Note: On Tuesday July 8, 2014, a busload and several car loads of ranchers and water users traveled to Helena to testify against the Unitary Management Ordinance (UMO) that is included in the Flathead Water Compact. Designed and intended to forever replace any state jurisdiction over water within the boundaries of the Flathead Indian Reservation, very serious concerns have been raised over its blatant violation of the equal protection guarantees in the United States and Montana Constitutions. Simply put, if the UMO is passed as part of the compact, non-Indians living within reservation boundaries would be subject to laws that are different from the laws that apply to Montana’s 970,000 other citizens for their water needs.
This “Law of Administration” proposes to create a new board, with two tribal members, two governor appointments and those for would select a fifth member. This board would administer all water needs on the reservation and the state would be forever banished from protecting the water needs of all 28,000 residents residing within the historical boundaries of the reservation. It is not a stretch to realize the CSKT would likely have control over that board and any decision making concerning new uses of water and changes of existing uses. In other words, they would control any and all growth and development within reservation boundaries, including what people can and cannot do with their property.
The compact commission attempted to create a false need for this experimental board stemming from a so called “jurisdictional vacuum” created on the reservation by the Ciotti decision. This was done by using a half truth designed to make legislators and the public believe that that it was a permanent void that needed to be filled with the UMO. The Ciotti decision says that UNTIL THE TRIBE QUANTIFIES THEIR FEDERAL RESERVED WATER RIGHTS, the state cannot issue permits for new water uses or changes in water use. This is far different from the myth of a forever jurisdictional void that must be filled with an experimental system of administration that will be controlled by the tribe.
We have frequently referred to the fact that the compact has been presented as a pass the bill and find out later what is in this “forever” document. Here is an eerily similar situation going on the Klamath with their agreement to resolved their water problems. Perhaps we can learn a lesson from what the Klamath ranchers seem to be learning the hard way. While their agreement is not the same as the UMO, you can see eerie similarities in how the agreement was sold to irrigators by people they trusted.
Here is an article that was in the Western Ag Reporter’s July 3, 2014 edition:
Klamath Water: Some ranchers backing out of agreement
By Erika Bentsen
Several upper basin irrigators, who signed an intent to proceed with the Upper Klamath Basin Comprehensive Agreement, are having second thoughts. The validity of promises made to these upper basin ranchers in order to get their signatures on the bottom line of the Agreement is open to uncertainty.
Among numerous misgivings is a growing concern about the Landowner Entity’s absolute control over private property. In the Agreement, a Landowner Entity — made up of member elected officials — will be established to directly oversee irrigation and riparian improvements on individual properties. The corporate laws of this Landowner Entity are defined in Section 554 of the Oregon Revised Statutes (ORS).
Ranchers believe the language in the laws and the power granted to this new establishment are overreaching and detrimental to their personal property and freedoms. It removes their ability to make their own management decisions, and by the attachment of liens for corporate debt to their property, it may devalue their property values permanently. Many are concerned that — if the corporation is mismanaged or if it proves unable to sustain itself for any reason, such as if government funding isn’t approved for completed projects — the onus falls on landowners, which can lead to bankruptcy and undue hardship.
The devil is definitely in the details. As the new Landowner Entity is being established, some ranchers are digging deeper into the new regulations that are about to affect their land. Furthering their growing doubts, it is now being discovered that some of the ranchers’ own representatives at the settlement talks, some of whom are now in pivotal positions in the burgeoning Landowner Entity, are being paid to promote the Agreement. This is leaving many to question how much truth was told to the public in the informational meetings held prior to the signing deadline and others to wonder whose best interest is actually being represented today.
Repeatedly during the push to get upper basin ranchers’ signatures, proponents were adamant that eminent domain would NOT be used to acquire lands in the Agreement. However, ORS 554.040(4) clearly gives the Landowner Entity the power “To purchase, condemn by the power of eminent domain, possess and dispose of real and personal property as necessary and convenient to carry out the purposes of the corporation.”
Many ranchers voiced concerns that they would be forced to grant easements, especially tribal easements, to their riparian lands. Proponents assured them that would not happen. That it would only involved a small strop of land along the water, around 100 feet or so, but sometimes more. That intrusion onto their land would be minimal, maybe a few visits initially and then probably once every few years. That it’s all voluntary, it’s not a big deal.
Proponents also downplayed the fact that the Landowner Entity is required to have tribal representation on the board. Furthermore, ORS 554.350(b) states that the corporation may “jointly acquire, control and manage any works, improvements, easement, or right of way necessary to fulfill its contractual obligations.” …This does not leave much room for “voluntary,” “maybe” or “probably.”
By settling the water problems for the area, this Agreement was supposed to stabilize the plummeting land values and not continue to hurt landowners financially. Ranchers were assured they would not be financially responsible for any fencing or riparian habitat improvement work done on their land as a result of the new requirements spawned by the Agreement.
In the finer print, however, it can be found that property titles and deeds MUST BE altered as easements and liens will be attached to properties. The statute ORS 554.190(1) states: “The notice shall be recorded in the office where deeds and other instruments affecting the title to real property are recorded …. Such notice hall be a covenant to and with the corporation and its members and creditors, attaching to and running with the described land and every part thereof, granting the rights privileges and liens [to the corporation}.”
The statute ORS 554.190(2) goes on to say: “Land described in the articles of incorporation shall be subject o any indebtedness incurred by the corporation, all debts and obligations of the corporation thereto and thereafter created shall be a lien upon the land described in the notice prior to every other lien attached to the land.”
Once in, you’re in!
Landowners were told to sign on to the Agreement and give it a few years. Then, if they decide they aren’t happy with the way it’s working, they can back out later. ORS 554.300 makes this reversal of decision extremely difficult at best: “No land can be excluded until its proportionate share of all existing debts of the corporation has been paid.” Also, it requires the vote of two-thirds majority of members present or by proxy at a regular or specially scheduled meeting to include or exclude land. Some landowners question whether or not they would be notified of these special meetings, thus allowing the Landowner Entity to “save itself” by loading the meeting with one-sided, pro-corporation voters.
With so many issues being discussed among ranchers, the questions are endless. Few have answers, and even fewer know where to go for the honest truth. As more awareness of these facts are being circulated throughout the community, time will tell how much momentum will be created by the movement to withdraw from the agreem