© 2023 Concerned Citizens of Western Montana
Over the years, one of the biggest obstacles to the truth has been complete tribal control over data pertaining to water and its use that could have helped the state during “compact negotiations”, irrigators with respect to understanding and protecting their historic uses of water, or even the identification of successors in interest to allottees (Walton water rights holders) living within the Flathead Reservation’s boundaries.
Such data should have been part of due diligence work of the compact commission, however the record shows that the tribe used their control over water data as a means to exert control over the compact negotiations and upon the irrigators on the Flathead Irrigation and Power Project.
In its own turn, the compact commission then withheld from the public, critical information about what the state had actually ceded to the U.S./ CSKT (no quantification), and more importantly, what if any water remains in western Montana for the use of the 360,000 people residing here.
We believe that such omissions by the state make it safe to say that there is no water left for existing uses of water, and certainly there will be no new and future uses of additional water.
We are living in a time where we can no longer afford to take the word of “authorities” such as state officials and agencies, our congressional delegation and elected officials, or the compacting parties, who have deceitfully and fraudulently developed their own revisionist history to rationalize Montana’s water compact concessions.
It would almost seem that distinct groups and organizations are working in concert to not only ensure there will be no future growth and development in western Montana, but also to restrict and reduce existing uses of water so as to make the land less productive and to diminish its value.
We should begin thinking of Montana’s water as a river of gold flowing out of the state and into someone else’s pocket.
Avista Claims on the Clark Fork River
Currently Avista has four very substantial and overreaching hydropower water rights on the Clark Fork River for the Thompson Falls and Noxon Rapids dams as follows:
Source: DNRC Water Rights Database 11/2023
As of November 2023 a whopping 84% of water users in the Clark Fork River basin have water rights that are junior to these Avista claims.
Montana’s Headwaters were targeted by the U.S. long ago
On February 20, 1951, the Washington Power Company, now known as the Avista Corporation, filed a 35,000 cfs water right located at Noxon Rapids on the Clark Fork River for its proposed Cabinet Gorge Dam in Idaho.
According to Montana’s then governor John Bonner, the dam was to be built at the emergency request of the Defense Power Administration of the United States in the interest of the National Defense Program.
This one water right exceeds the flow of the Clark Fork River all year round with the exception of about 30 days of the year. Coupling that claim with an additional 15,000 cfs claim added in 1974, the combined 50,000 cfs claim exceeds the flow of the Clark Fork, for all but 7-10 days in any given year.
Montana was aware that this serious issue was headed its way, and in January of 1951 it pre-emptively passed legislation giving current and future domestic and irrigation (consumptive) uses of water in Montana’s Clark Fork River basin priority over the Avista hydropower water rights.
85-1-122. The waters of the Clark Fork River may be impounded or restrained within the state of Montana for a distance not exceeding 25 miles from the Idaho-Montana boundary line by a dam located on said river in the state of Idaho and constructed by any person, firm, partnership, or corporation authorized to do business in the state of Montana. Any present or future appropriations of water in the watershed in the state of Montana for irrigation and domestic use above said dam shall have priority over water for power use at said dam. History: En. Sec. 1, Ch. 3, L. 1951; R.C.M. 1947, 89-856.
Upon signing the bill, Governor John Bonner made an official statement asserting Montana’s right to protect domestic and irrigation and consumptive uses of the water of the state of Montana for its citizens: An Act to Impound and Restrain within the state of Montana, the waters of the Clark Fork River.
This legislation wasn’t the only law passed in Montana for the protection of its waters.
In 1921 the state passed legislation forbidding the diversion, control, impounding or restraining of waters within the state for use outside thereof, except pursuant to a petition to and an act of the legislative assembly of the state of Montana permitting such action.
Codified under MCA 85-1-121, it was deemed to be unconstitutional and was repealed by the Montana legislature in 1983,
Note: This repeal came just two short years ahead of the publication of the 1985 EQC water marketing final report to the Montana Legislature initiated in 1983 upon the repeal of 85-1-121.
It is unclear why the DNRC did not denote the 1951 state law restrictions and limitations on the Avista claims that are on file in the state’s database. They are certainly aggressive in denoting restrictions on any uses of water by the people of Montana, including subordination of their water rights to federal and tribal reserved water rights.
It is yet to be determined what Avista’s plans might be with respect to challenging the 1951 law so as to prevent any new uses of water in western Montana.
Flathead Compact; Adding to the Avista Problem?
As if the Avista problem wasn’t enough, the DNRC’s Reserved Water Rights Compact Commission awarded to the U.S. / CSKT artificially created time immemorial water rights, also on the lower Clark Fork River at a flow rate of 5,000 cfs (3.6 million acre feet of water per year).
We can’t help but be curious as to why Montana would agree to award these illegally created water rights against the same water as the Avista rights.
Could it be because the compacting parties know that the 1951 law will subordinate Avista claims in lieu of new and existing domestic and irrigation uses of water, but this will not be the case for the CSKT “aboriginal” claims? ABSOLUTELY!
No matter which way you turn, it seems plausible that the policies of the State and its partners are intended to ensure that as much water as possible flows out of the state, precluding future growth and development in western Montana.
Hungry Horse Water to the Rescue? Not so Fast
A decade ago, we had the pleasure of working with now former state Senator Verdell Jackson, who had the foresight to see and understand the negative effect that the state-based hydropower water rights held by Avista could have in the Clark Fork River basin
In December 2006 the Montana DNRC denied an application for water use made by Thompson River Lumber Company. The application requested to appropriate 250 gallons per minute (gpm) up to 400 acre-feet of water per year from the Clark Fork River. The proposed use was power generation (non-consumptive).
Avista was able to successfully defeat this claim, the Montana Water Court ruling that the applicant failed to prove by a preponderance of the evidence that prior appropriators (Avista) will not be adversely affected by the proposed (non-consumptive) appropriation.
As a result of this ruling, Senator Jackson went into action. He carried four bills into the 2007 legislative session hoping to further subordinate hydropower generation water rights to domestic and irrigation water rights, but all of them died in committee.
He also sponsored SB 376 , authorizing the DNRC to contract with the United States for the use of water held in federal reservoirs for the purpose of future growth and development. It was overwhelming approved in the legislature and was signed into law on May 3, 2007. See MCA 85-2-141.
Leveraging upon Senator Jackson’s 2007 legislation, by 2010 the DNRC had requested a contract with the Bureau of Reclamation for 100k acre feet of water stored in Hungry Horse to meet additional municipal and industrial (M&I) consumptive uses in the Kalispell region for a 50-year period.
Coincidentally, the CSKT had also requested a block of Hungry Horse storage to become part of their water compact water right.
We know that the tribe got their Hungry Horse water in the compact, and while we can’t be certain, we believe it is likely that the 229,000 acre feet of water allocated to the tribe in the compact includes the 100,000 acre feet of water that the DNRC attempted to contract in 2009-2010.
That gives a whole new meaning to this excerpt from the tribal council minutes:
TRIBAL COUNCIL MINUTES 06/21/12: Rhonda Swaney and Mary Price legal department presented for consideration a letter addressed to Chris Tweeten, Reserved Water Rights Compact Commission Chairman, regarding the state of Montana’s proposal on state access to 11,000 acre feet per year of water from Hungry Horse Reservoir. Mary wanted to confirm that there is no interest to provide water for new development for residential, municipal or commercial uses, and the tribe shall retain the right to approve or deny any request from the state to sublease.
It’s pretty clear that the compact commission gave the Hungry Horse water that was supposed to benefit future growth and development in western Montana to the tribes in the compact.
It is also clear that the DNRC and Compact Commission essentially negated Senator Jackson’s bill to help the people of western Montana.
Something else is bothering us about this.
In 2006, Avista objected to a very small non-consumptive water right use and won. Why hasn’t Avista objected to the CSKT compact water right on the Clark Fork River, especially since the water right is fraudulent?
We suppose it is because the financial beneficiaries of the use of the waters of the Columbia River Basin work together to cover one another’s backs. The tribe’s “time immemorial” water flowing down the river has the potential to increase the amount of water that flows through Avista’s turbines.
We can’t know for certain what if any “financially beneficial deals,” memorandums of understanding, or “gentleman’s agreements” may exist between the state of Montana and its agencies, with corporations like Avista and the CSKT, Energy Keepers, or even other hydropower locations outside of the state.
One must also ask why Montana’s Department of Natural Resources and Conservation wouldn’t be fully on board with protecting domestic, irrigation, and even other non-consumptive uses of water? Then again we see the DNRC’s unbridled advocacy of the Flathead Water Compact serving a similar preclusive purpose as the Avista claims.
This also is linked to our reports related to state agreements with Bonneville Power and other federal agencies that are funding Montana’s aggressive conservation easement and land acquisition programs that are rapidly sucking up the land and water rights throughout western Montana and other parts of the state.
We also cannot know which members of the state and federal “political class” have financial interests or possible investments in projects pertaining to the use of the state’s water, but the latest Daines push to streamline the approval of new dams shines some light on where this may be going.
One thing is for certain. If there is money to be made, you can be certain that the politicos are heavily invested in it one way or another. The more water they are able to move downstream, the merrier the bank accounts of the profiteers becomes.
In the context of the Flathead Water Compact, and the Avista water rights clogging the water arteries of western Montana and preventing its use by the people whose lands it is appurtenant to, rest assured that SOMEONE IS FINANCIALLY BENEFITTING to the detriment of the people who need it for subsistence and their livelihoods.
Water for me, but not for thee.
References:
- Daily Interlake: Water Ruling: Kalispell Legislator Sees a Silver Lining
- Whitefish Pilot: Avista is a bad neighbor
- Whitefish Pilot: Jackson Begins Water Battle
- Is Montana being Federalized via Conservation Easements and Land Acquisitions?
Western Montana Water Rights 
May we use MCA 85-1-122 in our amended objections?
I would say go for it. When it ratified that law, Montana stated its clear intentions to protect existing and future uses of water for the Clark Fork River basin, and subordinated the Avista Hydropower rights. The compact essentially negates that protective intent by unlawfully awarding the tribe a 5000 cfs or 3.6 million acre feet of water with a time immemorial priority date.
Your water rights are protected at this point in time from what was considered to be the biggest threat to beneficial uses of water in the Clark Fork River Basin. If the compact is allowed to stand, all of those water rights, particularly irrigation uses, lose that protection.
What is powerful about MCA 85-1-122 is that it also protects “future uses” of water. WITH THE COMPACT, THERE WILL BE NO FUTURE USES OF WATER ON THE CLARK FORK RIVER BASIN.