© 2015 Concerned Citizens of Western Montana

Over the weekend, the Compact Commission held a series of three public meetings to discuss the revised water compact, two in Ronan, and one in Kalispell.

We attended all three because each meeting seemed to be targeted at a different audience:  1) Flathead Project Irrigators 2) On Reservation Public and 3) Off Reservation Public.  We wanted to see first hand what was presented at each.

Here is a timeline of the new compact documents as of the writing of this post:

01/07/15        A public review draft of the compact was released to the public

01/09/15        Appendices available only minutes before public meetings began

01/12/15       New Compact Document submitted a few short hours before the compact commission vote to move the compact forward. (Update)

01/21/15      As of 01/21/15 9 compact appendices still remain unfinished. (Update)

DEJA VU

Is it 2012-2013 or 2015?  We are seeing the same scenario play out as in 2013, except it appears that this go around the Compact Commission is even more behind schedule than they were two years ago.

In 2012-2013 the public was forced to suffer through three iterations of compact documents within a five month period.

In 2015 some of the pretense has been dropped for expediency.  Tomorrow evening the Compact Commission will consider voting to move the compact forward to the legislature without the benefit of a complete document, and without providing any time for complete public scrutiny.

Montana’s constitution provides for the Right of Public Participation and the Right to Know.  While all of that sounds good on paper, on the ground, its a different story.

PUBLIC MEETINGS

Both Melissa Hornbein and Ethan Mace presented the revised compact from the state’s perspective.  What was noticeable about the presentations however, was that very little new information was provided, mainly because little has changed in the documents.

True to Chris Tweeten’s word at the first “renegotiation session” last September, not a drop of water has changed.  After all, why would the tribe want to consider a more reasonable and acceptable compact after the state had already capitulated everything possible to them in the first go around?

After more than eleven hours of meetings over two days, we now know that the most egregious aspects of the compact remain unchanged. And, we still do not know how much water is being given to the Tribes as part of this compact.  The State refuses to divulge that number because it is too large and they know that if legislators knew how much water it was they’d never vote for the Compact.

What is new however, are some talking points and document revisions intended to give the appearance that Attorney General Fox addressed the legal and constitutional issues with the compact, and that the incorporation of the Water Policy Interim Committee’s (WPIC) recommendations were “substantive”. We maintain that the improvements make it worse than before:

Com Com Talking Point Our View
Flathead Project irrigators will now be able to pick up their “ENTITLEMENT TO WATER DELIVERY STATEMENT” from the project manager.  Because the compact says so, this is a legal and valid “property right” that you can take to the bank for financing related to your agriculture business. They fail to mention that the compact still transfers the bare title of the FIP water to the Tribe and will significantly reduce irrigator’s water, and for that reason, they will be able to grow fewer crops.  It is more likely that because of the reduction in water, financing for their operations will be cut, as well as their annual income. We call this the ‘counterfeit water right’
The tribes will be given the underlying water right to every drop of water in the project.. When asked what the legal underpinning for that compact provision is, it was admitted there was none.  But in negotiations, we were told, you win some, lose some.  What exactly did irrigators “win” in this negotiation?  They don’t even get to keep the bus that the state is trying to throw them under
Historic Farm Deliveries will be protected. The compact defines “historic deliveries” and they are not the amounts of water that irrigator’s have received in the past.  Instead it is defined in the compact to be what the tribe’s model says historic deliveries are. SURPRISE!
The state cannot compel irrigators to give up their water rights, so they will be able to go through the adjudication process like everyone else. Nothing has changed. The tribe is being given rights to ALL OF THE PROJECT WATER. How is that going to work out for irrigators? The state was not part of the original water use agreement because they knew they could not compel the relinquishment of irrigator’s water rights, but wanted irrigators to foolishly do it on their own. Isn’t it stunning that some irrigators remain willing to do just that?
The compact includes provisions to provide the low cost block of power for the irrigation project and some of the net power revenue. The tribe is willing to have their FERC license for Kerr dam reflect this. By attempting to marry the compact with the Kerr Dam license, it appears that the tribe hopes to 1) avoid federal scrutiny on Kerr Dam, 2) to get the compact ratified, and 3) to give the appearance that they’ve made further concessions. THESE ITEMS ARE PERMANENT FEATURES OF THE KERR DAM LICENSE AND DO NOT BELONG IN THE COMPACT.  The compact is only supposed to quantify the tribe’s federal reserved water rights.  Not settle or resolve issues related to the tribe’s acquisition of  Kerr Dam.
County Commissioners will be able to make recommendations to the governor for the Unitary Management Board Lake County Commissioners support the compact. They stand to lose more than $1 million in tax revenue per year when the CSKT take over Kerr Dam. The tribe “might” consider payment in lieu of taxes, if the county toes the tribal politics line. This ridiculous change increases the likelihood of tribal jurisdiction over non-Indians.
The Amount of Acreage served by the project was revised to provide for future growth. The original compact allowed for 130,000 acres, and the new and improved compact allows for 135,000 acres. The compact significantly reduces historic use of irrigation water, and over time will put irrigators out of business.   This change gives the “appearance” that the compact considers future growth and development when in fact, the details of the compact serve to put them out of commission.
Adaptive management will ensure that the project is able to adjust to conditions on the ground. Because the tribe’s model was found to be insufficient for the purposes it was used, adaptive management allows for “verification of the model” and  “tweaks and adjustments”.  Adaptive management could also be viewed as a way to further ratchet down irrigator’s water, particularly if the tribe feels the amounts delivered exceed what they believe to be necessary.
A new Compact Implementation Technical Team (CITT) will be created to ensure that operational improvements are executed to provide for the efficiencies mandated in the compact. This bureaucracy is designed to implement the compact as quickly as possible, and it’s likely result is to forever remove legally-required project management from irrigators.  This board gives them only 20% representation, when in fact they own 90% of the lands served by the project.  We ask whether or not this is intended to circumvent the federal turnover provision currently written into the law, giving the tribe even more control over day to day operations of the project.

What is that proverb, the more things change, the more they remain the same?

Chris Tweeten’s disdain for the public was even more apparent in this round of public meetings than it has ever been.  Kudos for the folks in Kalispell, who did not allow it.  They told him they were not there for a debate and insisted that he listen to what the people had come to say about the compact.

The commission doubled down on their never ending  threats of 10,000 tribal claims throughout the state, and when someone from the audience called them out for fear mongering, Chris Tweeten felt the need to debate once again.

Hertha Lund deserves special recognition for bringing her superior “water law and water court” experience to these meetings, not to mention her “record for protecting property rights”.  She explained that she will retire rich if the compact is not passed, and afterward passed her business card out to people in the hallway who had attended the meeting.  We wonder if she realizes that each time she speaks in support of the compact,  her credibility with respect to “protecting property rights” is diminished?

The icing on the cake was one irrigator proponent of the compact saying that by trying to stop the compact we were denying his right to due process.  We wonder when he might realize that the compact denies due process to many who are directly affected by it?

So there you have it.  Proponents of the compact are still moved to speak of the compact in glowing terms, just as opponents continue speak out against it.

It’s too bad the compact commission didn’t spend more time these past two years making substantive improvements to the compact.  Instead they spent their time traveling around the state with proponents trying to “sell the public” on it.  Had they chosen the former, we might actually have had a compact that people could get behind for the 2015 legislature.

As it stands now, we have no complete document, and people are more divided than ever.

Should we attribute this situation to the tribe’s unwillingness to change anything, or the state’s desire for a compact no matter what, or both?

Either way Montanans are served up another very bad document with CSKT Compact Version 2.0, and citizen’s are still being thrown under the bus.

Actions speak louder than words.  The state really does want a compact no matter what the cost to its citizens.

Under the Bus

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