©2014 Concerned Citizens of Western Montana

In Part I of this series, we presented an overview of Concerned Citizens’ assessment of the Governor’s Report on the Proposed CSKT Compact produced on December 13, 2013 after seven months of ‘study’. During this time that the Compact Commission was supposed to be writing its report, it instead did the following:

  • conducted over one dozen private meetings, sponsored by local residents well known to these pages who thought it was a good idea to ‘control the audience’ by inviting state employees to private meetings;
  • held a number of other meetings for various organizations around western Montana plugging the same old document while ‘trying out’ new, refined talking points
  • Waited for and possibly participated in the break-up of the irrigation districts on the Flathead Reservation, hoping that the two break-away districts would be able to sign the flawed irrigator water use agreement and give the Commission “momentum”–however false it would be–to rally support for the Compact,

When this last action failed miserably, they finally produced a report which they presented to the Water Policy Interim Committee (WPIC) on January 6, 2014.¹

Unfortunately the report failed to answer the numerous questions raised by the public and instead ‘doubled down’ on the talking points that the Commission has used for almost two years now. As a result, the Compact is no closer to receiving broad public support than it was a year ago.  We cited several areas in which the Governor’s report failed:

  • Status of Compact Studies
  • The Governor’s Report does not Reflect the Language in the Compact Documents
  • The Report Contains Numerous Misstatements and Errors by Omission,
  • Environmental, Economic, and Regulatory Review Required

Let’s take a quick look at the status of the Compact studies.

Status of Compact Studies

The Governor’s letter vetoing Senator Jackson’s bill lamented that no one acknowledged the extensive technical work of the Commission over the last decade.  However, our review indicates that the bulk of the technical studies completed for key portions of the Compact were undertaken within the last three years of ‘negotiation’ and completed in late 2011.  Indeed, the Bureau of Reclamation’s depletion study on the Flathead River was released in September 2012. In addition, the State’s review of these studies as shown by its own correspondence² pointed out that these studies remained at the planning level and were not suitable for year to year or even day to day uses.

Examples of these ‘planning level’ studies included:

  • Analysis of the amount of water produced for instream flow resulting from rehabilitation of the irrigation project–a modeling study that was built on estimates and not real data
  • “Robust river” instream flow studies

Such studies are the “technical legs” underpinning key components of the Compact, including the irrigator water use agreement, where money for the rehabilitation of the irrigation project is promised (not secured) as long as (a) the irrigators relinquish their water rights to the Tribes and (b) the ‘saved’ water would be made available for instream flow. The economic livelihood of thousands is at stake here–would planning level studies that couldn’t be used on a day to day or year to year basis be good enough for them?

The ‘robust river’ instream flow standards are proposed to use all of those relinquished irrigator water rights to “support fish”.  The problem of course with a robust river standard is that it is physically a flood situation–bank-full flow–which does not occur 100% of the time in nature.  And what would a bank full flood flow condition do to stream banks and bed stability, erosion, and fish survival?

So, after ten years of negotiation and a lot of” hard work”, such critical science is left at the planning stage?

Another area in which key elements of the Compact are left in an incomplete form is the proposed Unitary Management Ordinance.  As late as January 2010, the Compact Commission itself was not convinced that such a new administration system was necessary:

The State does not agree that the land ownership and water supply patterns on the Reservation are qualitatively different than the complexities faced in other water compact negotiations that the State has successfully concluded.  Consequently the state does not agree that the dual sovereign management system adopted in all of our prior tribal-state compacts (where the tribe, through its water resources department and pursuant to its own water code, administers tribal water sources and the State, through DNRC and pursuant to Montana law, administers state law-based water rights, disputes between the two systems to be resolved by reference to a Compact Board) is unworkable on the Reservation…  Some of the features of the Tribes’ discussion paper appear to the state to describe a dual rather than a unitary management system.³

As the astute reader of the Compact Documents knows, some portions of the Unitary Management Ordinance remain in a form that is “to be determined at a later date”. Other sections refer to the irrigator water use agreement, which was not included in the February 2013 version of the Compact or the Compact bill (H.B. 629) that was submitted to the legislature in March 2013.

So, the Compact Commission is recommending to the legislature that it remove 28,000 citizens from the protection of the Constitution and laws of Montana and put them under a system that is still “to be determined’?

The Compact Commission Chair referred to this new administration proposal as ‘the grand bargain’.  Who benefits from this ‘grand bargain’?

¹Recall that at the last minute, Compact Commission members and so called ‘responsible republicans’ Senator Dick Barrett (“D”) and Representative Dan Salomon (“R”) rushed around behind the scenes to twist arms persuade unsuspecting and unaware County Commissioners to support the Compact without nary a blink of an eye.  Those letters of support underwhelmed the WPIC and the public, who stood for nearly seven hours presenting key information that the Commission had ignored in its “decade of negotiation”.
²Memorandum from Bill Shultz to Clayton Matt, October 25, 2010, “Review of Hydross Model Jocko and Mission Baseline Condition”
³January 19, 2010  Letter from Commission Chair Tweeten to Bud Moran, Tribal Chair, and Duane Mecham, Federal Negotiation Team, “Montana’s Response to the CSKT Unitary Management Discussion Paper of December 29, 2009”