© 2014 Concerned Citizens of Western Montana

The Confederated Salish and Kootenai Tribes (CSKT) must think they are sitting in the cat bird seat these days.  But wait:  does their excessive spending betray a little concern?

They are going all out to ensure that like it or not, their water compact is forced upon the people of Montana.  Their tribal council minutes are full of references to the hundreds of thousands, if not millions of dollars they are spending to accomplish that objective.  They’ve hired republican lobbyist Mark Baker to twist republican arms, public relations firms such as Denny Rehberg’s Mercury to make the compact look innocuous and pretty, and have even gone as far as to fund the Political Action Committee of republican Senator and illogically exuberant republican compact proponent Bruce Tutvedt.  He and democrat compact commission member senator Dick Barrett, show their disdain for property rights of Montanans by their unswerving devotion to the proposed CSKT Compact.

Compact proponents such as Susan Lake have also paid their respects, conveying to the CSKT all that they will personally do to ensure the compact is passed in 2015.  Tutvedt has also indicated to the tribe for the record that he and our very own “representative” Dan Salomon are working very hard to get rid of the sixty vote problem in the legislature to also ensure the compact is passed “early” in the legislative session.  Rules changes or a leadership takeover anyone?

By all appearances, the compact proponents seem to think the fix is in.  To the tribe, the skids have been greased, and it is a simple matter of waiting until 2015 to make their wildest dreams come true.

In addition to all of this activity, Montana officials have also been busy little bees.  We see several activities taking place simultaneously, designed to give the public the appearance that the compact is still being renegotiated or as some like to call it, being “tweaked.”  Those avenues include the “studies” being overseen by the Water Policy Interim Committee (WPIC), the Compact Commission’s reopened “negotiations”, and behind the scenes involvement of Montana’s very own attorney general’s office.

Didn’t the governors report say the only party able to negotiate the compact is the compact commission?  Why then are the attorney general’s office and seated legislators also getting in on the act trying to provide their own special assistance to, and receive special benefits from, the water compact, that is likely to merely disguise the compact to make it appear more palatable to legislators and an unsuspecting public?

It would seem to us that with all of this other activity going on, the state only expects the public to keep their eyes on the reopened negotiations, while the real action might taking place somewhere else.

Is this like the magician telling us to watch one hand while the real sleight of hand is being worked with the other?

WPIC COMMITTEE STUDIES OVERSIGHT

Earlier this year, Representatives Nancy Balance and Keith Regier submitted a letter signed by 50 legislators asking for rigorous and independent studies of this compact.  This brave group of legislators simply believed there was not enough information available for them to make an informed decision about it.

The letter was taken to the Environmental Quality Council where it was promptly punted to Senator Vincent and the Water Policy Interim Committee (WPIC).  WPIC, instead of agreeing to approve comprehensive and independent studies of the compact, set in motion the likely possibility of incomplete and ineffective studies that ultimately will not answer the very important and serious questions raised by legislators. To note:

  1. Legal / Constitutional Studies– the analysis of the legal / constitutional questions raised about the compact will be completed by the legislative services staff, the same staff that allowed the compact to be submitted to the 2013 legislature with no concerns raised.  This analysis is scheduled for the September 8th WPIC meeting.  We wonder exactly how can they complete any analysis when the compact is currently being “renegotiated”?  How will they address any of the “tweaks” that might be made subsequent to their report?
  2. Environmental impacts – this analysis was given to the Montana Bureau of Mines and Geology which on its face appears to be a good thing.  Unfortunately the committee, which includes pro-compact Department of Natural Resources and Conservation (DNRC) staff, has focused its efforts on verifying the quantification of the farmer’s water and not on the quantification of the tribe’s water needs.  When all is said and done, we still will not know how much water has been awarded as the tribe’s federal reserved water right and how much water is over and above that amount.
  3. Economic Impacts– the state has ordered no studies to analyze the economic impacts of this water compact on property values, personal income or local economies. Instead they seem to be positioned to accept a study being paid for by compact proponents.  To add insult to injury, this study supported by Representative Dan Salomon, a seated compact commission member and compact proponent.  It is no surprise that he is supporting a document that by all appearances will be a biased analysis of his own work product.  How is that not a conflict of interest?

Take a look at the upcoming September 8 WPIC meeting agenda.  Where do you think they are headed?

REOPENED NEGOTIATIONS

At the same time as the WPIC studies oversight is going on, the Compact Commission announced its first public compact negotiation meeting since their notice of reopening in early June.  That meeting will be held at 2:00 in the afternoon in Missoula on Wednesday September 3, 2014.

Would you be surprised to know that this will not be the first negotiation session the compact commission has held since their early June announcement of reopened negotiations?  The compact commission has held at least a few meetings already, convened privately under the guise that ongoing litigation prevents them from holding public meetings.

While we cannot know for sure which litigation the commission relied on to exempt themselves from Montana open meeting laws, to the best of our knowledge there have been no changes in the status of any lawsuits related to the irrigation project, the state of Montana, or the CSKT.

The excuse of litigation doesn’t quite seem to hold water all things considered.  If hiding behind “lawsuits” is the convenient excuse for holding private meetings, why, with all the same lawsuits still active, is it okay for the commission to now hold a public “negotiation” session?  This just proves that the Tribes’ lawsuit and the Compact are after the same goals, and that the Compact Commission is trying to dismiss the lawsuit by giving us the compact.  Nice try, but no cigar!

In early August, we asked the question whether or not it was appropriate for the compact commission to hold any negotiation sessions considering the active and aggressive litigation of the tribe who is blatantly trying to circumvent the state process of compacting and / or adjudication.  So let us ask again:

Is it appropriate that the state “negotiate” with the tribe while there is an active lawsuit by the tribe asking the federal courts to declare their ownership of all the land and water within the historical boundaries of the Flathead Reservation?

Why would the state of Montana want to negotiate at all considering the tribe’s aggressive attack on the its institutions, its sovereignty that the rights and property of its citizens?

What is really going on here?

ENTER THE ATTORNEY GENERAL’S OFFICE

At the same time the compact commission has announced its negotiation meeting, the Attorney General’s office, with Jay Weiner, architect of the compact still in its employ, is requesting to meet with irrigation project commissioners to help “resolve” their issues and concerns about the irrigator water use agreement.

Exactly how is it that the attorney general’s (AG) office sees fit to be involved at all, especially since they intervened in the Tribes’ lawsuit and are actively trying to dismiss it simply on the grounds that the issues aren’t ripe?  It seems that rather than speaking to the merits of the tribe’s aggressive attack on Montana and Montanans, the attorney general is more inclined to kick that can down the road so that future generations will have to fight the same battle all over again.  And, don’t forget that the Attorney General has asked the irrigators to dismiss their action before the Water Court, once again showing that the AG’s office really doesn’t want anyone protecting their water right claims.

We must ask why should the Attorney General’s office be involved at all, as an active intervener in litigation with the tribe?  And considering their history on the compact, are they to be trusted at all anyway?

CONCLUSION

So with all this being said, we would like to ask the public to pay attention to all the parties involved behind the scenes.  The facade of compact commission “negotiations” are only one small part of what is really going on.

We also ask that you don’t be fooled into thinking that a negotiated settlement must be had at all costs.  A negotiated settlement is good only if it is fair and equitable to everyone–and that is the law that the Compact Commission is supposed to follow. The threat of adjudication should remain on the table but sadly the state of Montana doesn’t want to hold that card.  They insist we must have a compact at all costs, because they are fearful.

It has been a waste of money to pay the compact commission to arrange a compact that guts private property rights, eliminates state protection for its citizens, and gives away all the water in western Montana to the federal government, under the guise of an Indian water settlement.

Unfortunately for the citizens of the state, it will be very difficult for the state to walk back from its attempt to concede everything to the tribe and to get themselves back to a reasonable position.  For that reason we seriously doubt there will be any truly substantive changes to the compact.

So, let us again ask the same questions that we’ve repeatedly raised during the past two years:

Why is our state willingly trying to give the federal government control over the waters of western Montana?

What tribal threats lie behind the state’s willingness to throw their citizens under the bus by putting them under tribal jurisdiction for their water needs?

Why, when one party has proven time and time again that they are unwilling to negotiate anything substantive, doesn’t the other party say enough, and move this forward to the water court and adjudication instead?

How much water has the state awarded to the tribe in this compact, and how much of it is their federal reserved water right vs. overreach?

The ongoing actions of the state related to this compact are questionable at best.  We would like to believe that legislators will do the right thing and not vote for a bill only to find out what is in it later.

It is our fondest hope they will take their oath to the constitution seriously enough to just say no.  But short of those things, there is no way Montanans are buying what the United States, the CSKT and the state of Montana are trying to sell them.

The time has come for all “negotiating” parties to do the right thing.  Either pare this compact down to the federal reserved water rights quantification it is supposed to be, or suffer the very expensive consequences of never-ending litigation.

In other words, it is not just the tribe’s threat of litigation they should be concerned about.

 

 

 

 

 

 

 

 

 

 

 

 

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