©2015 Montana Land and Water Alliance

Make no mistake about what is going on here: the BIA, the CSKT, and the State of Montana will not stop until they have all of  your water and land.  And they won’t stop until they are stoppedAnd that is why this is our battle, our time, and our mandate.

The subject of this post is the recent letter received by irrigators in the Flathead Project regarding the formation of the CSKT Compact’s “Compact Implementation Technical Team” (CITT), advising irrigators to appoint their one representative to the CITT.  The letter goes on and on about how the Compact is now state law, but just forgot to mention that the BIA’s  involvement as a federal agency is wholly dependent upon Congress’ ratification of the Compact, which has not happened.

That’s right…the BIA and BIA project manager CANNOT implement any part of the CSKT Compact before Congressional ratification.  This is especially true for a federal irrigation project, where a state simply does not have authority to pass a law to override federal law, and where the federal government can’t act without Congress’ approval.

The BIA, by the way, cannot change allocation your water rights inside the irrigation project to the CSKT’s desire or the compact’s objectives without doing a thorough environmental impact statement, including an economic study¹

What then was the purpose of the BIA letter?

Let’s review the facts:

  • There is active litigation right now regarding the constitutionality of the Compact vote, and the courts must deal with this issue.  It is a proper and ripe case.
  •  Since the Compact is in court, no one should be implementing it despite the Governor’s signature.  Continued implementation is evidence that will be used against the state and federal government to prove the case of willful violation of state and federal law.
  • State law cannot preempt federal law, including the 1908, 1926, 1928, or 1948 Acts that developed the Flathead Irrigation Project and specified the conditions of its management and turnover.
  • The BIA is required by law to turnover the project to landowners, not the CITT.  The BIA letter to irrigators could be seen as an announcement that they were turning over project management to the CITT.
  • The BIA has absolutely no authority whatsoever to deprive irrigators of their water rights or due process in protection of those water rights.
  • The Flathead Irrigation Project is not an Indian irrigation project…it was not built solely for the Tribes. They cannot take it over by fiat or without violating federal and state law
  • The state cannot deprive the irrigators of their due process and right to have their water rights adjudicated in state court.

So, if all the facts are against the BIA even drafting this letter, what then was the purpose of this letter?

We observe that the BIA’s communications with irrigators generally is all about threats of what will happen if they don’t comply with something the Tribes BIA wants.  In the last two years, irrigators have received letters about impending instream flows if the Compact wasn’t passed, a $7.50 raise on per acre fees for project operation; an ultimatum to accept BIA’s “solution” to the project turnover, and then the ultimatum that they are taking the project over anyway.

So nothing BIA has said or done has been constructive–in our view it is designed to intimidate, to divide and conquer, and to demoralize any compact or BIA opposition.  We will see how and if the Compact proponents use this opportunity to act as Tribal/federal agents and pressure other irrigators to comply, or appoint themselves to the CITT.

Oh, by the way, did the BIA tell you that if you didn’t appoint an irrigator to the CITT, they were going to exercise their plan for the irrigation project anyway?

The BIA sent this letter to irrigators without authority, without a need, without congressional approval, probably without D.C. level approval, and without adult supervision.

You know, we would say this was a sophisticated psyops operation if we thought the BIA was that smart.  But we don’t think they are.  So the conclusion is BIA’s normal mode of operation is to show absolutely no respect for the landowners, the money they contribute to BIA or the $100 million pumped into the local economy.  They don’t call the BIA the worst federal agency for nothing…that is an earned reputation.

What Can You Do?

While the FJBC explores its legal and administrative options regarding this letter to irrigators, there are things you can do.

  • First, write to Montana’s congressional delegation and ask them to explain why the BIA is implementing the Compact when it hasn’t been approved by Congress.  Since they won’t be able to answer that question, make sure you tell them to get engaged and to stop the federal implementation of the Compact.
  • Support the FJBC in its actions to protect irrigators
  • Resist any attempt to divide and conquer the irrigation community from those who would seek to take advantage of government corruption

¹Neither can the state, and the state has the additional burden of proving, under Title 85, that the transfer of use will not harm the original or other users.