©2014 Concerned Citizens of Western Montana

Recent events related to the CSKT Water Compact confirm that the Governor of Montana and Compact Commission, as well as its enablers in the executive and legislative branches of state government have all been working in concert, intentionally or not–to give the Flathead Irrigation Project, its water resources, and its management, to the Confederated Salish and Kootenai Tribes (CSKT).

At least since 2011, the State of Montana has been working toward a compact that would essentially give the Flathead Irrigation Project water to the Tribes as was evidenced in the now defunct Water Use Agreement.   Keep in mind that the state took no issue with the forced relinquishment of irrigator’s project water rights to the tribe, and the compact water abstracts for project water convey to the United States / CSKT all the water in the project, 90% designated for fish and 10% for irrigation.

After conceding all the water in the project to the tribe, the state began to seek an avenue to assist the tribe in achieving their demand for management of the project water.  This was planned in spite of a 1908 amendment to the Flathead Allotment Act provided that:

“When the payments required by this act have been made for the major part of the unallotted lands irrigable under any system and subject to charges for such construction thereof, the management and operation of such irrigation works shall pass to the owners of the lands irrigated thereby, to be maintained at their expense under such form of organization and under such rules and regulations as may be acceptable to the Secretary of the Interior. “

In 2007, the CSKT attempted to circumvent this mandate by asking to the Department of Interior to grant them a “638 contract” for the management of the irrigation project. The federal government rejected their request and arguments explaining that the project was not built solely for the tribe.

So the state of Montana, ignoring that history, worked with the CSKT to provide an alternative means for the CSKT to manage the project, through dictating 1) Farm Turnout Allowances in the Water Use Agreement and 2) making the project subject to the Unitary Management Ordinance.

Concerned Citizens has pointed out that the irrigator agreement was a red herring because it tricked people into debating how much water irrigators need, instead of focusing on the fact that (a) their water rights were being taken from them and given to the Tribes, and (b) that the compact fails to quantify the tribes’ federal reserved water right.  Since the compact has been “reopened” to insert the water use agreement, both the state and the tribe have made it abundantly clear that there will be no changes to the compact or the water use agreement which appears to give the United States / CSKT a significant amount, if not all the water in the irrigation project and off the reservation in western Montana.

So let’s set aside, for the moment, all the “theater” of pretend negotiations, secret meetings, interim committee “hearings”, and so called “studies”, and read between the lines:

  • A very reliable source says it was the Compact Commission that told the old Flathead Joint Board of Control they wanted the project water rights to be placed under the tribe’s “umbrella”, and directed them to “see if they could make it work”.  Voila, the “water use agreement” required the relinquishment of irrigator water rights to the Tribes.
  • John Tubbs, Director of the Montana Department of Natural Resources and Conservation,and the Attorney General’s office have conveyed their belief that all the irrigators want is a ‘firm supply of water’ and don’t care about a water right.
  • The recent Compact Commission “negotiation session” announced that while they were going to let the irrigator water rights be resolved in the adjudication process, they were not going to change the water abstracts in the Compact–i.e., the place where the irrigator water rights are “assigned” to the ownership of the Tribes.
  • The recently released technical work group (TWG) “report” deems the Tribes’ flawed computer model  “reasonable”, meaning a “reasonable” tool through which to take irrigator water claims/rights andto limit the amount of water irrigation is “allowed to use”.  This is despite the fact that during the TWG meetings they actually found that the Tribes’ technical model could not be used to allocate water to irrigators on farm, and that is was only a planning tool.
  • A recent state legislative services study of the “legal and constitutional” issues about the proposed CSKT Compact concluded—in contrast to federal and state law–that the Tribes could take jurisdiction over non-Indians for water administration because the so-called unitary management board “looks like” the tribal-fish, wildlife and parks joint board for wildlife management on the reservation.  You know, that same board that knows nothing about the wildlife or fisheries status on the reservation because “they don’t have jurisdiction”.  On the record, legislative services admitted that Montana citizens living on the reservation would be subject to different laws than the rest of Montana—the fundamental criterion for violating the equal protection clause of the Fourteenth Amendment.

The writing has been on the wall since the beginning.  For some unknown reason, the State of Montana will do anything and everything to justify this compact with the CSKT.  They will even go so far as to risk violating the fundamental rights of their own citizens that are guaranteed under both the U.S. and Montana Constitutions.  Is it promises of federal money, political fortune, lucrative government jobs? While we cannot possibly know the motives, it is likely all of that and more.

Don’t forget, it is also through a “water settlement”, that the Tribes’ are positioned for a very possible $1.4 billion in federal settlement money.  That averages a whopping annual $270,000 per tribal member, yet that settlement money will not be distributed to members.  What kind of influence might that kind of money be used for?

The only “bright spot” in all of the recent political machinations is that the state has fully exposed its legal position—for all to see, including other states who are keenly interested in whether or not  Montana is going to protect its rights as a state and the rights of its citizens.

Let’s see if this stunning breach of trust survives the court challenges that are most assuredly to come.