©2015 Concerned Citizens of Western Montana

At least two, if not more, Motions to Intervene have been filed with the Federal Energy Regulatory Commission (FERC) regarding the proposed  partial license transfer for the Kerr Project from the CSKT to Energy Keepers, Inc. (EKI).  FERC announced its invitation for intervention, protests, and comments on Docket P-5-098 on April 28.

Senators Jackson and Keenan

(Keenan Jackson Intervention document)

In their May 26, 2015 Motion (insert cite here), former Senator and now Conservation District Supervisor Verdell Jackson and Senator Bob Keenan (R-SD5) wrote:

We respectively request:

  1. Information regarding how FERC is treating governmental status of EKI and CSKT with regard to this license. This is important to the public and the State of Montana in order to effectively interact with them and FERC in terms of a number of items (a) financial transparency and disclosure and reporting (b) Montana Public Service Commission oversight, (c) ratepayers absent MPSC oversight, (d) payments in lieu of taxes (PILT), and (d) liability..
  2. Documentation of the Tribes’ compliance with all conditions of the previous licensee as stated in Section II (3)[1] of the transfer application, particularly what the EKI and the Tribes considers “applicable state laws”. This documentation must be reconciled with the EKI Mission Statement, an Attachment to the license transfer application which rejects state laws[2]
  3. License guarantee for transparency in certain financial transactions involving the disposition of Kerr Dam revenue to public funds (e.g., Reclamation Fund), operational features such as lake levels, contractual obligations (such as irrigation both on and off the reservation), coordination with Hungry Horse Reservoir releases (such as flood control) and emergency operations.
  4. Oversight and compliance by the Montana Public Service Commission, the Department of the Interior, and the FERC in license performance reviews. With the status of EKI/Tribe unknown, it is difficult to know whether there will be or who will ensure oversight of license condition compliance and performance reviews.
  5. Participation in Emergencies or other Homeland Security Issues. We understand that there are several “black start” dams across the country that are activated in case of a national emergency, such as an EMP attack, and that Kerr Dam may be one of those facilities. To the extent possible, we request information regarding the participation of Kerr Dam in any such network and the EKI/CSKT participation

Further, this Motion to Intervene suggests that the Commission consider conducting a field hearing at a public facility in either Kalispell or Polson, or both, to gather and share information on the above.

The Montana Land and Water Alliance

(MLWA Intervention document)

The Montana Land and Water Alliance (MLWA) Motion to Intervene focuses almost entirely on the need for the new licensee to meet the conditions of the previous licensee:

A license-holder’s principal license obligation is to be subject to state regulation and review. While professing they intend to follow “applicable” state laws and provisions of the previous licensee the EKI /CSKT instead use their federal status to exempt themselves from state laws, regulations, taxation, and public meeting laws and disclosure rules . From the Federal Incorporation Charter for EKI attached to the Application, at page 7:

Nothing in this Charter, and no action taken by the Corporation pursuant to this Charter, shall be construed as permitting, recognizing, or granting the State of Montana, or any other state, any regulatory jurisdiction or taxing jurisdiction over the property or activities of the Corporation or its employees located within the boundaries of CSKT’s Indian country

In using that federal status, however, the CSKT/EKI don’t commit to providing the same transparency, disclosure, or other functions that any other federal entity would when managing or owning a like facility.

We note for the record that the “CSKT’s Indian Country” is the same ploy used in the Compact as the definition of the reservation.  Instead of a reservation being those lands owned by the United States in trust for the Tribes or individuals, the CSKT use “Indian Country” in its broadest criminal jurisdiction sense.  Their application for a license transfer intentionally cites 18 U.S.C. when it should be citing 16 U.S.C.

Other Interveners

The FJBC and the Montana Public Service Commission also intervened in the proceedings on Thursday.  We will report any news about FERC’s response as soon as it’s available.

Here are their intervention documents:

Flathead Joint Board of Control

Montana Public Service Commission

Montana Land and Water Alliance

Here is the CSKT Challenge to those requests for intervention status:

CSKT Response

Jackson Keenan Response to Tribe’s Objection

MLWA Response to Tribe’s Objection