This page is dedicated to the pesky little details of the compact documents that kept it from passing during the 2013 legislative session. Below are a series of Concerned Citizen’s documents oldest to newest, written to help inform the public and legislators about the problems with this compact. In them, we discuss details the commission consciously chose to leave out, up to and including the QUANTIFICATION OF THE TRIBE’S FEDERAL RESERVED WATER RIGHT FOR RESERVATION LAND ONLY. We also discuss the flawed premises and assumptions that got us the compact documents we see today. The commission, and our governor know full well that it is impossible to assess potential negative impacts of the compact without impact studies or the quantification of the water, yet the commission expected legislators would let those details slide.
Here are some inconvenient “details” you might be interested in learning about.
- Citizen’s Guide to the Flathead Water Compact
- Concerned Citizens Jay Weiner Response
- Concerned Citizens Report on the Governor’s Report on the CSKT Compact
- Corrective Comparative Water Compact
- County Commission Letters
- Critical Review of the CSKT Compact
- Five Reasons to Reject the Proposed Compact
- Has the State Given the Tribes More Water Than Exists?
- Judge Rules Water Use Agreement to Be Unconstitutional Taking
- Montana Indian Reservation Compact Comparison Chart
- Montana Land and Water Alliance Documents
- Response to CSKT’s Response to Critical Review and Comparative Compact
- Unitary Management Ordinance
- Water Compact Video Links
FIVE REASONS TO REJECT THE PROPOSED CSKT COMPACT 12/2012
In December 2012, Concerned Citizens issued a paper Five Reasons to Reject the Proposed CSKT Compact. Because of the complexity of the documents, and the fact that the commission meetings were designed to “sell the compact” as opposed to explaining it, this document became an important part of the debate.
JUDGE RULES WATER USE AGREEMENT FOR THE FLATHEAD IRRIGATION PROJECT TO BE AN UNCONSTITUTIONAL TAKING WITHOUT COMPENSATION 02/2013
The Flathead Irrigation Project Water Use Agreement was introduced to the public in June of 2012, giving irrigators and interested public 14 days to comment before commissioners of the Flathead Joint Board of Control would vote to approve it. The details of the document were of great concern and the public asked for an extension of the comment period. This gave irrigators time to retain an attorney to comment on the water use agreement and other preliminary compact documents. Irrigators soon formed an LLC, the Western Montana Water Users Association who filed a Writ of Mandate with the district court in December 2012.
In February 2012, Judge CB McNeil issued the write of mandate and ruled the water use agreement to be an unconstitutional taking without compensation:
That there also is a void of any authority for the FJBC to enter into an agreement which provides for the assignment of the Irrigators’ water rights to the Tribes without just compensation for their valuable water rights in violation of the Montana Constitution…..
…..That the draft agreement contains no provision for any compensation to any individual irrigator for the transfer of his water rights to the Tribes…..
….That said draft agreement contains no contractual obligation on the part of the Tribes to issue any FIP Tribes-owned water right to any of the Irrigators.
Read Judge McNeil’s decision here: https://westernmtwaterrights.files.wordpress.com/2013/02/mcneil-decision-2-15-13.pdf
CONCERNED CITIZENS RESPONSE TO JAY WEINER 03/2013
After the Five Reasons to Reject the Proposed CSKT Compact document was made public, Jay Weiner, compact commission attorney responded to it. He posted a critical paper on the DNRC website without the benefit of including our paper for the public to see. Here is our response to his efforts to marginalize and discredit the Five Reasons document.
MONTANA INDIAN RESERVATION COMPACT COMPARISON CHART 04/2013
The purpose of the Flathead Water Compact is to “quantify the amount of water necessary to fulfill the purpose of the reservation”. Unfortunately the existing compact failed to do that, and the commission has not provided the public with the quantification numbers. Instead they refer the public to the 1,000 pages of abstracts in the appendices. So we took it upon ourselves to go through them and the chart below provides information from those abstracts. The Flathead Compact numbers include 18 million acre feet of water from Flathead Lake, several million from the Kootenai River and many other rivers and streams, as well as 100% of the water in the Flathead Irrigation Project. See how this compact compares to the other tribal compacts for the state of Montana.
Remember the commission has not provided their own numbers, but criticize ours. This begs the question, why haven’t they provided the information needed by the people of Montana to understand what this compact will mean to them?
CRITICAL REVIEW OF THE CSKT COMPACT 06/2013
This document is one of two submitted to the compact commission’s solicitation for feedback concerning the existing proposed compact that the Compact Commission and Governor continue to call a “fair agreement”. Copies were submitted to the governor, the attorney general, the compact commission, the tribes, and the Water Policy Interim Committee.
PROPOSED ALTERNATIVE COMPARATIVE COMPACT 07/2013
In collaboration with several Montana state legislators, Concerned Citizens of Western Montana released an alternative comparative compact to demonstrate what a reasonable, fair and equitable compact should have looked like. This document was developed by Dr. Catherine Vandemoer, a hydrologist with more than 26 years of experience working in Indian country on the management, and development of federal reserved water rights and associated resources on American Indian reservations in the western United States. This unusual step was taken because it became clear the compact commission and governor Bullock continue to push the existing compact forward, presenting it to be a “fairly negotiated settlement”. Concerned Citizens believes the public and legislators must be made aware that other alternatives to the existing compact do exist and should be considered by the negotiating parties if a reasonable compact is to be achieved.
TRIBE RESPONDS TO ALTERNATIVE COMPACT AND CRITICAL REVIEW DOCUMENTS, CONCERNED CITIZENS RESPONDS BACK 09/2013
Update 01/2014 – Ahead of the Water Policy Interim Committee meeting on 01/06/14, compact proponents were able to secure letters from Lake, Missoula and Flathead counties in support of the compact. Read our blog post about how this was accomplished in Lake County. We have email messages from one of the two Flathead County Commissioners who signed their letter saying he is not in support of this compact, but supports “a compact”, so the Flathead letter appears to be questionable. Find copies of these commission letters here:
HAS THE STATE GIVEN THE TRIBES MORE WATER THAN EXISTS?
COMMENT – I have heard a rumor that the compact will not quantify the CSKT reserved water right. Without quantification, I am unsure how adverse affect will be determined.
RESPONSE – No proposal for this section of the compact has yet been released. The summary of the February 7 Task Force meeting included the following question and answer:
QUESTION – Will the compact specify or cap the flow and volume of the CSKT reserved water right?
ANSWER BY JAY WEINER – Maybe. This is a complicated issue. IF THE RESERVED RIGHT IS QUANTIFIED NUMERICALLY (either by volume or flow rate), IT WILL LIKELY BE LARGER THAN THE AVAILABLE SUPPLY. The Compact Commission will seek sideboards on the use of the reserved right to protect existing water users.
WATER COMPACT VIDEO LINKS
06/2013 Flathead Water Compact This is a powerpoint narrative giving a good overview of the history of the compact / reservation and the proposed CSKT water compact.
01/2013 Water Compact Commission Public Meeting Documentary This video documents just a few of the problems with the so-called “transparent and public” negotiation process that the compact commission says took place over the past several years.
02/2014 CSKT Water Compact: Good for Montana or a Government Grab for Resources? Listen to Dr. Kate Vandemoer, Ph.D, hydrologist, discuss some of the more controversial aspects of the water compact.
01/2014 Stranglehold on Free Speech Listen to Tim Orr, irrigator on the Flathead Reservation discuss the repercussions to him and his family for speaking out against the Flathead Water Compact
02/2014 CITIZENS GUIDE TO THE FLATHEAD WATER COMPACT
Check out our most recent brochure, a CITIZEN’S GUIDE TO THE FLATHEAD WATER COMPACT. It gives a good overview of the more controversial aspects of the compact.
03/2014 CONCERNED CITIZENS RESPONSE TO THE GOVERNORS REPORT ON THE CSKT COMPACT
THE UNITARY MANAGEMENT ORDINANCE 07/2014
One of the significant ways in which the proposed CSKT Compact differs from every other Compact in Montana, and every other litigated or negotiated Indian water settlement in the United States, is its imposition of the CSKT “Unitary Management Ordinance” (UMO) as a substitute for state water administration on the Flathead Indian Reservation.
The imposition of this water administration system on Montana citizens has been trivialized by Compact Commission members, who continue to call the UMO’s Unitary Management Board (UMB) similar to a political redistricting board, a lakeshore management board, or the FWP-CSKT board that manages wildlife issues on the Flathead Reservation. But make no mistake–the UMB is a politically appointed board that will be controlled by the Tribes…by virtue of their control over the Governor’s appointees and their own. The UMB, like the UMO, is accountable to no one.
Reference Concerned Citizens’ Document related to the UMO submitted to the Water Policy Interim Committee Meeting in July 2014 here
MONTANA LAND AND WATER ALLIANCE DOCUMENTS
10/2014 White Paper Submitted to Water Policy Interim Committee
11/2014 Richard Simms Letter to Attorney General Fox