©2013 Concerned Citizens of Western Montana
After the successful legal action to prevent the old Flathead Joint Board of Control (FJBC) from passing the Irrigator Water Use Agreement against the wishes of their constituents, and the failure of the Montana Supreme Court to overturn Judge C.B. McNeils ruling that the water use agreement constituted an “unconstitutional taking without compensation”, the Compact Commission moved quickly to distance itself from this flawed water use agreement insisting both in the legislative hearings and the June meeting of the Water Policy Interim Committee that the Compact could be passed without it. They have also said on multiple occasions that if necessary, they would look into “alternatives” to this agreement.
However, it was always known that the Compact Commission would do what it could do to get what it wants– the complete turnover of all of western Montana’s water resources to the federal government, “in trust for the CSKT”. As part of this plan, the Compact Commission was happy to accommodate what the Tribes wanted–which was complete takeover of the irrigation water rights to use for “instream flow”, and the control over those water rights via the Unitary Management Ordinance to completely control the kinds of crops irrigators can grow and amount of water they can use.
As has been documented here, the CSKT have been told in no uncertain terms that they do not control the irrigation project and do not own the water within it, so of course they tried the next best thing which was to get the Compact Commission to include this theft in the Compact.
So the next strategy the Compact Commission supported was the break up of the Flathead Joint Board of Control, and to peel off the irrigation districts individually so they could sign the irrigation water use agreement and give the “appearance” of irrigator support for the unconstitutional taking so the Governor would call a special session of the legislature to approve this Compact. Working through some local vocal compact proponents who are well-known to these pages, this strategy was enacted with the full blessing and probable support of the Compact Commission.
Well, the Flathead Joint Board of Control did indeed dissolve on December 12, 2013–the very day the Compact Commission released its report that says incorrectly that the Montana Supreme Court overruled the unconstitutionality of the water use agreement.¹ But the Commission and those irrigators who would give away their neighbor’s water rights failed to take into account:
- An injunction is still in place on both of the rogue irrigation districts (Mission and Jocko Valley) that prevents them from signing the unconstitutional irrigator water use agreement;
- Three of the four rogue commissioners of these districts are being recalled which will be effective right after the first of the year.
And, by breaking up the FJBC, they killed their opportunity for any other entity to sign onto this flawed water use agreement, in particular, the Cooperative Management Entity that was created through Transfer Agreement to manage the operations and maintenance of the Flathead Irrigation Project.
Killing the Goose That Laid the Golden Egg
The Flathead Joint Board of Control is the primary signatory on the document that provides for the operation and management of the irrigation project by the irrigators and the Tribes: the Transfer Agreement created pursuant to federal law, creating the Cooperative Management Entity formed pursuant to state law. With no Flathead Joint Board of Control, neither the Transfer Agreement nor the Cooperative Management Entity now exist.
That did not prevent the two rogue irrigation district commissioners, and their law firm, to try and continue with ‘business as usual’ and replace the duly appointed members of the Cooperative Management Entity (CME) with their own representatives so they could use the CME as a vehicle to pass the water use agreement in irrigation district meetings on Friday December 20.
But the problem is, the Secretary of Interior, the Attorney General of Montana, and the Montana Secretary of State have now been officially notified that the Flathead Joint Board of Control no longer exists and that both the Transfer Agreement and Cooperative Management Entity no longer exist. Please take a look at these letters. Millions of dollars, property, and trust assets are at stake.
What they wanted was the destruction of irrigator unity. They’ve done that pretty well. But it hasn’t served them because now nothing can be done to move the unconstitutional water use agreement forward no matter how much the Compact Commission and their agents in the field gloat about destroying the irrigation community.
It has been a disturbing feature of this whole Compact process that the means to get a compact has been to destroy communities, divide families, and invoke “race” as a tool. If it was such a good compact, these things would not be necessary.1. The Governor’s report states that the Montana Supreme Court overturned Judge C.B. McNeil’s finding that the irrigator water use agreement was an unconstitutional taking of property rights without compensation. However, the MT Supreme Court said only that this provision of McNeil’s ruling was not argued in court pleadings. The Supreme Court could not say anything about that finding. The unconstitutional taking without compensation is a feature of the irrigator water use agreement and is plain to see, regardless of the wordsmithing done in the Governor’s report. See McNeil’s ruling here, and see the MT Supreme Court ruling here.