IMPORTANT Information for FIP Irrigators

© 2022 Concerned Citizens of Western Montana

Note:  It is our sincerest hope that anyone who irrigates on the Flathead Irrigation Project take time to file an objection to the CSKT Compact Decree with the Montana Water Court before the December 6, 2022 deadline.  Your water right is too important to rely on its defense by others. This post is provided to you for informational purposes, first to refresh you concerning the fraudulent process that took place with the original Water Use Agreement, and then to provide information that explains the loss of historic uses of water delivered to irrigator lands in the compact.  Be sure to click on the links provided for reference to the data provided. If you find this information helpful, please be sure to share it with your friends and neighbors who irrigate on the project.  THE INFORMATION PROVIDED IN THIS POST IS IMPORTANT. PLEASE TAKE TIME TO REVIEW AND TO UNDERSTAND IT AS YOU PREPARE FOR FILING AN OBJECTION.  We are not attorneys, and cannot give legal advice. If you’d like to work with an attorney on a defense strategy for your water rights, we recommend you contact the folks at SaveYourWaterRights.org. They can put you in touch with an attorney for a reasonable cost.

BACKGROUND

When we first got involved with the water compact in 2012, the Flathead Joint Board of Control for the Flathead Irrigation and Power Project was wrestling with their very own “Flathead Project Water Compact” known as the Stipulation Agreement or the Water Use Agreement.

The Flathead, Mission and Jocko irrigation districts have a combined total of 11 elected commissioners and one appointed commissioner at large which makes up the representation of the 2,500 or so irrigators on the project.  

These districts fall under Montana statutes, and were created because of a mandate from the federal government via 44 Statute 465 in 1926:

Pursuant to this act, three irrigation districts were formed in accordance with Montana State law.  These districts were the Flathead, Mission and Jocko, who executed repayment contracts with the U.S. on March 2, 1928, April 21, 1931 and November 13, 1934, respectively.

Because these districts are a form of local government, Montana left it up to the 12 representatives of the majority of project irrigators to negotiate a “water use agreement” with the United States and CSKT tribal government wolves. 

At an August 2012 compact commission meeting in Helena, Jay Weiner said this about the Stipulation Agreement:

As I think most of you know, that project was turned over from Federal to local management a couple of years ago under a transfer agreement, among the United States, the tribes, and the Flathead Joint Board of Control.  And at this point, for the last I’m not even sure how long, those three parties have also been negotiating what has been commonly referred to as the stipulation agreement  I believe it’s formal title is the FIP Water Use Agreement, that is intended to be an articulation among the tribes, the joint board of control and the united states over how water is going to be used on the irrigation project in a post settlement world, and particularly how a balance will be struck  between the tribes instream flow claims which as a matter of federal law are senior to any consumptive use claims.  But how the balance will be struck between the increase of instream flow rights and the use of water on the project. 

For the last couple of years, one of the principles in THOSE negotiations, the state is not a party to those negotiations, on this water use agreement, one of the principles the tribes and the FJBC and the United States are moving toward, is the notion of having the project water right be part of the tribal water right.  

How is it possible that the Joint Board Commissioners would be willing to let their project water rights belong to the CSKT, when 90% of the lands served by the project are privately owned by non-Indians?

The so called Water Use Agreement they came up with was preposterous on its face.  Here are a couple of its most egregious provisions:

• This Agreement and the Compact specify the terms under which the United States and the FJBC agree to withdraw and cease prosecution or defense of all claims to federal reserved water rights, state‐based claims, permits or exempt water rights for water held in their names in the Montana General Stream Adjudication for use on lands served by the FIIP. In exchange for withdrawal of all such claims, permits and exempt water rights, the CSKT commit to the use for irrigation and other Incidental Purposes of a part of their water right to be delivered by the Project Operator pursuant to the terms and limitations of this Agreement, including the Appendices. The water the CSKT shall make available to serve the FIIP under this Agreement is a portion of the CSKT federal reserved water right recognized in the Compact that has a priority date of July 16, 1855.
• All Parties covenant to take all steps necessary and lawful to defend this Agreement from judicial and legislative challenge that in any way materially impacts the ability of any Party to fulfill its obligations under the Agreement or that materially impacts the execution of the Agreement. Consistent with the sovereign immunity of the Parties, the mutual defense covenant shall apply regardless of the forum and venue in which a challenge is prosecuted, be it judicial or legislative, of international bodies or the Federal, State and Tribal governments.
• The FIIP, or the Irrigation Districts comprising the same, relinquish all claims to power and energy defined in the FERC license through the period when the CSKT is no longer the licensee.

The corresponding abstracts of water rights in early versions of the compact showed that 88% of project water would carry a time immemorial priority date for fish, leaving 12% of project water for irrigation with an 1855 priority date.  It was a decidedly anti-irrigation agreement that twelve men nearly ratified without the knowledge or consent of their irrigator constituents.

We suppose that the state of Montana was hoping the irrigators would hang themselves by signing onto such an agreement, and in 2012 the Joint Board of Control with the advice of their attorney Jon Metropoulos and consultant Alan Mikkelsen were poised to do just that.

At the FJIB special meeting on May 31st, 2012, the consultant and attorney stated (we paraphrase here): We could take this to litigation, and after a long period of time and with many legal fees paid out, the courts might give us about the same water rights as laid out in this document. But the difference is you will have spent a fortune on legal fees and you wouldn’t have the “tribal settlement funds” agreed to in this project for betterments to the system. So you’re better off accepting this agreement.

When irrigators really began to understand what was going on, the Western Montana Water Users Association was formed and a lawsuit was filed.  We urge irrigators and other interested parties to refresh themselves with the 10 page McNeil decision pertaining to the proposed Water Use Agreement. 

This decision, along with its CONCLUSIONS OF LAW, gives a clear picture of the slippery slope that Montana, the United States and CSKT had actually placed the irrigators on.  There is little doubt that the parties to the compact wanted irrigators to fall off the cliff by agreeing to this ridiculous settlement.  Keep in mind also that most of the provisions of the old Water Use Agreement, still exist within the Flathead Water Compact that is currently being considered by the Montana Water Court.

Over the years that followed, it became obvious that irrigators were not happy with the terms of this so-called settlement, and it was going to be difficult to accomplish an agreement that represented an unconstitutional taking.  But not to worry: the state, the feds, legislators, and even irrigators who supported the compact went into overdrive to wreak havoc upon the system, collapsing the Joint Board of Control, which in turn led to the compact parties disbanding what was known as the water use agreement.

This was done under the contrived narrative that the state would take over negotiations on behalf of irrigators, with an end result of cleaning up some of the language of the water use agreement, and incorporating it directly into the compact without the approval of irrigators. 

Montana truly has done a disservice not only to its own interests, but also to its citizens.  We discussed this a little in our last post, asking the question Why Didn’t Montana Call Off Negotiations? 

When it became clear that the United States and CSKT were not budging from their position of owning all the water flowing through, over and under the reservation and administration over that water, the state should have called off negotiations, and taken the battle into the Montana Water Court Adjudication process.  They instead chose to give in to the U.S. / CSKT demands, and whitewashed their complete capitulation.

HISTORIC FIP DELIVERIES OF WATER COMPARED TO THE COMPACT

For the past several decades, the tribe has controlled all of the project data through the BIA, making it nearly impossible for the Flathead Irrigation Districts to get accurate information concerning historic deliveries of water.  This made it necessary to use the 1946 Walker Report to determine historic use, and to compare it to the Flathead Water Compact.  A copy of the Walker Report can be found here, and an analysis of the data here.

The analysis shows that the Flathead Water Compact deliveries are a meager 1.03 acre feet of water per acre, per year.  Double and triple duties of water will no longer exist, because the compact limits irrigators to a one size fits all amount of water for every irrigated acre within the project.  Also keep in mind this 1.03 acre feet of water is intended for ALL NEEDS, including stock water and crops.

Comparing the one size fits all Flathead Compact water allocation to historic deliveries of water, and depending upon the duty of water on your land, irrigator water deliveries will be reduced by an astounding 20.4% up to 74.1% !

WHY THE 10,000 CLAIMS ARE IMPORTANT TO IRRIGATORS

In 2015, shortly after the Flathead Water Compact was questionably ratified in the Montana legislature, the United States and CSKT filed 10,126 claims covering 2/3 of the state of Montana.

All of the off reservation claims were essentially duplicative, filed by both the United States and the CSKT, and included time immemorial “tribal reserved water rights” for instream flows for fish.

The claims within the historic reservation boundaries that were filed by the United States and the CSKT, had some significant differences between the two parties.  For example:

• The CSKT filed time immemorial claims to all of the deep water aquifers below the area located within the historic Flathead Reservation Boundaries comprising 35.4 million acre feet of water in addition to all of the other claims that are found in the compact. The United States  did not file claims for the aquifers, and instead filed for 1,927 wells with a priority date of 1855 comprising 14,000 acre feet of water.
• The United States filed 1,088 time immemorial claims to wetlands, the CSKT only filed 14.

The most important difference between the filings of the United States and the CSKT is what while the tribe overreached on most other claims, we found within a subset of the United States claims what appears to be a reasonably close determination of  what a true FEDERAL RESERVED WATER RIGHT QUANTIFICATION is supposed to be.

We cannot know for sure why the United States did this, but perhaps it was inserted to cover their legal behinds should the Water Compact be thrown out.

That quantification clearly demonstrates the overreach in the compact.  It shows that the CSKT would have received a water settlement similar to the other tribes in the state of Montana, had the state not exceeded its authority to create “tribal reserved water rights” for the purpose of giving the tribes  ownership and control over all of the water flowing through, over and under the reservation, as well as off reservation waters throughout western Montana. 

SO WHAT DOES THIS HAVE TO DO WITH FLATHEAD PROJECT IRRIGATORS?

The simple truth is that the decades following the Flathead Allotment Act, the tribe walked away from most of its Federal Reserved Water Rights.  This is because the bulk of the CSKT’s federal reserved rights were tied to the Flathead Irrigation Project, and over the years, the tribe sold most of those lands to non-Indian private land owners.

If the tribe’s claims had been properly quantified as they existed in 2012 when the water compact was ratified, it would not have been possible for the tribe to receive more that a few hundred thousand acre feet of water, and they certainly could not have been given a muti-billion dollar settlement for damages as they had demanded for decades. To save face, and to acquiesce to the tribe’s unreasonable demands, the parties to the compact found it necessary to create “tribal reserved water rights,” which provided the massive overreach that the water compact is today. 

The Flathead Water Compact gives the CSKT a do-over if you will, by setting the wheels in motion to eventually cancel any remnants Flathead Allotment Act that still exist today.  The water awarded in the compact that falls within the historic boundaries of the reservation is what the tribe would have received in 1904, before the reservation was opened to settlement.  This is why the Flathead Compact gives the CSKT bare legal title to 100% of project water despite the fact that 90% of the lands served by the project are privately owned by non-Indians.

Remember our discussion above.  In the Flathead Water Compact, irrigators are given a meager 1.03 acre feet of water to meet their crop AND stock water needs.

In the 10,000 claims filings from June of 2015, the United States filed claims for the following irrigation classifications:

Type	Volume of Water in acre feet	Acres	acf per acre
FIP Irrigation *	378,904	136,102	2.78
Historic Irrigated Acres	94,293	31,954	2.95
Future Irrigation	115,319	44,852	2.57

These three categories of claims represent an average acre feet of water per acre of 2.76 compared to the 1.03 acre feet per acre “granted” to irrigators in the Flathead Water Compact. 

Why would the tribe’s claims as filed by the United States in 2015 include nearly two times more water per acre than the amount the United States agreed to for non-Indian irrigators in the 2015 Flathead Water Compact?  

Surely the United States via its Bureau of Indian Affairs knows the real figures for historic uses of water……..

Helpful Resources:

•  Here is one FIP abstract filed by the United States in the 10,000 claims. It is claim number 76L 30079406, for Mill Creek  Reference the highlighted information on page 2 of the abstract as proof to confirm the acre feet per acre used by the United States that is included in the table above.
• Montana Water Court Adjudication Guidebook, discusses the process of filing objections and what happens afterward including the process of discovery and other steps in the process.
• Montana Water Court Legal Resources Page
• Water Rights Adjudication Rules
• You can also do a search for your water rights that are in the DRNC database along with a copy of the abstracts and other pertinent documents on file with the DNRC.  DNRC Water Rights Database Query

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