A $2.4 Billion Dollar Distraction?

© 2018 Concerned Citizens of Western Montana

In 2013, we asked if the Irrigator Water Use Agreement in the water compact was a Red Herring, used to get irrigators fighting for their water while ignoring the dangers of the water compact in its entirety.

Five years later, we know so much more than we did then, including the contents of the Federal Water Compact Settlement bill S.3013 designed by and for the CSKT to gift to themselves so much more than all of the irrigator’s water.  Heck that was just a drop in the bucket.

It would seem that the latest distraction is the $2.4 billion dollars of settlement money included in S.3013.  It equates to a whopping $467,000  per tribal member, but with the stipulation that “No portion of the Fund shall be distributed on a per capita basis to any member of the Tribes.” 

While the money itself is an egregious pilfering of the federal treasury, the language in this bill literally attempts to give away the farms:

The Water Compact (neatly inserted into S.3013) provides for:

• The federalization / tribalization of most if not all of the water, both on and off the reservation in western Montana
• Montana’s relinquishment of its constitutionally mandated jurisdiction over every drop of water within reservation boundaries to a tribally controlled board that will be unaccountable to the state, or the federal government, and immune from suit.
• Tribal ownership of 100% of irrigation project water and reducing water deliveries to irrigators by 40-70%.  It literally turns largest irrigation project in Montana into a fish farm allocating 11% of project water for irrigation, 89% for fish.

Wrapped around the water compact package, is the Jon Tester federal “settlement”, heaping on even more goodies:

• $2.4 billion in settlement funds “earmarked” for various purposes.
• Tribal ownership and complete control over the Flathead Irrigation Project despite the fact that 90% of the lands it serves are privately owned
• The ability to build massive new Bureau of Reclamation dam infrastructure on tribal lands along the Flathead River, free of charge to the CSKT Inc.

What began as an exercise to summarize what the Tester bill proposes to spend the $2.4 billion on, ended with the realization that words really do matter, and it is the language of the bill itself that you can see where the real agenda is hidden.

In other words, while the $2.4 billion dollars in and of itself is astounding, it pales in comparison to the value of the water resources and the “non-monetary settlement” infrastructure assets that Jon Tester proposes to award to the Confederated Salish and Kootenai Tribes under the pretense of a “federal reserved water rights settlement.”

(A recap of the monetary and non-monetoary portions of the settlement can be found at this link):  S3013 CSKT Settlement Summary

The water compact was merely a means to an end:  the federalization of our clean abundant water, and giving one tribe the monetary and infrastructure assets necessary to achieve their stated goal of restoring all lands on the reservation to tribal ownership:

By sponsoring and introducing a bill that provides for such massive federal and tribal overreach,  Jon Tester makes it clear that he has chosen to represent a more complete federalization of western Montana through the advancement of the agenda of the CSKT Special Interest and federally chartered Tribal Corporation.  He has not represented the interests of western Montana or the rest of the state.  Instead he chose to represent the federal government and the thriving Montana Swamp.

It’s unfortunate that Montana’s “leadership” gave the tribes and federal government the water compact vehicle necessary to extort vast riches from the federal treasury to the detriment of so many, including the tribe’s own membership.

The roadmap has been carefully laid out and it is being revealed, one document, one bill, one lawsuit at a time.

We would be remiss if we didn’t mention that if this bad water compact is ever ratified by Congress, all of the tribe’s other claims, including the 10,000 claims filed over 2/3 of the state of Montana and other related lawsuits will be dismissed “without prejudice.”  No doubt this will be the springboard for generations of more litigation by what will by then be a very wealthy tribal corporation entity that trumps all else.

Page 62 of the compact dated 01/12/2015 says:

“the United States, the Tribes, and the State shall execute and file joint motions pursuant to Rule 41(a), Fed.R.Civ.P., to dismiss without prejudice any and all claims of the Tribes, Tribal members, and Allottees and any and all claims made by the United States for the benefit of the Tribes, Tribal members, and Allottees in United States v. Abell, No. CIV-79-33-M (filed April 5, 1979). The case may only be resumed if either the State or the Tribes exercise the rights each holds under Article VII.A;”

What a joke.  This compact has been bad news from the start, and is a final settlement of nothing.

In its wake will be a federal special interest tribal corporation flush with federal taxpayer money, the ruin of our agricultural economy, and a cloud forever hanging over the water and property rights of 2/3 of the state of Montana.

 

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The Governor and Water Rights

©2016 Concerned Citizens of Western Montana

The context for the concern discussed in our post Getting Your Water Rights in Order is that Montana’s Governor, Attorney General, and Department of Natural Resources and Conservation seem determined to negate the property rights of Montana citizens and give our water resources to the federal government, under the guise of an Indian water settlement. Let’s not forget that Montana’s Congressional Delegation, specifically Steve Daines, intends to turn over our public lands and national forests to the Tribes under the guise of protecting us from environmental lawsuits.

We are grateful to the Western Ag Reporter for publishing the article below by Dr. Kate.

October 13, 2016

The Governor of any state, along with his Attorney General, has a lot to do with how that particular state protects the property rights of its citizens.  If those elected officials are “captured” by any one or combination of special interests, the economic, moral, property rights, and institutional health of that state can be degraded.  For the last twelve years in Montana, we have had just exactly that—an increasingly obtuse state government led by individuals who have been captured by the special interests of Indian Tribes, environmentalists, big government, and especially in the last four years, the globalist agenda of the democrats.

Perhaps damaged the most by Governor Bullock and his “republican” Attorney General are the water rights of individuals and the ownership of water across the state.  The Governor’s picks for the head of the Department of Natural Resources and Conservation and those critical positions in the water rights bureau, fully captured by the instream flow-federalize-environmental-fish-tribal lobbies, have done much to undermine private property rights to water, the Montana Constitution, and the institutions which are supposed to protect those rights.

As an example, let’s take the Montana Constitution’s directive that all pre-1973 water rights are “affirmed”…or “grandfathered in”.  That literal meaning of the Constitution indicates that those water rights are to be affirmed as is, according to documented historic use.  But the Governor’s agencies have practiced reducing the volume of those pre-1973 water rights in many cases without reason or explanation.  This is especially true of agricultural water rights subject to the increasingly arbitrary DNRC water volume reductions.

The Governor’s appointments for critical natural resource industry positions, like water, minerals, environment, and fish, wildlife, and parks say everything about the direction the Governor wanted to take the state in.  Under Attorney General and now Governor Bullock, the direction that Montana has been taken in is to prevent people from enjoying and using their property rights, to increasingly federalize Montana’s land and water resources, and to give away our public lands to special interests instead of keeping them in state hands.  The Governor’s vision follows the democrat’s strategy nation-wide: federalize/ globalize Montana’s land and water, eliminate private property, and let the environmentalists dictate all natural resource strategy. Rural cleansing, anyone?

It is time to clean house and get our priorities back on track. The rein of Bullock needs to end so we can stop the bleeding of Montana’s resources into the hands of special interests.  Perhaps with a new Governor, the next Attorney General would begin to remember the directives of the Montana Constitution and act accordingly by protecting property rights.

Tester Showboats on Memorial Day

©2016 Concerned Citizens of Western Montana

Information learned from a comment to our previous post indicates that some politicos have characterized Senator Tester’s action in introducing the CSKT Compact as “showboating”.  Interestingly, Tester chose to showboat a Compact that is fatally flawed and still in legal limbo.  There is nothing to introduce to the Senate. And since the very act of ignoring the law, ignoring letters that have been written to him from thousands of Montanans including state legislators, and the fact that the legislature’s compact vote may have been unconstitutional and is in court, we wonder what part of “failed, illegal, hung up in court, constitutionally compromised compact” Mr. Tester doesn’t understand?

But wait, there is more.

We believe that the action by Tester was planned, and was to have been the “culmination” of a series of events that now seem completely connected:

• The reinstatement of FARM “Montana Compact” propaganda blitz through radio, flyers, newspapers, and phone calls, seeking through surveys false “consensus” that “the CSKT Compact was supported by the majority of Montanans’
• The on-going CITT meetings held at a non-neutral Tribal facility for the purpose of dangling out money for irrigation rehabilitation if only they could agree on the Compact
• The intentionally compromised Lake County FJBC election, with known compact proponents having undue and potentially illegal influence on county election officials
• The actions of two sitting FJBC commissioners to attempt to seat pro-compact commissioners, “elected” in a tainted election, and establish a new Joint Board of Control, with the usual compact proponents attempting a coup of the Flathead Irrigation District
• The failed attempt to amend the FJBC resolution to hold a new election as soon as possible with a provision calling for the recognition of the tainted election and seating of newly “elected” commissioners
• Finally, the lawsuit filed by compact proponents against the FJBC, attempting to force them–through a  temporary restraining order– to recognize a flawed election and seat the newly “elected” commissioners.

All of these failed actions were supposed to have been successfully completed in time for the Memorial Day showboating of Tester’s “introduction of the CSKT Compact to the senate”, incidentally the wrong place to introduce an Indian water settlement which has to go through the House first.  But hey, Tester can copy Chas Vincent’s approach to dissing by-passing the House, right?  Or maybe “I’ve read all the jurisprudence Chas” advised him to try it this way?

So he launched the sinking ship on Friday anyway, without these “pieces”  or “planned results” of the propaganda and agitation  campaign being in place.  Notably, Tester set off from shore at the start of the Memorial Day weekend.  You know, the weekend we are supposed to especially remember and honor the sacrifices of those who fought, served, and died to protect our liberty. People have died to protect even the job of people like Tester who are supposed to do America’s business.

In one fell swoop, Tester’s introduction of the flawed, non-existent CSKT Compact  dishonors the sacrifice of so many who fought and died by completely ignoring the rule of law, the legislative process, and representative government.

This is typical behavior of politicians who put their own interests above American interests; who serve single constituencies and help themselves.

But, that boat of deceit won’t float anymore!  We Americans have caught on to the scam, Montanans know that the CSKT Compact is fatally flawed, and that Senator Jon Tester’s actions are an empty political gesture that serves no one.

With no facts to prove justifiable support for the CSKT Compact, or to prove it helps anyone else but the United States, the CSKT Compact propagandists have settled for promoting a myth that it is “good for Montana” and “good for farmers”.  But consider these words by JFK in 1962:

The great enemy of the truth is very often not the lie — deliberate, contrived and dishonest — but the myth — persistent, persuasive, and unrealistic. Too often we hold fast to the clichés of our forebears. We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.

The entire CSKT Compact is based on opinion, not fact.  Starting from the first paragraph.

It’s Not About Indians, It’s About Federal Overreach and Control

© 2015 Concerned Citizens of Western Montana

Nearly four years ago, a wise and concerned irrigator warned us about the CSKT water compact.  He simply said that if we made the battle about race, we would not have his support.  That was not a message to be taken lightly, nor has it ever been forgotten.

Unfortunately recent news coverage places far too much emphasis on race, we believe because race is a place that the media and the federal government, and even the state of Montana (particularly the Compact Commission) have wanted people to go.  The powers that be understand that it is a losing argument and is the fastest way to take down an opposing point of view.

So how do you keep race out of the debate, when the nature of the water compact is about federal reserved water rights for the Flathead Indian Reservation?

Simple.  By sticking to the facts of the compact and the overreach of the federal government that this compact represents.  And you stay with that strategy beginning to end, through the legislative process and through the courts.

Over the past few years, we personally have taken a lot of heat from people on both sides of the issue because we did not allow ourselves to get caught up in the red herring of playing the race card.  I can honestly say that standing firm on our strategy to stick with the facts was worth every uncomfortable moment.  This includes the moment we saw the legislature aligning to cram the compact down the throats of 360,000 people living in western Montana in order to “save” the remaining 640,000 Montanans from the aggressive threats of the United States and the CSKT.

Since this blog began in 2012, we have been contacted by many organizations outside of the state of Montana who are fighting for their water because of the overreach of the federal government, using whatever means necessary.  Our situation simply has to do with an Indian Reservation, but many others do not.  In other words, it’s really not about the Indians, and it’s not about race.  It’s about the state of Montana ignoring its sovereign duty to its citizens, and providing the federal government with the control necessary to restrict individual freedom and property rights for a large percentage of its citizens.  It is also about federal overreach, the destruction of agriculture and violations of the public trust.

In the wake of significant United States losses in the United States vs. New Mexico case in the 70’s, the federal government realized that it was more efficient and effective to “negotiate” water settlements.  Water-rich Montana was ripe for the picking.  No matter how good the intentions were of the legislators who established the compact commission in 1979, they created a corruptible avenue that ultimately relinquished to the United States ownership and control of most of the valuable water resources of the state of Montana.

So why is the race card now being pointed out with respect to the water compact?  Because it is the only argument left to those whose mission it is to destroy any opposition to the water compact that remains.  Unfortunately for them, there are many compact opposition groups working throughout the state, and they are not all connected.

Proponents of the compact, try as they might to take down the opposition by painting a broad brush of racism, will not succeed.  This is because there are many that understand the tribe is only one small element, not necessarily a critical one, and most likely is an irrelevant factor in the equation for federal government control.

So with all that being said, we will continue to stick with the facts as we move through the legal system, and work to hold accountable those people of the state of Montana who supported the depredation of the property rights of citizens whose only “mistake” was to think they are protected by the constitution and as such have been playing by the same rules as three hundred million other people in our country.

Water Compact is Wrong Option for Montanans

Note:  Our thanks to Senator Verdell Jackson for this article in today’s Daily Interlake.

Like most proponents of the Salish and Kootenai water compact, Rick Hill in his recent letter to the editor used misconceptions and threats to support the compact because there is no legal basis for turning control of water use in Western Montana over to the tribes.

Hill first states that the Hellgate Treaty grants rights to claim water for the Confederated Salish and Kootenai Tribes both on and off the Flathead Reservation. The five-page treaty in fact does not mention water or water rights.

With the following language, Article III of the treaty gives, “the right of taking fish at all usual and accustomed places, in common with citizens of the territory.” This off-reservation fishing-right language is only found in the treaties in which Gov. Isaac Stevens was involved.  The Hellgate and Judith River Treaties are the only “Stevens Treaties” in Montana. No settlement, litigation or case law has been able to stretch this language into an off-reservation water right.

The Salish and Kootenai compact would be the first and if successful the Blackfeet Tribe would likely be next. Their area of hunting and fishing is in the Judith River Treaty and covers about 8 million acres in Eastern Montana, starting at the main divide of the Rocky Mountains and stretching to the Musselshell River. Their compact has not had final approval because it has been withdrawn from congressional consideration at the tribe’s request.

Mr. Hill states that there is nothing in the compact that affects property rights. There are thousands of irrigators both on and off the reservation who would disagree with him. Irrigators on the reservation would lose their state-based water rights and receive a water allocation. A study just completed by Barry Dutton, a water expert, shows the compact cuts the water for the irrigation project by at least 50 percent of the historic delivery. Also, off-reservation irrigators in 11 counties can be ordered to stop using water during low river flows via water rights made out to the federal government in trust to the tribes.  These irrigators lose property value because of the uncertainty of adequate water.

Most of the rest of Hill’s letter deals with the $55 million to be given to the tribes and the threat of thousands of water claims. The irrigation project on the reservation was developed and owned by the federal government. The state of Montana has never had the responsibility to maintain the project and I see no reason the taxpayers in Montana should do it now. That $55 million would go a long ways in defending our state-based water rights against tribal claims.

No tribe has been given off-reservation water rights on their traditional hunting and fishing territory because of the language in their treaties: “The tribes hereby cede, relinquish, and convey to the United States all their right, title, and interest in and to the country occupied or claimed by them.”

How does Rick Hill stretch this language into a water right for the Salish and Kootenai or Blackfeet tribes on their subsistence ranges? —Verdell Jackson, Kalispell

“I’ve Read All the Jurisprudence”

©2015 Concerned Citizens of Western Montana

The non-lawyer Senator claims he has “read all the jurisprudence” related to this water compact, and in it the “Tribes have won everything.”  Excuse me?  Here’s the definition for your consideration:

Jurisprudence: The philosophy of law. Jurisprudence implies creating a body of law and methods for interpreting the law, studying the relationships between law and society, and predicting the effects of legal decisions.~Merriam-Webster

The 300 hours that Chas Vincent says he has spent on the Compact would never allow him to have read the compact and “all the jurisprudence”, let alone all the case law, which we presume he is actually referring to.  Does he honestly claim he can predict the effects and outcome of legal decisions?  And as sitting senator representing the state of Montana, shouldn’t he be reading up on, well,  state law and the Montana and U.S. Constitutions?

There are highly qualified real lawyers, such as those of the Montana Land and Water Alliance, that have more than 100 years experience collectively in water law and Indian law, including 30 years before the United States Supreme Court.  And they do an awful lot of reading, still, for even the narrowest of questions that are asked.

Oh wait… the “300-hour Compact Expert” thinks these professionals would be disbarred if they practiced law in Montana.   Them’s fightin’ words.  Really?  Gee, do you think its because they actually know water law and federal reserved water rights and aren’t buying what he and the compact commission are selling?

Mr. Vincent and the Compact Commission, as well as their lackeys, have to discredit the opposition because of the credibility their arguments have brought to the table.  After all, “that’s the way they do business”.

First, they ignore you.  Then they laugh at you.  Then they fight you.  Then you win. ~Ghandi

 

The CSKT Compact Takes Water from Irrigators

©2014 Concerned Citizens of Western Montana

We write now of the second point made in our “3 Easy Steps” article:  the Compact takes water away from thousands of irrigators and family farms.  There are two mechanisms through which the Compact takes water from other legitimate water rights holders:

1.  The irrigator Water Use Agreement (WUA)
2.  The failure to quantify the Tribes’ federal reserved water right

In no other Compact in Montana, and in no other water rights settlement or litigation in the United States, has an Indian water settlement resulted in the taking of someone else’s valid water rights/claims.  To be certain, there have been attempts to do so…wherein the Tribe/United States attempts to take water from non-Indians and then sell it back to them for profit.  They have been defeated in every one of these attempts by the strength and common sense arguments used by the states and water users against this tactic and philosophy.

It is, very simply, against the law to take water away from your neighbors no matter who you are, and those compact proponents who are attempting to give away their neighbor’s water are operating outside the law.

The Irrigator Water Use Agreement

The irrigator water use agreement (WUA) has been discussed at length on this blog, with the focus on the stunning components of the WUA that

• Require irrigators to relinquish their water rights/claims to the CSKT, and
• Reduce the amount of water applied to farmland by 80%.
• Turn former irrigation water into instream flow

We were informed by a very reliable source that it was fundamentally the State’s idea to push the irrigators to accept that their water rights belonged to the CSKT, and to “see if they could make this work” in the “negotiations”.

Interestingly, and perhaps because the state realized that this would constitute a taking of water rights, the Compact Commission claimed the WUA was a “private water agreement” between irrigators, the Tribes, and the United States, and that the State was not involved.  In this manner, the State was distancing itself from any liability for the taking that was part of this “private” water use agreement.

Fortunately, the old Flathead Joint Board of Control–run by Alan Mikkelson, Steve Hughes, Walt Shock, and Paul Wadsworth–were prevented from voting on the WUA by the Western Montana Water Users Association’s legal action filed in December 2012.  The individual irrigation districts were prohibited from giving away their constituents water rights by the legal action of Lloyd Ingraham, our late water warrior.  And then in February 2013, a provision of the Water Use Agreement that required the relinquishment of water rights was ruled an unconstitutional taking without compensation by Judge C.B. McNeil.   Just as important is the reduction of irrigation to farmland by 80%.

Because the Tribes remain covetous of the irrigation water, and in fact claim that they own it, the “newly reopened negotiations” have as their target the insertion of the WUA into the Compact, with the State now “involved” in the “negotiations” on behalf of substituting itself for the Flathead Joint Board of Control.  The state here is attempting an end run around those unfavorable legal decisions resulting from Judge McNeil’s ruling and the writ of prohibition secured by Lloyd Ingraham.

But make no mistake:  any “changes” in the language used by the Compact Commission to describe the new WUA are merely cosmetic.  The statement that “we will not make irrigators relinquish their water rights, and they will be adjudicated in the Water Court” is actually disingenuous because

• The volume of water allocated to irrigators is still less than half of the historic beneficial use, no matter whether it is delivered at the river diversion or at the farm turnout
• The Compact still awards most of the irrigation water to the CSKT.

Remember the theater of the so-called Technical Working Group?  That was designed to basically “verify” that the Tribes’ model used to reduce irrigation water to farmland was based on “reasonable science”.  We know, having attended those technical working group sessions, that the Tribes’ model was shown to be woefully inadequate in many respects, including being based upon unverified theoretical data and employing erroneous assumptions.

This technical working group also found that the Tribes’ proposal to turn irrigation water into instream flow, based on the so-called “robust river” standard, was also not based on sound science.  Thus the “value” of instream flow for fisheries, and the loud crowing about that use being “non-consumptive”, turns out to be nothing more than another way to prevent irrigators from diverting their own water for use on their own farms, as they have been for 100 years.

The final proof one has that the WUA will not change is Chris Tweeten’s assurance to the Tribes in the September 3rd negotiation session in Missoula that “nothing in the abstracts will change”.  Well, it’s in those thousand pages of abstracts where the irrigation water is taken by and held in the name of the CSKT and turned into instream flow.

The Compact thus takes water away from thousands of irrigators and family farms.

Failure to Quantify the Tribes’ Federal Reserved Water Right

The reason that the Compact Commission has failed to provide a volume of water that can be called the “federal reserved water right of the CSKT” is because the Tribes’, with the concurrent of the Compact Commission, claim ownership of all the water on the reservation, including water that belongs to others.

Simply stated, the “quantified” federal reserved right of the CSKT is simply all the water on the reservation, so why provide a number?  When asked, the Compact Commission says that the quantified water right is listed in the abstracts, “but you can’t add those up”.  Well, looking in the abstracts and tallying the volume of water listed as belonging to the CSKT pretty well confirms that it IS all the water on the reservation.

Where did this assumption come from?  It came in the Tribes’ 2001 and 2010 negotiation proposal to the state, which stated that:

…The Winters Doctrine reserved all the water on the reservation for the Tribes.

In truth, the Winters Doctrine reserves ONLY that amount of water necessary to fulfill the purposes of the reservation, not all the water.  The Tribes know this, and so does the Compact Commission.  They are just hoping that you don’t figure that out.

The outstanding question for the Compact Commission remains:  how much water is the federal reserved water right of the CSKT.  “Look in the abstracts” is an unacceptable, and laughable answer.

There is no legal, administrative, or practical justification for the Tribes to own all the water on the reservation, or for the State to agree with this preposterous position.   Gee, it almost sounds as if there was a Tribal agent inside the Compact Commission office masquerading as a state employee working solely for the Tribes.

Compact Commission: Business as Usual – UPDATED

© 2014 Concerned Citizens of Western Montana

NOTE:  Since this post was published, we have learned that it was not Mr. Salomon who initiated a dialog with the joint board of control.  A meeting was initiated as this post discusses, however the request for the meeting apparently did not come from Mr. Salomon.  There seems to be much confusion still about who the party that initiated the original meeting is.  

Faced with potential criticism for leaving irrigators out of the water compact equation, compact commission member Dan Salomon last week quietly met with one individual connected to the joint board of control agreeing to a meeting to discuss “negotiations”.

The divide and conquer strategy is rearing its very ugly head, and the commission’s legacy of highly criticized private behind the scenes meetings continues.  New Mission District Commissioner Gene Posivio stated the following in a message sent out Monday to his constituents and the public:

“A closed meeting with Dan Salomon and Chris Tweeten and select members of the FJBC will be held this Wednesday June 25th.  As there was no vote on holding this meeting, it must be informal.  One of my goals for this meeting is to set ground rules for negotiations.” (Note: this meeting has now been cancelled)

This is only one commissioner out of twelve.  Who are the “selected members” and where do the others stand?  Are they really willing to reestablish negotiations with an active lawsuit filed against them by the tribe?

SAME OLD STORY

Mr. Salomon’s commented that the Unitary Management Ordinance was probably non-negotiable for the tribe.  It is important to keep in mind that the ordinance impacts all uses of water on the reservation, not just irrigation.  Irrigators should stand firm and not back off of their position that the UMO is unacceptable to them, as it should be to everyone.  (Note:  Again it is reported that Mr. Salomon did not initiate the meeting, but instead conveyed what the tribe’s position concerning the UMO has been).

The “ordinance” doesn’t only affect irrigators, and is a blatant violation of the equal protection afforded to all citizens in the United States and Montana Constitutions.  The UMO is specifically designed to remove 28,000 Montanan’s from the protection of the state of Montana for their water needs and to place them under a politically appointed board that will essentially serve a tribal political agenda.  Given complete control over all the water on the reservation, there will be no growth and development on the reservation without tribal “approval”.

Salomon also indicated that irrigators only have the “right to receive water” and not a “water right”. At least on the surface it would seem that the tribe’s ownership of the project water right may also be “non-negotiable”.

So that leaves only one item remaining from the irrigators list of three issues developed last year:  How much water the tribe might agree to “mete out” to irrigators.  So once again, the public will be focused on how much water irrigators need, and not the real issue, the quantified federal reserved water right for the Flathead Indian Reservation.

WILL IRRIGATORS FALL FOR THE QUANTIFICATION TRAP?

Concerned Citizens has called the irrigator water use agreement a “red herring” because it was intentionally designed to take everyone’s focus away from the tribe being required to quantify their water needs.  As of the writing of this article, the quantification of the tribe’s federal reserved water right has not been provided to the public.

Far too many irrigators still want to debate how much water they need, not understanding that the debate should instead be about identifying how much water the tribe needs for the purpose of the reservation.

A water use agreement became necessary only after the old joint board of control agreed to relinquish their project water rights to the tribe.  With no water rights to speak of, irrigators then had to be “protected” from the theft of their irrigation project water by agreeing to an allotment of water from the tribes.  In our book giving up valuable water rights in exchange for less water, possible improvements to the project, and a priority date that you already had before you started negotiations is not a deal worth writing home about.

The compact commission and the tribe blew it when they overreached and allowed for a one size fits all allotment of water that would put many irrigators out of business, some much sooner than others.  Had the tribe been more generous in its offer of 1.4 (really 1.1) acre feet per acre, the agreement might have passed without anyone being the wiser.  Instead of generously offering historic use of water, the tribe chose to take all the water, agreeing to mete about 10% of it back to irrigators.  A whopping 90% of irrigation project water would remain for fish with a time immemorial water right.  In their distain for irrigation and desire to “own” the project, people were given a glimpse into the real agenda of the tribe, and realized very quickly the negative impact the agreement could have on their agriculture businesses.

At the May Water Policy Interim Committee meeting, Rhonda Swaney stated that the tribe is not interested in changing anything about the Water Use Agreement.  Instead she indicated they planned to work with their federal partners and the state to incorporate the agreement into the compact exactly as it is currently written.

The tribe’s recent lawsuit expressly states their believe that they own all the land and water on the reservation.  With an active lawsuit in play, one has to wonder why any commissioner in their right mind would consider discussing a water use agreement with any party to negotiations at this time.

We can only hope that these very recent legal actions of the tribe, along with the lessons learned the hard way over the past couple of years, make the new joint board of control skeptical of and careful about any “negotiation”.

 

 

 

 

 

 

Red Herrings Revisited

©2013 Concerned Citizens of Western Montana*

We have written about the several diversionary tactics that have been used as part of the strategy to present the proposed CSKT water Compact as a harmless, benign Compact that would not negatively impact anyone.  The two most significant diversionary tactics used in the Compact include:

• The off-reservation claims for water rights–this is a diversionary tactic as these water rights are not ‘federal reserved water rights’ and may not exist at all to support a treaty right to “take fish”.  (Note: For confirmation of this red herring, please review this excellent paper on why an instream flow right does not exist to support a treaty right to fish.)
• The Irrigation water use agreement (WUA)–the diversionary focus of the WUA has been to get irrigators fighting with each other on the amount of water that should be applied to each irrigated acre in the Flathead Project instead of the reality that irrigators are required to relinquish their water rights to the CSKT.

We have referred to these diversionary tactics as “red herrings”, defined below:

The idiom “red herring” is used to refer to something that misleads or distracts from the relevant or important issue.  It may be either a logical fallacy or a literary device that leads readers or characters towards a false conclusion. Red herrings often occur as a rhetorical maneuver in politics. The red herring is a seemingly plausible, though ultimately irrelevant, diversionary tactic.

We believe that both of these issues have been used to divert attention away from the real prize the CSKT seek:  the Unitary Management Ordinance (UMO).  This is a new rule for water management that essentially puts the Tribe in control of the water rights of all residents of the reservation, whether their rights are based in state, federal, or Tribal law.  Quoting the language of the Compact itself:

This Ordinance shall govern all water rights, whether derived from tribal, state or federal law, and shall control all aspects of water use, including all permitting of new uses, changes of existing uses, enforcement of water right calls and all aspects of enforcement within the exterior boundaries of the Flathead Indian Reservation. Any provision of Title 85, MCA [State water law] that is inconsistent with this Law of Administration is not applicable within the Reservation.

Compact proponents argue that the Governor gets to appoint two members to the five-member Unitary Management Board (UMB), and that means that the CSKT is not in control.  However, if you know anything about Indian Affairs, it is a known fact that the Governor’s appointees must be acceptable to (controllable by?) the Tribe.  This assures that at least 3, if not 4 out of  the 5 members of the UMB will be controlled by the CSKT Tribal Council. In practicality, this means that the water rights and development of all reservation residents will be controlled by a mere handful of reservation residents, serving their own agenda.  Twenty three thousand non-Indians who technically do not live “on the reservation”, but merely reside within its exterior boundaries, will no longer be protected under the laws and constitution of the state of Montana for their water needs.

This is similar to the control exercised by the Tribe of the Cooperative Management Entity which by law should have membership more in line with the actual ownership of lands irrigated by the Flathead Project.

The UMO, if adopted as part of the Compact, would control the future because it will control the use, development and transfer of use of surface and ground water on private lands within the reservation.  Keep in mind that no where in the United States has a Tribe been given this authority over non-Indians.

Remember also that the Tribe has stated that “if the UMO is not in the Compact, the mechanism for a Compact disappears”.  This is a huge statement of intent and we believe the main reason why other distractions had to be developed–the off-reservation water claim and the amount of water to be applied to irrigated lands in the WUA–to mask this major water control objective.

About those Red Herrings…

The thing about red herrings is that they can be dropped to give the illusion of ‘concessions’.  With audible relief guaranteed if the Tribes did indeed drop the off-reservation water rights claim and increase the amount of water to be applied to irrigation project lands, a Compact preserving the Unitary Management Ordinance would result.  Instantly the off-reservation opposition to the Compact could wane, and compact proponents would hope that irrigators will be relieved because they get more water and forget they will have to give up their water rights to the Tribes.

And the hope is that everyone forgets the dangers of the Unitary Management Ordinance.

We have previously written that we expected the Tribes to drop these red herrings, and rumors we hear from reliable sources indicate that this just might be happening right now.  Nothing in writing of course.  Dropping these red herrings would be used to gather momentum for a legislative special session, something compact proponents are salivating for.

Keep in mind that the Governor could call a special session on some other unrelated topic and rely upon his democrats and those (ir)”responsible republicans” 😉 to slip the CSKT Compact in somehow.  Concerned Citizens will keep you apprised of any developments in this direction.

Stay tuned.

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