© 2013 Concerned Citizens of Western Montana

On Wednesday June 19, 2013, a special meeting of the Flathead Joint Board of Control was called because Duane Mecham from the Federal negotiating team wanted to address the board concerning the project outlook with and without the Water Use Agreement.

This meeting was a follow up to their two recent “threat” letters concerning what might happen to instream flows considering the failure of the compact and the water use agreement:    Letter 1     Letter 2

Mr. Mecham opened by stating that he wanted the board to get up to speed on substantive issues and to provide information that might be helpful in deliberations, including the federal position on the Water Use Agreement, federal activities on the reservation if there’s not an agreement,  and federal “obligations” that need to go forward on instream flows that could affect the project.

He also mentioned that the federal team anticipates providing information and comments to the compact commission in response to the commission’s request for feedback to help the commission prepare their report for the governor.

Mecham said the feds are taking a very pragmatic view of this compact, and that they have extensive experience with these water rights settlements.  These settlements have glitches that often require additional information to result in agreement or buy-in.  He then went on to say that they had reached many, many, many tribal water rights settlements in the west and

in every instance we have accomplished a water rights settlement where the non-Indian water users are kept whole, and I can say having experienced work on these for more than 40 years that not a drop of water has been involuntarily relinquished by the non-Indian water community.

Concerning the Water Use Agreement (WUA) Mr. Mecham stated there is no official federal position on it because of the process required to do that, but said federal officials agree the WUA and Compact is considered to be a good solution to resolve irrigation issues, and they could support them.

He then delved into the other federal responsibilities that they’ve had to “put off” while these negotiations were taking place including 1) instream flow and 2) the irrigation project is federal and must comply with the Endangered Species Act (do the words Bull trout come to mind?).

After giving us historical information concerning the tribe’s aggressive litigation strategy in the 80’s and 90’s , and the fact that the 9th circuit court mandated instream flows on the irrigation project, he mentioned that the current flows are “significantly inadequate”, and because of the feds “responsibilities”, and in the absence of a “negotiated pathway”,  there will be an “independent review” to see if these flows should be increased on a new interim basis.  This analysis would be done over the summer and into the fall, and a decision would be made before the next irrigation season.

Also looming on the horizon for the project is the Endangered Species Act where more water is needed for the fish.  SURPRISE!  Mecham went on to convey it’s a substantive act with solid hammers that the board really needs to understand. They could see a new round of complaints re the ESA for the project, including the fact that environmental groups often challenge these issues, and should be aware that FWP has delayed using their hammer because of the ongoing negotiations.  ARE WE TELLING YOU ANYTHING YOU DIDN’T ALREADY KNOW?

Mecham also said there are three categories of comments the feds will provide to the governor / compact commission:

    • Off reservation component
    • Unitary Management Ordinance
    • the Flathead Project WUA, particularly ” HOW THE WATER RIGHT IS HELD”.

Concerning the irrigation project water right, there are different components including the FEDERAL – IRRIGATOR – DISTRICT component, and it was conveyed that other compacts offered a different solution (remember, this agreement asks all parties to relinquish the right to the tribe).

One of the commissioners asked why is a water use agreement necessary if the feds were going to use the ESA hammer.  Great question by the way, that was not sufficiently answered.

Someone in the audience asked about the tribe’s settlement money, and if it was multi billion, and Mecham would not confirm that.  He mentioned there are 3 components that will be considered for the settlement, and that it was possible they do in fact add up to be more than $2 billion.  Components of the settlement would include:

    • Did the United States properly protect the tribe’s water right?
    • How much compromise was made by the tribe in the negotiation?
    • Litigation savings should be used to develop the tribe’s water right?

The issue of the CME board was brought up, and the unbalanced representation in it.  The federal team commented that the CME was the result of a negotiated agreement, and at the time, the FJBC was fine with it.  This brought about a discussion on whether the federal government just rubber stamps agreements no matter how bad they are, and the answer to that appeared to be “yes”, because if the parties agree to it, then the feds are generally fine with it.

Why not? After all if one party is willing to concede more than they should to the federal government, why not take it?

So the message we heard from the meeting is this:

PROPONENTS OF THE COMPACT AND WATER USE AGREEMENT WAKE UP.  YOUR WILLINGNESS TO RELINQUISH YOUR OWN AND YOUR NEIGHBORS WATER RIGHTS MIGHT ALL BE FOR NAUGHT. 

OPPONENTS OF THE COMPACT, THE SUBSTANTIVE ISSUES YOU’VE RAISED ABOUT THESE SO CALLED “FAIRLY NEGOTIATED AGREEMENTS” MEAN LITTLE IF ANYTHING TO THE BIG AND ALL POWERFUL FEDERAL GOVERNMENT.

MR. MECHAM SPOKE CLEARLY, AND WITH VERY TIGHTLY CLENCHED HANDS HELD CLOSE TO HIS CHEST. 

IRRESPECTIVE OF THE WUA AGREEMENT AND COMPACT, THE FEDERAL GOVERNMENT CAN AND IS WILLING TO PLAY THEIR BULL TROUT TRUMP CARD. 

THE ENDANGERED SPECIES ACT, ENVIRONMENTALISTS, AND THE FULL FORCE OF THE FEDERAL GOVERNMENT ARE CHOMPING AT THE BIT TO STEP OUT FROM BEHIND THE CURTAINS TO REVEAL THEMSELVES.

The feds really want to control our water badly.  Why might that be?

The good news is this.  All of this effort on their part indicates that Concerned Citizens and the WMWUA have raised the right issues and if the feds were not worried about them they would not be responding as they are.  There is no evidence that instream flows are inadequate.  This is merely a scare tactic, no different than the threats of litigation made by the compact commission.

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