©2015 Concerned Citizens of Western Montana
A related aspect of keeping the public apprised of the CSKT Compact in this blog has been to gather, organize, and read as many historical documents as possible relevant to the origin and history of the Flathead Irrigation and Power Project (FIPP) the relationship of Kerr Dam to the Project, and the relationship of these to the CSKT Compact. This essay briefly addresses the relationship between the FIPP and Kerr Dam as gleaned from just a few of the documents reviewed.
While many of these documents are public documents that can be and have been found on the internet, in county court houses, in the Missoula Federal Records Center, or through some good old fashioned legwork, to organize and assemble the legal, legislative, and factual record of these issues forms an important historical record.
The history of this irrigation project and Kerr Dam must never be forgotten as knowledge ensures that this vital irrigation project continues to provide for generations to come. The circumstances of the day–the Compact, Kerr, the BIA and FIPP–require it.
Let’s put a few of these conclusions out there for review.
The Flathead Irrigation and Power Project was initially designed and built by the Reclamation Service (now Bureau of Reclamation), not the BIA. By 1924, the year in which operation and maintenance of the project was turned over to BIA, 60% of the project had been completed. As a Reclamation Project, continued construction of FIP after 1924 followed Reclamation plans, used Reclamation engineers, and employed Reclamation financing and repayment methods. Reclamation was still around in 1985 operating and managing the FIP for the BIA.- The United States reserved or appropriated water for the irrigation project including the water in the upper 9 feet of Flathead Lake for irrigation and power purposes. This is 1.2 million acre feet. The U.S. reserved a 9 foot easement around Flathead Lake for reservoir fluctuations due to use by irrigation or power in 1909.
- The 1934 Indian Reorganization Act did not apply to lands with appurtenant water rights within a reclamation project (federal irrigation projects on Indian reservations), meaning it does not apply within the FIP.
- Power was always a part of the FIPP because pumping from the Flathead River was incorporated into the design by Reclamation engineers. Net revenue from the power distribution was to be used to repay the United States for the cost of the irrigation Project including power development and was codified in 1928.
- The water rights reserved or appropriated by the United States for the FIP and power were licensed by the Federal Power Commission (now FERC) to be used (not given away) by the Kerr facility to generate power. This 1.2 million acre feet of water became part of the”project works” of the Kerr Dam FERC license to be used for irrigation and power.
- A block of power was provided to the federal FIPP in compensation for the use of the water, and the Project (United States) given the right to market any excess power. The net revenue from this marketing of power is then available to the FIPP for six purposes outlined in the 1948 Repayment Contract, all for repayment of construction costs and operation and maintenance.
- Since 1985, when the BIA split the power and irrigation divisions, the net power revenues have been spent on everything else but irrigation. Even if these funds were occasionally spent on fish ladders, screens or habitat restoration in the irrigation project, these expenses are not an authorized use of net power revenues.
Putting all of this together, and using additional legal, historical,and legislative documents helps to identify strategies going forward. Without such historic or “institutional” knowledge it is impossible to be strategic and this deficit may promote careless, potentially reckless, and costly action, just to have action.
Truth and History Deniers
The list of facts above are all things that have been and continue to be denied by the BIA, the CSKT, the state of Montana, and the Department of the Interior. Their denial is a clear and present danger to us all.
Regarding the truth of these facts, and how they all related to the Compact, none of this was very well received by the BIA, CSKT, Compact Commission, or compact proponents and their supporters. Rather than acknowledge these facts, and the truth, the proponents chose to discredit and assassinate the messengers through untruthful statements and innuendo.
We know that the state could not defeat the arguments raised by the CCWM or the MLWA, and had to pass the compact by discrediting opponents, lying about the Compact, changing the rules, and spending millions of dollars.
To this day, proponents of the Compact and others involved in dastardly deeds against the irrigators continue to employ these tactics, as well as to cause disarray and chaos. All this generates conflict and mistrust, which is what it is designed to do. What better way to break a community than divide it?
The only way to defeat this chaos is to be informed. It’s true–the truth will set you free!
Beware Quick Fixes to “Everything”
As we have reviewed tons of materials regarding the Compact and other subjects, the realization dawns that the Tribes have been waging war against residents here for 50 years. And now federal objectives coincide with the Tribes’ expansive and aggressive actions, because of the Tribes’ status as being under federal control. Thus any “quick fix” action that promises to resolve all those problems is ill advised. In fact, we can be sure the Tribes, the federal government, and the State are hoping we trip and fall in our efforts to stop them from stealing property rights, and a sure way to do that is to make mistakes by acting without full information.
A plan to defeat this compact must be well thought-out, informed, strategic, and effective. Beware of anyone who says they can act now and fix this overnight.
Western Montana Water Rights 
The Tribes and the state basically “rewrite history” and in today’s world, act as if those laws were never passed. One can easily see this with the Kerr Project from day one. Not 10 years after they had signed off on the deal, including the low cost block of power, they were back in court arguing the dam belonged to them and all the revenue needed to be turned over. They had amnesia regarding the low cost block of power. Don’t be fooled–get educated and act smartly!
Another important piece of information to know: the law is on the irrigators’ side! There is too much legal, documented history to conclude any other way. that the tribe ignores this history and facts is a given; but for the state to do so indicates its absolute betrayal of its citizens, for which there will be no relief. Anyone who tells you otherwise, that “if you don’t have the law, throw everything at the wall” is again misinformed. The law is on the side of state citizens and the FJBC here. That is one of the points of this article.
So here’s another use for knowledge of the history of the FIP: how to determine who owns the water in the FIP, individuals or the Project (U.S.)? If you know the history of the FIPP and Kerr, then you know the answer to that question. And, just to be clear, the answer cannot be determined by reading this article.
“possession” it is said “is 9 points of the law”. So, Dr. Kate is correct. Who owns the water? The Montana Constitution is clear on that: the people of Montana own it. And it is theirs to use for “beneficial purposes”. Not dictatorially distributed or determined uses created out of “hole cloth” by an aberrant bunch of bureaucrats. Keep the faith. And keep the focus. Whiskey is for drinking; water is for fighting. And we are in this for the survival of our state, and every other state, and the power all states have, alone or united, against tyranny. The “united” states is not some “single” thing. The term means what it is: states united and supportive of the US Constitutional LIMITS on ALL government agents and agencies that seek to do harm to us, the people. Take our water? There may well be red in it by the time it is over. But, we, the people, will win. Stay strong, and thank you Dr. Kate and all those who can and have done everything to bring us to this point, and beyond.
We are sitting back and allowing those that have become the self appointed guardians of our water to proceed with only a whimper from those who have held the right to use this water for over 150 years. The DNRC, under the power supposedly given them, have re-allocated most of the water in the State of Montana to whoever they deem worthy. The complete shift to a world of concern for the supposedly oppressed peoples from the past, has completely engulfed the thinking to those who have been delegated the power. As we sit back and relax, our government employees are busy turning the right to all privileges that we have enjoyed and left unprotected over to those that until now haven’t even shown any interest in. It is strange how the thought of money changes their thinking.. I am totally astonished at how easily we surrender all of the God given rights we have enjoyed and those rights and privileges that our ancestors fought and died for. Has modern man become completely spineless??