© 2013 Concerned Citizens of Western Montana

What is it they say about telling a lie big enough and often enough that people eventually believe it?

Revealing the truth sometimes means removing the layers of the onion, one at a time.  It’s only as these truths are revealed, that we are able to step out of the box and away from the framework of debate created by compact negotiators, the joint board of control, and even the Western Montana Water Users Association.  So let’s begin removing layers by asking some important questions about the Flathead Irrigation Project Water Use Agreement (FIPWUA):

  • Is it possible the irrigation project Water Use Agreement was merely a distraction or a red herring for irrigators?
  • Assuming this agreement can be stopped in the courts, will irrigator interests still be at risk?
  • Does the water compact give the CSKT ownership and control of the farmers water without a water use agreement?

We say the answer to these questions is a resounding YES.

The water use agreement is the subject of a lawsuit by the Western Montana Water Users Association, and has been a hotly debated and contested document since it was introduced to the public last May.   For the last 10 months, the irrigation community has been tied up in knots debating an agreement built upon the assumption the tribe owns all the water in the irrigation project.  If approved, this so called “private agreement” between the Flathead Joint Board of Control (FJBC), the United States and the CSKT, would force “relinquishment” of project water rights to the tribe in exchange for an insufficient allotment of water.  Much of the focus on this agreement has been upon the adequacy of the 1.4 acre foot per acre allotment, and not whether the tribe owns all the water.

The negotiating parties tell the public that the agreement is an important piece of irrigator protections, but the reality is that it was designed to get the farmers to agree to accept a maximum, but unguaranteed amount of water meted out from what will become the tribe’s water. It also forces irrigators to agree to withdraw their project water claims from the state water court, forever giving up their right to challenge the these rights in the courts.

Since this document’s introduction to the public in May 2012, powerful forces within the joint board and external to it have been at work to force the water use agreement through.  The Western Montana Water Users Association quickly organized and retained an attorney to fight the unconstitutional taking of valuable water and property rights included in this document.  Judge C.B. McNeil agreed, and issued a decision on 02/14/13 that agreed with their position.  It doesn’t appear that this issue will be resolved any time soon, and this lawsuit continues to slowly work its way through the courts.

So with all attention focused on one aspect of the compact, we have to ask, what happens if the Water Use Agreement is killed through the legal action taken? Will this be a great victory for farmers and will their water rights be saved?

The answer is NO.

ENTER THE CSKT COMPACT
The danger of such a narrow focus on merely one piece of the compact, the Water Use Agreement, is that you fail to see the bigger picture: THE COMPACT.  While all attention was paid to the FIPWUA, the compact commission backed off of this document, and submitted the CSKT compact to the legislature without it.  In public meetings, they’ve also discussed “alternatives” to the FIP Agreement.  Alternatives could be a different agreement, something in between, or dropping the water use agreement altogether to let the farmers duke it out with the tribes in court.

Because the commission has made it clear that the compact can move forward without it, we must conclude the FIPWUA is irrelevant, and should be removed from the discussion, to allow the public to focus on the COMPACT. Ater all, it’s the compact that gives away the project water rights to the tribe, not the water use agreement.

Article III of the CSKT Water Compact states: “The Tribes have the right to water that is supplied to the Flathead Indian Irrigation Project to be used for such purposes in such volumes and flow rates and from such sources of supply as identified in abstracts of water right attached hereto as Appendix 5 to this Compact.”

This means that the compact and the abstracts included in it will give the tribe rights to all the water in the irrigation project, 11% allocated to irrigation, 89% to time immemorial instream flows.  Remember, the FIPWUA only serves to determine how much of the tribal water will be meted out to farmers and does not determine who owns the water rights.  That is done in the compact.

THE UNITARY MANAGEMENT ORDINANCE
In addition to the compact relinquishment of water rights, the stage has also been set for the control of ALL the water within reservation boundaries, including irrigation water.  The Unitary Management Ordinance was intended and is designed to be tribal jurisdiction over all the water on the reservation under the guise of a law that attempts to “mirror” Montana Water Code.  Irrigators and other water users will no longer have access to the Montana Water Court, but instead will have to appeal to Federal District Court if unsatisfied with decisions of the Unitary Management Board created by this document.

Its purpose?  To establish the processes applicable to all surface and Groundwater use within the exterior boundaries of the Flathead Indian Reservation.” 

It goes on to say:  As set forth in the Compact, the Board shall also have exclusive jurisdiction, subject to the right of appeal set forth in Section 1-2-108 of this Ordinance, to resolve any controversy over the meaning and interpretation of the Stipulation between or among the parties to the Stipulation on the one hand and the holder or holders of Appropriation Rights and Existing Uses on the Reservation on the other.” 

SO WE ASK THE QUESTION, WHERE IS THE REAL DANGER FOR IRRIGATORS, IN THE COMPACT AND THE UNITARY MANAGEMENT ORDINANCE, OR THE FIP WATER USE AGREEMENT?

It’s time to move the debate away from the water use agreement and to pay attention to the Compact and the Unitary Management Ordinance. This is where the real threat lies concerning the ownership of water and its management within reservation boundaries.

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