©2013 Concerned Citizens of Western Montana

Yesterday the Flathead Joint Board of Control took a major step toward protecting the water rights of its constituents.  Recognizing their fiduciary responsibility to project irrigators, they passed the following resolution:

“Resolved that the FJBC, by and through its Chairman, directing its legal counsel, is authorized and directed to take all available legal steps to amend its claims to clarify its ownership of said claims as a fiduciary on behalf of fee land owners, to clarify all aspects of those property rights, including priority dates, and to secure, protect, defend, and prevent such property rights from any relinquishments or compromise in contravention of its fiduciary duty, including, but not limited to, amending those claims in administrative and judicial institutions.” (emphasis added)

See full resolution here.

This action sends a clear message that no “administrative institutions”–i.e., the proposed CSKT/Compact Commission’s “irrigator Water Use Agreement”,  will be allowed to take the water rights of irrigators.  It also states that no separation of irrigation districts from the Flathead Joint Board of Control (FJBC)–i.e., the Mission and Jocko “judicial” separation–will be able to sign any agreement that relinquishes or compromises the water rights of individual irrigators.

We applaud their action and are appreciative of these efforts.  We also say it’s about darn time someone starting supporting irrigators.

The May 2013 FJBC elections paved the way for this resolution, which reversed a years-long effort to give away irrigator water rights to the CSKT, unknown to irrigators, and has been a long time coming.  For just a year earlier, in May 2012, the proposed water use agreement–which relinquishes irrigation water rights–was introduced.

The introduction of  this proposed water use agreement  served to awaken irrigators to the fact that the board that they had placed their trust in, and their “water consultant,” had strayed far away from their responsibility to protect irrigator’s valuable water and property rights.

The agreement not only proposed to reduce and limit the amount of water irrigators would receive, if approved, it agreed to relinquish all project water rights to the CSKT.  During the rollout of the document, then consultant Alan Mikkelsen conveyed this agreement as the best irrigators would be able to do, stating that the water allocation was non-negotiable.  At the time, nothing was said to the irrigators about the relinquishment of their water rights to the CSKT.

As the months went by, it became clear that the more irrigators opposed the flawed water use agreement document, the more the 2012 JBC commissioners dug in their heels in support of it.  A group of irrigators quickly organized and sued to prevent the approval of this agreement.  In February 2013, district court Judge C.B. McNeil ruled the water use agreement to be an unconstitutional taking without compensation.  As a result of this ruling, the Compact Commission was unable to include this  water use agreement in the proposed CSKT Compact submitted to the legislature.  The Montana Supreme Court did not overturn this provision of Judge McNeil’s ruling.

In May 2013, the irrigators spoke and voted to replace two commissioners on the board, resulting in a majority that no longer supported the agreement as it was written.  Since then, compact supporters that remained on the board have pulled out every trick possible in a blatant attempt to force this same bad agreement on their constituents, including their recent efforts to take down the joint board of control against the will of the irrigators they are supposed to represent.

The blatant objective of the Mission and Jocko irrigation districts in breaking away from the Flathead Joint Board of Control was to basically sign the Compact’s water use agreement.  But as a result of an injunction slapped on these two districts this past summer, they are still unable to sign this irrigator water use agreement.  And the irrigator water use agreement is still an unconstitutional taking of water rights without compensation.

The Compact Commission still believes it is “protecting irrigators” with an agreement that gives away their water rights.  It is language intended to confuse and to lull people into thinking everything is just fine, but once you find out about the details, it is nothing more than an attempt to take water in an administrative forum that could not be taken legally.  It’s kind of like what we’ve all heard recently…

If you like your water right, you can keep it. Period.

The Flathead Joint Board of Control’s resolution and memorandum submitted to the Water Court will go down in history as a major tool through which to preserve individual irrigator water rights, including those of Tribal irrigators, against neighbors and governments trying to give or take them away.

Good job, FJBC!