©2014 Concerned Citizens of Western Montana

DSC_4144We write now of the second point made in our “3 Easy Steps” article:  the Compact takes water away from thousands of irrigators and family farms.  There are two mechanisms through which the Compact takes water from other legitimate water rights holders:

  1.  The irrigator Water Use Agreement (WUA)
  2.  The failure to quantify the Tribes’ federal reserved water right

In no other Compact in Montana, and in no other water rights settlement or litigation in the United States, has an Indian water settlement resulted in the taking of someone else’s valid water rights/claims.  To be certain, there have been attempts to do so…wherein the Tribe/United States attempts to take water from non-Indians and then sell it back to them for profit.  They have been defeated in every one of these attempts by the strength and common sense arguments used by the states and water users against this tactic and philosophy.

It is, very simply, against the law to take water away from your neighbors no matter who you are, and those compact proponents who are attempting to give away their neighbor’s water are operating outside the law.

The Irrigator Water Use Agreement

The irrigator water use agreement (WUA) has been discussed at length on this blog, with the focus on the stunning components of the WUA that

  • Require irrigators to relinquish their water rights/claims to the CSKT, and
  • Reduce the amount of water applied to farmland by 80%.
  • Turn former irrigation water into instream flow

We were informed by a very reliable source that it was fundamentally the State’s idea to push the irrigators to accept that their water rights belonged to the CSKT, and to “see if they could make this work” in the “negotiations”.

Interestingly, and perhaps because the state realized that this would constitute a taking of water rights, the Compact Commission claimed the WUA was a “private water agreement” between irrigators, the Tribes, and the United States, and that the State was not involved.  In this manner, the State was distancing itself from any liability for the taking that was part of this “private” water use agreement.

Fortunately, the old Flathead Joint Board of Control–run by Alan Mikkelson, Steve Hughes, Walt Shock, and Paul Wadsworth–were prevented from voting on the WUA by the Western Montana Water Users Association’s legal action filed in December 2012.  The individual irrigation districts were prohibited from giving away their constituents water rights by the legal action of Lloyd Ingraham, our late water warrior.  And then in February 2013, a provision of the Water Use Agreement that required the relinquishment of water rights was ruled an unconstitutional taking without compensation by Judge C.B. McNeil.   Just as important is the reduction of irrigation to farmland by 80%.

Because the Tribes remain covetous of the irrigation water, and in fact claim that they own it, the “newly reopened negotiations” have as their target the insertion of the WUA into the Compact, with the State now “involved” in the “negotiations” on behalf of substituting itself for the Flathead Joint Board of Control.  The state here is attempting an end run around those unfavorable legal decisions resulting from Judge McNeil’s ruling and the writ of prohibition secured by Lloyd Ingraham.

But make no mistake:  any “changes” in the language used by the Compact Commission to describe the new WUA are merely cosmetic.  The statement that “we will not make irrigators relinquish their water rights, and they will be adjudicated in the Water Court” is actually disingenuous because

  • The volume of water allocated to irrigators is still less than half of the historic beneficial use, no matter whether it is delivered at the river diversion or at the farm turnout
  • The Compact still awards most of the irrigation water to the CSKT.

DSC_4126Remember the theater of the so-called Technical Working Group?  That was designed to basically “verify” that the Tribes’ model used to reduce irrigation water to farmland was based on “reasonable science”.  We know, having attended those technical working group sessions, that the Tribes’ model was shown to be woefully inadequate in many respects, including being based upon unverified theoretical data and employing erroneous assumptions.

This technical working group also found that the Tribes’ proposal to turn irrigation water into instream flow, based on the so-called “robust river” standard, was also not based on sound science.  Thus the “value” of instream flow for fisheries, and the loud crowing about that use being “non-consumptive”, turns out to be nothing more than another way to prevent irrigators from diverting their own water for use on their own farms, as they have been for 100 years.

The final proof one has that the WUA will not change is Chris Tweeten’s assurance to the Tribes in the September 3rd negotiation session in Missoula that “nothing in the abstracts will change”.  Well, it’s in those thousand pages of abstracts where the irrigation water is taken by and held in the name of the CSKT and turned into instream flow.

The Compact thus takes water away from thousands of irrigators and family farms.

Failure to Quantify the Tribes’ Federal Reserved Water Right

The reason that the Compact Commission has failed to provide a volume of water that can be called the “federal reserved water right of the CSKT” is because the Tribes’, with the concurrent of the Compact Commission, claim ownership of all the water on the reservation, including water that belongs to others.

Simply stated, the “quantified” federal reserved right of the CSKT is simply all the water on the reservation, so why provide a number?  When asked, the Compact Commission says that the quantified water right is listed in the abstracts, “but you can’t add those up”.  Well, looking in the abstracts and tallying the volume of water listed as belonging to the CSKT pretty well confirms that it IS all the water on the reservation.

Where did this assumption come from?  It came in the Tribes’ 2001 and 2010 negotiation proposal to the state, which stated that:

…The Winters Doctrine reserved all the water on the reservation for the Tribes.

In truth, the Winters Doctrine reserves ONLY that amount of water necessary to fulfill the purposes of the reservation, not all the water.  The Tribes know this, and so does the Compact Commission.  They are just hoping that you don’t figure that out.

The outstanding question for the Compact Commission remains:  how much water is the federal reserved water right of the CSKT.  “Look in the abstracts” is an unacceptable, and laughable answer.

TWeiner_Cutoffhere is no legal, administrative, or practical justification for the Tribes to own all the water on the reservation, or for the State to agree with this preposterous position.   Gee, it almost sounds as if there was a Tribal agent inside the Compact Commission office masquerading as a state employee working solely for the Tribes.

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