© 2023 Concerned Citizens of Western Montana
We have often said that there has been nothing good faith about the Flathead Water Compact.
The unlawful, questionable, and arguably fraudulent government processes that were used by the compacting parties to negotiate, create, ratify, implement, and now to adjudicate it, speak directly to the level of commitment that the United States, Montana and CSKT have to achieve the federalization of Montana’s water under the guise of a federal reserved water rights settlement.
Montana’s leadership is wholly responsible for agreeing to a settlement that
- Awards all of the water flowing through, over and under the Flathead Reservation to the United States / CSKT
- Awards time immemorial priority, non-federal reserved water rights to the United States / CSKT outside of the Flathead Reservation
- Delegates the state’s constitutional authority for the administration and ownership of water resources to an entity controlled by the CSKT, and
- Enacts an unlawful taking of water rights within the federal Flathead Irrigation Project (FIP, FIPP).
The entirety of the Flathead Water Compact is a complete repudiation of the 100-year-old legal framework for federal reserved water rights under the Winter’s Doctrine, where the water rights are supposed to be quantified based upon (1) the determination of the purpose of the (Flathead Indian) reservation, and (2) determination of the volume of water necessary to fulfill the purposes of the reservation.
Despite the fact that the compact awards the United States / CSKT time immemorial rights to more than twice the amount of water that exists in western Montana, not one drop of water awarded in the compact is designated for individual tribal members, allottees, or for the needs of the CSKT tribal government corporation.
Everitt Foust and the 1982 Filing of FIPP Water Rights
We’ve often tied the compact’s birth date to the tribe’s 2001 proposal and the 2004 hiring of attorney Jay Weiner to close the deal, however the reality is that a significant shift took place well before that in the early 1980’s. A directional shift away from federal reserved water rights coincided with the Water Court’s April 30,1982 deadline for filing pre-1973 water rights with the Department of Natural Resources and Conservation (DNRC).
In 2015, we met with Everitt Foust (now deceased) and recorded his statement concerning the events that took place with respect to the filing of Flathead Irrigation and Power Project (FIPP) water rights with the DNRC in 1982.
In the months approaching the 1982 Water Court Deadline, articles were published in the local newspapers telling irrigators that there was no need to file their project water rights with the DNRC, because the project would be filing project claims for the ongoing beneficial use of project water by irrigators.
Despite these assurances that the Flathead Project / Bureau of Indian Affairs (BIA) would file the project water rights, the Joint Board of Control and irrigators had cause for concern that the BIA would not file the project claims in good faith by the Water Court mandated deadline.
In our recording of his statement, Mr. Foust, who was chairman of the Flathead Joint Board of Control in 1982, conveyed to us the story of how he worked with loyal project staffers to ensure that a complete filing of the project water rights was delivered directly with the DNRC in Helena on March 12, 1982, ahead of the April 30th filing deadline.
Mr. Foust’s mission was to preserve the irrigators water rights, so he left nothing up to fate, and personally delivered them to Helena himself.
It was an amazing story to hear from the man himself, but what was striking to us is the fact that the irrigator’s knew in their heart of hearts that the project water rights were at risk, especially if left up to the devices of the Bureau of Indian Affairs. and by extension, to the CSKT.
While we’ve known about the Everitt filing of claims, until yesterday we’d never personally seen evidence of them.
When looking at the DNRC Water Rights Query Database, we came across an option under the ADVANCED WATER RIGHTS SEARCH tab that we’d hadn’t seen before.
Under index type we saw an option called EXISTING LEGAL DEMANDS. This instantly made us wonder if the US / CSKT 10,000 claims could be out there so we did a search for Basin 76L as noted below:
While we did not find the 10,000 claims when we went down the rabbit hole, a list of water rights came up, one of which was 76L 166594 00 for the Flathead, Mission and Jocko Districts.
Voilà! This was a full copy of the Everitt Foust filing!
We immediately clicked on the VIEW button for the Document Image and found the Foust filing along with 22 very detailed project maps.
We downloaded each of the very large files from the DNRC website to make them readily available for irrigator reference and use.
The Foust Filing Documents
These well organized documents support historic water uses for irrigators on the Flathead Irrigation and Power Project. The detailed maps below also appear to have the name of each and every irrigator at that time written onto the map. This information should be able to help project irrigators trace the water deliveries for their property to the water claims listed in the document.
1982 Water Right Filing Document (282 pages)
Map of Flathead Reservation – Districts
76L 166594 00 Water Rights Abstract
Flathead / Mission (Pages 193-211 of the Filing Document above)
- Mission / Flathead District Water Use Right and Map Reference Table
- 01 Polson
- 02 Valley View
- 03 Pablo 1 of 2
- 04 Pablo 2 of 2
- 05 Mission Valley
- 06 Round Butte
- 07 Ronan
- 08 Post
- 09 Post – Moiese 2 of 2
- 10 Post – Moiese 1 of 2
- 11 Post – Mission
- 12 Mission
- 13 Mission Valley 1 of 2
- 14 Mission Valley 2 of 2
Camas (Pages 212-245 of Filing Document above)
Jocko (Pages 246-277 of Filing Document above)
A Warning to Flathead Project Irrigators and Other Water Users
The Foust filing document includes DNRC comments that were later inserted over the years after the Foust filing was submitted. These notes of record indicate that in 1982 the Bureau of Indian Affairs filed two sets of water rights claims for the project: one for the Flathead Project Irrigation Districts, and one for the CSKT. The BIA filing on behalf of the CSKT almost seems prescient in that this is exactly what is in the compact 40 years later.
Although the comment pages in the report indicate claims were filed on behalf of the CSKT, we have not been able to find copies of them on the DNRC water rights database.
We also have to question for what purpose would the BIA file claims for the CSKT? Shouldn’t just one set of claims be appropriate for an irrigation project, and then the project would use that water right for the distribution of project water to be used by all irrigators owning lands located within the project regardless of their political status or race?
As it turns out, in 1982 Mr. Foust and others were correct in their assessment of the Bureau of Indian Affairs and the CSKT. What they didn’t realize at the time was that the state of Montana, and our congressional delegation would also play a role in the theft of irrigators water. The Flathead Compact has turned the fears of these 1982 irrigators into their worst nightmare.
We are making the Foust filing information available because Flathead Project irrigators need to understand the precarious situation they are in with respect to their water rights.
The Foust documents tie the project water rights that are appurtenant to your irrigated property to bona fide and very real irrigation project water rights, not the artificially created tribal reserved water rights in the compact that will serve to strip all irrigation water rights from your land.
IT IS IMPERATIVE THAT PROJECT IRRIGATORS UNDERSTAND THAT THEIR WATER RIGHTS ARE BEING ADJUDICATED IN THE CURRENT WATER COURT PROCEEDING FOR THE FLATHEAD WATER COMPACT DECREE. This is because the Flathead Compact awards 100% of Flathead Irrigation Project water to the United States in trust for the CSKT.
The compact abstracts then show that the CSKT then will “graciously” mete out a one size fits all amount of THE TRIBE’S WATER to irrigators. The water meted out is somewhere between 20-74% less than historic use depending upon your district and the duty of water historically applied to your property.
There is every reason to believe that if the Water Compact is approved by the Montana Water Court, the court will effectively have adjudicated and diminished Flathead Project water rights without irrigators ever going through a bona fide adjudication of the project water rights.
The Flathead Compact Decree will adjudicate the Flathead Irrigation Project water rights because the compacting parties agreed to give the tribe bare legal title to 100% of project water.
WHAT THE HELL IS WRONG WITH MONTANA?????????
By dedicating more than 90% of project water to fisheries in the compact, the largest irrigation project in the state of Montana is on the precipice of being converted to a fisheries project. The adaptive management provisions in the compact will ensure that the 90% figure will increase over time as irrigator uses are ratcheted down even further.
While this article is directed mainly to Flathead Irrigation Project irrigators, we ask all water users in western Montana to keep in mind that there is reason to believe the same may also be true for other water users throughout western Montana.
The way the compact is written makes it difficult if not impossible to ascertain its impacts on water users.
We also believe that the compact will significantly diminish and / or eliminate the valuable and special attributes of the significant number of Walton and Secretarial Water Rights owned by a large number of water users within reservation boundaries.
If the compacting parties are able to effect a taking without compensation on irrigators, who’s to say that the compact won’t’ have a similar negative effect for other western Montana water users?
By sharing this information with you we are hopeful that Mr. Foust’s valiant effort to protect the Flathead Project water rights from falling into the hands of the CSKT will not be wasted.
We need more heroes like Everitt Foust that are willing to stand up against the massive theft of water and property rights that are represented in the Flathead Water Compact and other such overreaches by our respective governments.
Here are other Bureau of Reclamation related documents that irrigators might find also helpful for additional context:
1989 Tarr Memo – Filing of Water Rights Claims in General Stream Adjudication
1993 Forfeiture of Rights to Federal Reclamation Project Waters