©2017 Montana Land and Water Alliance

Author’s Notes: Grab your favorite beverage as this is a long article, probably taken in two sittings!  The first part of this article is a “quick” status report on the compact-generated Milltown Dam off-reservation water right and recent events and communication regarding its implementation off the reservation.  The second part is an article drafted for the public in response to a recent FWP hearing on the water right, which is too long for every paper and magazine.  Thankfully this venue offers potentially wide distribution and we’d appreciate you sharing it to those who may not have access to a computer!

The Compact-Generated “Co-Owned” Milltown Dam Water Right

The following article discusses the improper and in our view illegal implementation of  the CSKT Compact off the reservation for the Milltown Dam water right.  Recall that the Compact authorized two actions to begin immediately:  (1) implement the adaptive management plan for the Flathead Irrigation Project through the CITT (Compact Implementation Technical Team), and (2) implement the Milltown Dam water right, which involved “splitting” a water right on the Clark Fork river between two tributaries and changing the use to instream flow.  This was a change in the point of use(POU) and type of use for the water right.  Here’s the problem:

The state chose to implement portions of the CSKT Compact before Congress has considered or ratified it.  The portions they chose to implement involve uniquely federal issues—a co-owned water right off the reservation with the CSKT that is subject to Congressional approval, and attempted “adaptive management” inside the federal Flathead Irrigation project on the reservation which transforms irrigation water into a fisheries instream flow project.

On the reservation, of course, the BIA at the behest of CSKT has been pre-implementing the Compact since 2013 by denying irrigators the use of spring runoff, failure to store water (2013-2015), and failing to manage water deliveries or favoring compact proponents in the project, which has caused hardship and strife among neighbors. These actions stray far from the 2010 Operation and Management Plan which is the only federal document that is operative now. Thus the BIA, CSKT, and State/Compact-created CITT actions  in a federal irrigation project are by definition unlawful because they are contrary to the only federal operating document for the project.

Importantly, the state’s actions are improper no matter if the Compact is in Court or not–the state is wholly without authority to implement the compact in the federal Flathead Irrigation and Power Project.  Let’s not help them!

Off the reservation, the state is implementing what the compact calls a  “co-owned water right” with the CSKT.  The barriers to implementing this “co-owned” water right include:

  1. the legal validity of the all of the Compact’s claimed off-reservation water rights
  2. the legality of implementing a change in point and purpose of use of a state water right without a state law based hearing and/or environmental assessment,  and
  3. the actual ownership of the water right being federal, not Tribal.  So the state is going to co-own state water with the federal government.  (Note to State:  giving up water to the federal government, not the CSKT, sounds a little less romantic and daring now, doesn’t it?).

The Montana Land and Water Alliance first wrote to DNRC Director John Tubbs in November of 2015 citing the legal case and questioning the state’s implementation of this water right while the case was in court.  We suggested that until the case was resolved a state law based hearing should be held to address the known concerns of local irrigators regarding the effect of instream flow on irrigation.  Of course the DNRC dismissed our letter asserting the compact had passed the legislature. But that actually began the official clock as to the on-the-record notification to DNRC of the improper implementation of this water right.  The clock will be cleaned at some point in the future.

State Changes Compact Again without Legislature

Recently we had a chance to review the abstract for the Milltown Water Right which shows that it has changed from the 2015 Compact  in both ownership and effective date of the right. In 2015 it was a co-owned water right with an immediate effective date.

Now the water right  is owned by the State and the CSKT will at sometime in the future become the water right co-owner:

THE CONFEDERATED SALISH AND KOOTENAI TRIBES BECOME CO-OWNERS OF THIS WATER RIGHT ON THE EFFECTIVE DATE OF THE COMPACT, WHICH THE DATE ON WHICH THE COMPACT IS FINALLY APPROVED BY THE TRIBES, BY THE STATE, AND BY THE UNITED STATES AND ON WHICH THE LAW OF ADMINISTRATION (APPENDIX 4 OF THE COMPACT) HAS BEEN ENACTED AND TAKEN EFFECT AS THE LAW OF THE STATE AND THE TRIBES, WHICHEVER IS LATEST.

Note here:

  • the 2015 Compact has been changed by the state executive agencies, despite disallowing the state legislature to change any aspect of it, including the “effective date”.
  • what is the “Law of Administration” (UMO, WMB) doing in an abstract for an off-reservation water right?

This review prompted our second letter to Director Tubbs focusing on the abstract changed effective date, and asserting that until the compact is passed by Congress the Milltown Dam water right is a state owned water right and the compact cannot be used for its implementation because it requires Congressional approval–which is not certain- and ratification.

We requested once again that the state conduct a state law based hearing on the Milltown Dam water right, particularly because there are still anticipated impacts to irrigators that have not been addressed. That second marker was approximately 575 days after our first notice.

In its response to the MLWA letter,  the state doubled down on the compact’s supposed authority allowing the Milltown Dam water right to be implemented without a state hearing, and astoundingly, cited another appendix in the compact that allowed the state up to 10 years to hold “stakeholder meetings” to adjust to the new flow regime.

Regarding our question as to why the Law of Administration was included in the Abstract when it was unnecessary to existing language in the compact, the state couldn’t bring itself to acknowledge tribal-influenced language? a clerical error or oversight. Instead, it applied an allegedly reservation-based law for water to an off reservation, state-owned water right before it had the authority to do so.

The state cannot apply federal ownership to state owned water resources when the federal government has not itself done so.  What’s hard to understand about that?

Corrective Action

Why do we mention the number of days, now over 500?  Simple: in light of the clear facts presented, the state is out of compliance with its own law and its been over 500 days since they were notified.    The corrective pathway was identified in our recent letter.

Imagine if this were you, and you had a daily fine until you corrected an action on your property that violated an EPA, the Corps of Engineers, or Endangered Species Act regulation?  Those fines can range easily from $25,000-$100,000 per day, for which you have to spend additional money and hire lawyer to help.  What if we had the same kind of accountability for DNRC?  You can do the numbers for Milltown.

But seriously, what if DNRC implementation of this water right results in damage to irrigators using ground water resources hydrologically connected to the river? Under state law, the state would have to address these damages.

On reservation, the Compact  grants the state immunity from damages, costs, and attorneys fees resulting from implementation of the Compact’s Law of Administration.  But since the Law of Administration is now attached to the Milltown Dam water right, does that mean that the state is now immune from off-reservation damages too?

Is the state using the Compact to abandon its own law?

meeting on milltown dam water right

Recently the Granite Headwaters Watershed Group sponsored a meeting on the Milltown Dam water right and the CSKT Compact. Representatives of the MT Fish Wildlife and Parks were on hand to answer questions.  The meeting was described in the July 6 edition of the Philipsburg Press and can be found here.  The state asked for feedback. Here is our response.

“State Should Follow State Law, not Compact, for Milltown Dam Water Right”

Thanks to the Granite Headwaters Watershed Group for sponsoring a meeting on the Milltown Dam water right in relationship to the CSKT Compact, to the state presenters, and to reporter Emily Petrovski for capturing the sense of the meeting and the questions presented and addressed in the Philipsburg Press.

From the context of our background in critically examining the CSKT Compact, we’d like to offer a few observations that may help clarify the many questions about the Milltown Dam water right that in my view remain unanswered. Foremost in this essay are (1) the failure of the state to evaluate the impact of instream flows on irrigation; (2) the existence of an off-reservation, “co-owned” water right; and (3) suggestions in lieu of far-off congressional ratification.

For the record, when first examining this water right in 2015, we noted that the Abstract of water right for one of the two Milltown Dam water rights listed the CSKT as the co-owner along with the state, and the Compact language allowed its immediate implementation.  Today the same Abstract has listed the state as the primary owner of the water right, with the addition of the CSKT upon the “effective date” of the Compact; the “effective date is defined as after Congress, the Montana Water Court, and the Tribes have all ratified the compact”.

Thus, in 2015, the state was implementing this water right as if it was co-owned by the CSKT, and authorized under the CSKT Compact and a state law-based hearing was not necessary. Today the state is implementing this water right as a state-owned water right, but still claiming it is under the authority of the Compact which allows them to proceed without a hearing.

Failure to Address Agricultural Impacts of Instream Flow

A first concern about the Milltown Dam water right reported at the meeting is that the “agency is in the first phase of figuring out how the compact will affect irrigators”, according to Fisheries Manager Pat Saffel.  This is startling considering the water right has been implemented since April 2015, and that the DNRC has known since at least 2015 that there would be impacts to irrigators with the implementation of the new purposes for the Milltown Dam water right.

But remember in 2015 the DNRC claimed that the passage of the CSKT Compact was its “authority” for implementing the Milltown Dam water right and apparently that assumption is still there today.

In a February 2015 DNRC report regarding the off-reservation impacts of the CSKT Compact, the state discussed its concern about irrigation and ground water wells regarding the implementation of the Milltown Dam water right. The state indicated that it would have to conduct a hearing pursuant to Montana law and procedure in the event the Compact was not passed[1].  Since the Compact passed the legislature in 2015, the state did not conduct a hearing pursuant to state law and its procedures for the change of use for a water right and went ahead and implemented the change in water use in April 2015.

As of 2017, the Abstract of Water Right has been changed and now indicates that the state is the sole owner of the right, with a notice of the CSKT being added at some point in the future.   The right is still considered part of the Compact but now a state-based water right. But is this water right still implementable under the compact? Is it implementable as a state-based water right without a state-law based hearing, since the right will be owned by the state for a long time before the Compact is ratified by Congress and the CSKT are added as co-owners?

The state of Montana must do more for existing irrigation than “hope” the water issue “will not come down to fish versus agriculture”. In the context of the climate change predicted by Mr. McLane, however, and in the absence of diligent investigation, it will become just that.  Notwithstanding the fact that fish have adjusted to climate change too in the past and are expected to do so in the future, “It’s a fish’s world”, stated by, of course, the Fisheries Manager! What about vested agricultural rights?

Has the CSKT Compact already become a vehicle for the state to avoid a hearing on the Milltown Dam water right, or to ignore its own laws and citizens?

Does a “Co-owned” Water Right Exist with the CSKT?

Perhaps even more fundamentally concerning than not knowing the impact of the change of water use on existing water users is whether the state can “co-own” a water right with the United States.

Yes, the agency at the meeting said that “it was decided” that the Tribes could co-own a water right with the state, and the Compact “gave” them the co-owned water right. But the causal discussion of the validity of co-ownership of water rights with the CSKT conveyed at the meeting does not realistically portray the actual legal uncertainty of whether a state may co-own state water resources with a tribe or the United States. That decision is not up to the state of Montana.

This is important for people to understand because the federal government always is the main title-holder of property or rights in trust for a Tribe.  That the CSKT are a government organized under the Indian Reorganization Act emphasizes this fact. Congress must make this decision, and evaluate the impacts of such a decision on the states.

Federal ownership of the CSKT water right is stated in the abstracts of the Compact located in the appendices, as the Tribes’ rights are described as “U.S. Department of the Interior, Bureau of Indian Affairs, in trust for the CSKT”.   Except the compact’s Milltown Dam abstract, which now says it will be co-owned by the CSKT at the effective date of the Compact. Importantly,   if this state-declared co-ownership of a water right even exists, then it belongs to the United States, not the CSKT.

It also appears that the state does not acknowledge that without Congressional and likely U.S. Supreme Court action,  there legally are no Indian federal reserved or other water rights off the Flathead Indian Reservation, no matter what the Compact says.  A Tribe can claim a water right anywhere, but history, law, the Treaties, the Courts, and Congress determine their geographic location and extent.

Whether intended or not, the practical result of the Compact is that the state invited the United States to co-own state waters off the reservation and across western Montana, including the Milltown water right, through the CSKT Compact.  But can the state legislature create federal jurisdiction where otherwise it would not exist?

There is no example anywhere in the United States where a tribe co-owns water with a state, and no example where a Tribe has water rights off its reservation. The Milltown Dam and other off-reservation water rights involving the CSKT are uniquely federal issues and their validity must be determined by Congress and the Courts, a very long time away. This context suggests that the Milltown Dam water right cannot be implemented using the authority of the CSKT Compact. It is a state law-based water right owned by the state and can only be implemented now pursuant to state law.

Suggestions in Lieu of the Far-Distant Congressional Ratification

 The state chose to implement portions of the CSKT Compact before Congress has considered or ratified it.  The portions they chose to implement involve uniquely federal issues—a co-owned water right off the reservation with the CSKT that is subject to Congressional approval, and attempted “adaptive management” inside the federal Flathead Irrigation project on the reservation which transforms irrigation water into a fisheries instream flow project.

A hearing conducted by the state on the change of purpose and point of use for the Milltown Dam water right would provide the opportunity to evaluate the impacts of the change of use on irrigation, and to develop information on and measures for addressing drought, surplus, or extreme conditions.  A part of this hearing should address the enforcement provisions of the right in the hypothetical case of United States co-ownership.

[1] Montana Reserved Rights Compact Commission, 2015 Proposed 2015 CSKT Compact Off Reservation Impact Analysis, February 2015. See pages 4-8. http://dnrc.mt.gov/divisions/reserved-water-rights-compact-commission/docs/off-reservation_impact_analysis_2-2015.pdf

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