© 2023 Concerned Citizens of Western Montana
There are times when you see legislation that gives you a knot in the stomach, because its intentions are so obvious that they are laid bare for anyone who cares to see. Such is Senate Bill 461, introduced by Senator Dan Salomon.
We were recently made aware of Senate Bill SB461 titled Revise Irrigation District Tax Collections that is working its way through the Montana Legislature. It passed third reading in the Senate on March 3rd, and is now headed for the House.
Has the Flathead Compact Created Another Jurisdictional Mess?
We would say that it arguably has.
Salomon’s bill proposes to amend MCA 85-7-2137 pertaining to the Failure to Levy or Collect Tax or Assessments for Irrigation Districts.
While these provisions of Montana law pertain to all irrigation districts in the state, Salomon’s intent with this amendment is to resolve a local dispute between Lake County and the irrigation districts of the Flathead Irrigation Project.
Unfortunately, the ambiguous provisions of the Flathead Water Compact legislation may very well have created another jurisdictional concern that once again brings into question exactly which provisions of the Montana Water Use Act, codified as Title 85, no longer apply within reservation boundaries:
Title 85 Article 7 of Montana state law mandates counties to assess and collect Operations and Maintenance fees on behalf of irrigation districts. Citing the Flathead Water Compact legislation noted above, Lake County has signaled its desire to be relieved of this responsibility and its associated financial burden on the county.
Considering the fact that for nearly a century, Lake County has taken on this responsibility for the Mission, Jocko and Flathead irrigation districts of the Flathead Irrigation Project, this directional shift by the county has created a tremendous amount of angst amongst the irrigators.
A couple of years ago, Lake County started to make the case that the Unitary Management provisions of the Flathead Water Compact legislation impliedly repealed the assessment and tax provisions of MCA Title 85 pertaining to irrigation districts within reservation boundaries.
In a 10/13/22 letter to Attorney General Knudsen the county requested an opinion as to whether Montana’s statutory framework surrounding the state process to collect district fees and assessments applied to Federally owned irrigation projects within the state.
Lake County also asked the Attorney General if:
Title 85 “Chapter 20, Montana’s codification of the Compact, and the Federal MWRPA, either or both, undermine the meaning and applicability of then-existing Montana statutes to such extent the same no longer have any meaning and
1. are impliedly repealed, or,
2. that the Federal government has pre-empted the entire area of FIIP administration, leaving Montana instrumentalities, specifically county treasurers whose territories contain Federally owned and operated irrigation systems using state collection, without any duty to collect such district assessments.”
It’s unfortunate that the Attorney General’s office has ignored the county’s request for clarification. Their letter remains unanswered nearly six months later.
Rather than Seeking Clarification to Resolve a Problem, the Salomon Bill Creates a New One
Salomon’s bill proposes to amend MCA 85-7-2137 pertaining to the Failure to Levy or Collect Tax or Assessment for Irrigation Districts.
MCA 85-7-2137 Currently says:
In the event that for any reason a special tax or assessment provided for cannot or may not be levied and collected in time to meet any interest falling due on any bonds issued, the board of commissioners shall provide for and pay such interest when due, either out of any of the funds in hand in the treasury of the district not otherwise appropriated or by warrants drawn against the next district tax or assessment levied or to be levied. These warrants shall be in addition to those mentioned in 85-7-2001.
Senator Salomon proposes to amend this legislation to read:
If a county treasurer for any reason fails to levy or collect a special tax or assessment provided for in 85-7-2136, the board of county commissioners shall provide for and pay the amount due to the district out of the county treasury. This section does not apply to an unpaid special tax or assessment.
Rather than resolving the County’s dilemma and helping the commissioners get the clarification that they and the irrigation districts need, Salomon agreed to introduce pro-irrigation district legislation that could effectively force Lake County to comply with state legislation that may no longer apply within reservation boundaries.
In this madness, Salomon proposes that if the county does not perform duties that may no longer apply to them, they will be forced “to pay the amount due to the districts out of the county treasury.”
Lake County’s questions are important and should be taken seriously by the Montana legislature as well as the Flathead Project irrigation districts.
Everyone living within reservation boundaries deserves to know which provisions of MCA Title 85 still pertain to them and which provisions no longer apply.
Instead of supporting such ill-conceived legislation the irrigation districts should be asking similar questions about whether the Flathead Water Compact legislation also effectively repealed the provisions of Title 85 that pertain to the creation and management of irrigation districts within reservation boundaries.
In other words, do the districts still exist, or did the Flathead Compact effectively eliminate them as well?
Until Montana provides clarification as to what provisions of MCA Title 85 no longer apply on the reservation, issues such as this will continue to be brought to light.
Please Oppose SB461
Salomon should know better. As a former Water Rights Compact Commission member and vehement Flathead Water Compact supporter, he surely knows the Flathead Water Compact legislation inside and out.
Perhaps he already has the knowledge to easily answer the county’s jurisdictional questions.
If that’s not the case, as a legislator, surely he can request such clarification from the Attorney General for the benefit of the people he represents.
Has he even tried to do so?
As a legislator who voted for the compact’s ratification in 2015 and participated in its development via his tenure on the compact commission, Salomon should take responsibility for the mess that he helped create, and for starters strive to provide answers to these serious jurisdictional questions.
Instead of proposing a bill that may add to the problem, he should find a more effective solution to assist both the county and the irrigation districts. For example, shouldn’t the Bureau of Indian Affairs incur the cost for the billing and collection of their Operation and Management fees?
Lake County did not create this jurisdictional problem. The county is simply trying to figure out how it’s supposed to deal with it.
If a legislator can coerce the county to comply with a law that may no longer apply to them, what coercive tactics can he legislate against the rest of us?
Oh of course, the Flathead Compact, wholly supported and vocally endorsed by Salomon already did that.
We the people need to be prepared for many more SB461 type band-aids to come, one of which we believe is Steve Fitzpatrick’s SB72 to Revise Judicial Administration of Water Rights that is also in the process of being transmitted to the House.
Keep in mind, we aren’t even sure whether the water court or the water rights adjudication provisions of Title 85 apply any longer to those of us living within reservation boundaries.
Please contact legislators in the House and ask them to vote no on SB461, and while you are at it, ask them to also ensure SB72 never sees the light of day.
Here is a list of Legislator emails for your reference.