©2018 Montana Land and Water Alliance
Under contract with the United States, the Flathead, Mission, and Jocko Valley Irrigation Districts, through their water users, paid off the construction costs of the Flathead Irrigation Project, including the power system of Kerr Dam and the power distribution infrastructure in 2004. The United States placed a lien on all private lands within the project as security until the project construction costs were paid. The complete system payoff was completed in 2004 as provided in this Federal Register Notice of 2006.
From the irrigation district contracts:
All construction costs heretofore or hereafter incurred by the United States on account of the irrigation system of the project ( after deduction of the amounts discharged through the application of the net power revenues accumulated on May 25,1946, as provided in section 18 of this contract) and all uncancelled operation and maintenance costs heretofore or hereafter incurred by the United States on account of the irrigation system of the project shall be, and are hereby made, a first lien under the Act of May 10, 1926 (44 Stat. 453,464-466), against all lands within the project, including those not yet designated as irrigable, and the existence of such lien is hereby recognized and acknowledged by the District.
and, upon project repayment
After the total amount covered by such lien which is chargeable against any particular farm unit or other separately bounded landholding has been paid, and all rights of the United States to incur costs, impose assessments, enforce charges or collect repayments with respect to the lands included in such farm unit or landholding have terminated, the lien against such parcel of lands shall be released by the Secretary of the Interior, and a recital of the existence of the lien shall be made in any patent or other instrument of title issued by said Secretary prior to such release.
With the information on the Federal Register Notice, and this contract language, it is possible for any individual to now file for the release of the US irrigation lien on your property. The irrigation districts of course may also write and request the release of the liens, but know that you as an individual can do that right now.
What you need to write your letter to the Secretary of the Interior is
- Your location within Irrigation District, how many acres irrigated by the Project, and the legal description of those acres (township, section, range)
- Language of irrigation district contract (above), or simple notice that “according to the irrigation district contract”
- Copy of Federal Register Notice of 2006 (above)
- Copy of portion of deed to land that indicates the land has the US irrigation lien
Presto! Your lien release letter. Release this lien requires a proactive approach on your, and hopefully the District’s part. Talk to your friends and neighbors–spread the word.
Attached HERE is a sample individual lien release letter for your use!
Required Project O&M Turnover to FIP Landowners
According to the contracts between the United States and the three irrigation districts, two things are supposed to happen when the project construction costs are repaid: release of the liens, AND the passage of the management and operation of the Flathead Irrigation Project to the landowners within the project:
…then the management and operation of the project shall pass to the owners of the lands irrigated thereby, to be maintained at their own expense under such form of organization and under such rules and regulations as may be acceptable to the Secretary of the Interior…
The 1908 amendment to the Flathead Allotment intended that the federal irrigation and power project was to serve everyone, not just the Tribes. In 1924, 80% of the landowners in the Flathead Irrigation and Power Project were non-Indian. In 2018, 90% of landowners are non-Indian.
The first attempt to achieve this transfer likely began in 2006 and culminated in a transfer agreement in 2010, the “Cooperative Management Entity” (CME). The CME consisted of a disproportionate representation of project landowners, with the Tribes and majority project landowners were appointed to 50% membership each, rather than in the 90%-10% ratio. While the CME was able to accomplish a great amount of work in the few years it operated, and got the BIA to operate the project in a manner properly protecting all interests, it was destroyed by the pro-compact components in 2013 when the two smaller districts withdrew from the Flathead Joint Board of Control (FJBC).
On a side note, in 2014 the FJBC reconvened and began working on regaining project operation and management, but the same people attacked and destroyed the FJBC again. Disingenuously, these people now want to “reconstitute” the FJBC. Lucy hold the football for Charlie Brown, anyone?
But, with all due respect to the CME, was it really a transfer of operations and maintenance? For example, the membership did not adequately reflect the contract holders with the United States who paid for the construction of the project–aka the majority landowners–and favored the Tribes who unabashedly always express their disdain for irrigation.
More importantly, what about the lien release? The FJBC negotiator of the CME was one Alan Mikkelson, who negotiated without legal counsel. Did he forget the liens?
…and the Compact?
How convenient for the Compact Commission, the Attorney General, Governor, the Tribes, and the United States to ignore the law, pretending that these established legal relationships and realities don’t exist! And how convenient for Senator Tester to just turn the entire federal irrigation project infrastructure over to the Tribes, along with Montana’s give away of the water rights?
Its time to change the dialogue and frankly, to hold the United States accountable to all of the promises it made to all its citizens. Release the liens, and turn the project management and operations over to the landowners!