions are dropped, Concerned Citizens believes that the irrigation community would not necessarily have to be involved in any negotiations, because those negotiations would not be focused on taking other people’s water rights. Since the irrigator’s water is not part of the Tribes’ water right, the Tribes and the United States would have to treat the irrigation community as legitimate water users with legitimate rights.
Concerned Citizens believes that the only parties to a future negotiation would be the State, the United States, and the CSKT. The focus would be the Tribes’ water rights, not the irrigators.
Could the irrigation community negotiate with the Tribes? Of course. But it would be on equal footing as equal water rights holders. Remember that most of the irrigators in the Flathead Irrigation Project already have 1855 priority dates.
Next up: the adjudication process.
Reference these earlier blog articles for additional information:
Supreme Court Links: http://supremecourtdocket.mt.gov/search/case?case=15985
What Happens Now With the FIP Water Use Agreement?
Five Reasons to Reject the Proposed Compact