Notes on Compact Implementation

©2017 Montana Land and Water Alliance

The roughly 1,500-page CSKT Compact, including appendices, was never presented to or explained for the Montana legislature in either 2013 or 2015 by the Montana Reserved Water Rights Compact Commission. As a result, many important aspects of the compact were not discussed, including immediate implementation of Appendix 3.5 in the federal Flathead Irrigation Project by the CITT and the Milltown Dam water right, involving a federal co-owned water right in the name of the CSKT.

We believe that the immediate implementation of these two elements of the compact is designed to enable as much irrigation operational change as possible. The only reason for the extensive appendices of the compact, including those that show the transfer of irrigator water rights to the CSKT, is to make it so permanent it will be impossible to undo if the compact fails either in state court or Congress. Just like Obamacare, Montana would never be rid of this compact.

Having examined the Milltown water right and its improper implementation, lets take a look at what the state is attempting to do with a federal irrigation project.

The Flathead Irrigation Project.  The reduction of on farm water delivery contemplated in Appendix 3.5 enables the CITT to “adjust” and “balance” irrigation and fish flows according to some “adaptive management” principles. “Balance” implies some kind of headgate management or control at either a main canal River Diversion Allowance) or control of diversions at the field level (historic use reduced to 1.4 acre feet per acre).

Bear in mind that there are no scientific criteria or measurable outcomes by which the CITT can judge “adaptive management” a success or failure. Noteworthy as well is that the BIA cannot change its operations plan without federal approval according to the Code of Federal Regulations (25 CFR 171). So the only current legally-correct operations plan is the BIA’s 2010 plan, not some “adaptive management program” in Appendix 3.5 of the compact.

In all these pages we have documented the factual, illegal, and unconstitutional provisions of the compact, with an archive of hundreds of documents that support all of what has been written here.  We believe the compact never passed the 2015 legislature, is unconstitutional, and violates provisions of Montana and U.S. law.

What does the long term deprivation of water to irrigation lands, including the lack of spring surplus flows or “non-quota” water do to agricultural production? It  starts a physical and biological chain reaction that starves the soil of early moisture, starves growing crops of water,  and reduces late-season streamflow important for agriculture and fish.

The loss of agricultural productivity and resultant economic devastation by this scheme of adaptive management was never analyzed in the compact and never presented to the legislature for discussion, let alone its immediate implementation. The 1,500 page document was designed to prevent this discussion and intended to frustrate the competent analysis of the compact.  Instead, politics prevailed.

Are there any Federal Law Books on the Shelves?

You would think that when issues of federal reserved water rights, Indian tribes, and the federal government are involved in an issue with the state, the state would consider basic elements of federal law that control the subject of water rights.  But seriously, are there any federal law books on the shelves of the Governor, Attorney General, Legislative Services Division, legislature’s or Compact Commission shelves? What makes them think they have the authority to unlawfully take or manipulate the volume of citizens’ water rights?

The problem returns to the misconception of what “Tribal sovereignty” is.  The state refers to the “three sovereigns” coming to an agreement on water as if the Tribe represents or has the same type of sovereignty as the federal or state governments, when they don’t.

Confronted with this issue, the state refuses to recognize the trap it has put itself in. And in doing so, the state of Montana violates the civil rights of all its citizens.

 

 

 

 

Advertisements

The Compact-Generated “Co-Owned” Milltown Dam Water Right

©2017 Montana Land and Water Alliance

Author’s Notes: Grab your favorite beverage as this is a long article, probably taken in two sittings!  The first part of this article is a “quick” status report on the compact-generated Milltown Dam off-reservation water right and recent events and communication regarding its implementation off the reservation.  The second part is an article drafted for the public in response to a recent FWP hearing on the water right, which is too long for every paper and magazine.  Thankfully this venue offers potentially wide distribution and we’d appreciate you sharing it to those who may not have access to a computer!

The Compact-Generated “Co-Owned” Milltown Dam Water Right

The following article discusses the improper and in our view illegal implementation of  the CSKT Compact off the reservation for the Milltown Dam water right.  Recall that the Compact authorized two actions to begin immediately:  (1) implement the adaptive management plan for the Flathead Irrigation Project through the CITT (Compact Implementation Technical Team), and (2) implement the Milltown Dam water right, which involved “splitting” a water right on the Clark Fork river between two tributaries and changing the use to instream flow.  This was a change in the point of use(POU) and type of use for the water right.  Here’s the problem:

The state chose to implement portions of the CSKT Compact before Congress has considered or ratified it.  The portions they chose to implement involve uniquely federal issues—a co-owned water right off the reservation with the CSKT that is subject to Congressional approval, and attempted “adaptive management” inside the federal Flathead Irrigation project on the reservation which transforms irrigation water into a fisheries instream flow project.

On the reservation, of course, the BIA at the behest of CSKT has been pre-implementing the Compact since 2013 by denying irrigators the use of spring runoff, failure to store water (2013-2015), and failing to manage water deliveries or favoring compact proponents in the project, which has caused hardship and strife among neighbors. These actions stray far from the 2010 Operation and Management Plan which is the only federal document that is operative now. Thus the BIA, CSKT, and State/Compact-created CITT actions  in a federal irrigation project are by definition unlawful because they are contrary to the only federal operating document for the project.

Importantly, the state’s actions are improper no matter if the Compact is in Court or not–the state is wholly without authority to implement the compact in the federal Flathead Irrigation and Power Project.  Let’s not help them!

Off the reservation, the state is implementing what the compact calls a  “co-owned water right” with the CSKT.  The barriers to implementing this “co-owned” water right include:

  1. the legal validity of the all of the Compact’s claimed off-reservation water rights
  2. the legality of implementing a change in point and purpose of use of a state water right without a state law based hearing and/or environmental assessment,  and
  3. the actual ownership of the water right being federal, not Tribal.  So the state is going to co-own state water with the federal government.  (Note to State:  giving up water to the federal government, not the CSKT, sounds a little less romantic and daring now, doesn’t it?).

The Montana Land and Water Alliance first wrote to DNRC Director John Tubbs in November of 2015 citing the legal case and questioning the state’s implementation of this water right while the case was in court.  We suggested that until the case was resolved a state law based hearing should be held to address the known concerns of local irrigators regarding the effect of instream flow on irrigation.  Of course the DNRC dismissed our letter asserting the compact had passed the legislature. But that actually began the official clock as to the on-the-record notification to DNRC of the improper implementation of this water right.  The clock will be cleaned at some point in the future.

State Changes Compact Again without Legislature

Recently we had a chance to review the abstract for the Milltown Water Right which shows that it has changed from the 2015 Compact  in both ownership and effective date of the right. In 2015 it was a co-owned water right with an immediate effective date.

Now the water right  is owned by the State and the CSKT will at sometime in the future become the water right co-owner:

THE CONFEDERATED SALISH AND KOOTENAI TRIBES BECOME CO-OWNERS OF THIS WATER RIGHT ON THE EFFECTIVE DATE OF THE COMPACT, WHICH THE DATE ON WHICH THE COMPACT IS FINALLY APPROVED BY THE TRIBES, BY THE STATE, AND BY THE UNITED STATES AND ON WHICH THE LAW OF ADMINISTRATION (APPENDIX 4 OF THE COMPACT) HAS BEEN ENACTED AND TAKEN EFFECT AS THE LAW OF THE STATE AND THE TRIBES, WHICHEVER IS LATEST.

Note here:

  • the 2015 Compact has been changed by the state executive agencies, despite disallowing the state legislature to change any aspect of it, including the “effective date”.
  • what is the “Law of Administration” (UMO, WMB) doing in an abstract for an off-reservation water right?

This review prompted our second letter to Director Tubbs focusing on the abstract changed effective date, and asserting that until the compact is passed by Congress the Milltown Dam water right is a state owned water right and the compact cannot be used for its implementation because it requires Congressional approval–which is not certain- and ratification.

We requested once again that the state conduct a state law based hearing on the Milltown Dam water right, particularly because there are still anticipated impacts to irrigators that have not been addressed. That second marker was approximately 575 days after our first notice.

In its response to the MLWA letter,  the state doubled down on the compact’s supposed authority allowing the Milltown Dam water right to be implemented without a state hearing, and astoundingly, cited another appendix in the compact that allowed the state up to 10 years to hold “stakeholder meetings” to adjust to the new flow regime.

Regarding our question as to why the Law of Administration was included in the Abstract when it was unnecessary to existing language in the compact, the state couldn’t bring itself to acknowledge tribal-influenced language? a clerical error or oversight. Instead, it applied an allegedly reservation-based law for water to an off reservation, state-owned water right before it had the authority to do so.

The state cannot apply federal ownership to state owned water resources when the federal government has not itself done so.  What’s hard to understand about that?

Corrective Action

Why do we mention the number of days, now over 500?  Simple: in light of the clear facts presented, the state is out of compliance with its own law and its been over 500 days since they were notified.    The corrective pathway was identified in our recent letter.

Imagine if this were you, and you had a daily fine until you corrected an action on your property that violated an EPA, the Corps of Engineers, or Endangered Species Act regulation?  Those fines can range easily from $25,000-$100,000 per day, for which you have to spend additional money and hire lawyer to help.  What if we had the same kind of accountability for DNRC?  You can do the numbers for Milltown.

But seriously, what if DNRC implementation of this water right results in damage to irrigators using ground water resources hydrologically connected to the river? Under state law, the state would have to address these damages.

On reservation, the Compact  grants the state immunity from damages, costs, and attorneys fees resulting from implementation of the Compact’s Law of Administration.  But since the Law of Administration is now attached to the Milltown Dam water right, does that mean that the state is now immune from off-reservation damages too?

Is the state using the Compact to abandon its own law?

meeting on milltown dam water right

Recently the Granite Headwaters Watershed Group sponsored a meeting on the Milltown Dam water right and the CSKT Compact. Representatives of the MT Fish Wildlife and Parks were on hand to answer questions.  The meeting was described in the July 6 edition of the Philipsburg Press and can be found here.  The state asked for feedback. Here is our response.

“State Should Follow State Law, not Compact, for Milltown Dam Water Right”

Thanks to the Granite Headwaters Watershed Group for sponsoring a meeting on the Milltown Dam water right in relationship to the CSKT Compact, to the state presenters, and to reporter Emily Petrovski for capturing the sense of the meeting and the questions presented and addressed in the Philipsburg Press.

From the context of our background in critically examining the CSKT Compact, we’d like to offer a few observations that may help clarify the many questions about the Milltown Dam water right that in my view remain unanswered. Foremost in this essay are (1) the failure of the state to evaluate the impact of instream flows on irrigation; (2) the existence of an off-reservation, “co-owned” water right; and (3) suggestions in lieu of far-off congressional ratification.

For the record, when first examining this water right in 2015, we noted that the Abstract of water right for one of the two Milltown Dam water rights listed the CSKT as the co-owner along with the state, and the Compact language allowed its immediate implementation.  Today the same Abstract has listed the state as the primary owner of the water right, with the addition of the CSKT upon the “effective date” of the Compact; the “effective date is defined as after Congress, the Montana Water Court, and the Tribes have all ratified the compact”.

Thus, in 2015, the state was implementing this water right as if it was co-owned by the CSKT, and authorized under the CSKT Compact and a state law-based hearing was not necessary. Today the state is implementing this water right as a state-owned water right, but still claiming it is under the authority of the Compact which allows them to proceed without a hearing.

Failure to Address Agricultural Impacts of Instream Flow

A first concern about the Milltown Dam water right reported at the meeting is that the “agency is in the first phase of figuring out how the compact will affect irrigators”, according to Fisheries Manager Pat Saffel.  This is startling considering the water right has been implemented since April 2015, and that the DNRC has known since at least 2015 that there would be impacts to irrigators with the implementation of the new purposes for the Milltown Dam water right.

But remember in 2015 the DNRC claimed that the passage of the CSKT Compact was its “authority” for implementing the Milltown Dam water right and apparently that assumption is still there today.

In a February 2015 DNRC report regarding the off-reservation impacts of the CSKT Compact, the state discussed its concern about irrigation and ground water wells regarding the implementation of the Milltown Dam water right. The state indicated that it would have to conduct a hearing pursuant to Montana law and procedure in the event the Compact was not passed[1].  Since the Compact passed the legislature in 2015, the state did not conduct a hearing pursuant to state law and its procedures for the change of use for a water right and went ahead and implemented the change in water use in April 2015.

As of 2017, the Abstract of Water Right has been changed and now indicates that the state is the sole owner of the right, with a notice of the CSKT being added at some point in the future.   The right is still considered part of the Compact but now a state-based water right. But is this water right still implementable under the compact? Is it implementable as a state-based water right without a state-law based hearing, since the right will be owned by the state for a long time before the Compact is ratified by Congress and the CSKT are added as co-owners?

The state of Montana must do more for existing irrigation than “hope” the water issue “will not come down to fish versus agriculture”. In the context of the climate change predicted by Mr. McLane, however, and in the absence of diligent investigation, it will become just that.  Notwithstanding the fact that fish have adjusted to climate change too in the past and are expected to do so in the future, “It’s a fish’s world”, stated by, of course, the Fisheries Manager! What about vested agricultural rights?

Has the CSKT Compact already become a vehicle for the state to avoid a hearing on the Milltown Dam water right, or to ignore its own laws and citizens?

Does a “Co-owned” Water Right Exist with the CSKT?

Perhaps even more fundamentally concerning than not knowing the impact of the change of water use on existing water users is whether the state can “co-own” a water right with the United States.

Yes, the agency at the meeting said that “it was decided” that the Tribes could co-own a water right with the state, and the Compact “gave” them the co-owned water right. But the causal discussion of the validity of co-ownership of water rights with the CSKT conveyed at the meeting does not realistically portray the actual legal uncertainty of whether a state may co-own state water resources with a tribe or the United States. That decision is not up to the state of Montana.

This is important for people to understand because the federal government always is the main title-holder of property or rights in trust for a Tribe.  That the CSKT are a government organized under the Indian Reorganization Act emphasizes this fact. Congress must make this decision, and evaluate the impacts of such a decision on the states.

Federal ownership of the CSKT water right is stated in the abstracts of the Compact located in the appendices, as the Tribes’ rights are described as “U.S. Department of the Interior, Bureau of Indian Affairs, in trust for the CSKT”.   Except the compact’s Milltown Dam abstract, which now says it will be co-owned by the CSKT at the effective date of the Compact. Importantly,   if this state-declared co-ownership of a water right even exists, then it belongs to the United States, not the CSKT.

It also appears that the state does not acknowledge that without Congressional and likely U.S. Supreme Court action,  there legally are no Indian federal reserved or other water rights off the Flathead Indian Reservation, no matter what the Compact says.  A Tribe can claim a water right anywhere, but history, law, the Treaties, the Courts, and Congress determine their geographic location and extent.

Whether intended or not, the practical result of the Compact is that the state invited the United States to co-own state waters off the reservation and across western Montana, including the Milltown water right, through the CSKT Compact.  But can the state legislature create federal jurisdiction where otherwise it would not exist?

There is no example anywhere in the United States where a tribe co-owns water with a state, and no example where a Tribe has water rights off its reservation. The Milltown Dam and other off-reservation water rights involving the CSKT are uniquely federal issues and their validity must be determined by Congress and the Courts, a very long time away. This context suggests that the Milltown Dam water right cannot be implemented using the authority of the CSKT Compact. It is a state law-based water right owned by the state and can only be implemented now pursuant to state law.

Suggestions in Lieu of the Far-Distant Congressional Ratification

 The state chose to implement portions of the CSKT Compact before Congress has considered or ratified it.  The portions they chose to implement involve uniquely federal issues—a co-owned water right off the reservation with the CSKT that is subject to Congressional approval, and attempted “adaptive management” inside the federal Flathead Irrigation project on the reservation which transforms irrigation water into a fisheries instream flow project.

A hearing conducted by the state on the change of purpose and point of use for the Milltown Dam water right would provide the opportunity to evaluate the impacts of the change of use on irrigation, and to develop information on and measures for addressing drought, surplus, or extreme conditions.  A part of this hearing should address the enforcement provisions of the right in the hypothetical case of United States co-ownership.

[1] Montana Reserved Rights Compact Commission, 2015 Proposed 2015 CSKT Compact Off Reservation Impact Analysis, February 2015. See pages 4-8. http://dnrc.mt.gov/divisions/reserved-water-rights-compact-commission/docs/off-reservation_impact_analysis_2-2015.pdf

The Indian Reorganization Act and Kerr Dam

©2017 Montana Land and Water Alliance

The Indian Reorganization Act (IRA) of 1934 is the organizing document under which the CSKT are formed as a tribal government–actually, a corporation.  In addition, Energy Keepers, Inc. is organized as a tribal corporation under the IRA for the purposes of purchasing and managing Kerr Dam.  Kerr Dam was purchased under Section 17 of the IRA.

Recently the House Natural Resources Committee began oversight hearings on two specific provisions of the IRA, Sections 3 and 5. The Committee and its subcommittees have invited state, county, and local officials to testify on the impacts of the IRA on local communities.  Suffice it to say that “it ain’t pretty”.

SECTION 3.

Section 3 of the IRA  authorizes the Secretary of Interior to take lands into trust for tribes, however, applies some protective provisions that consider the surrounding non-Indian community:

The Secretary of the Interior, if he shall find it to be in the public interest, is hereby authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public land laws of the United States: Provided, however, that valid rights or claims of any persons to any lands so withdrawn existing on the date of the withdrawal shall not be affected by this Act; Provided further, that this section shall not apply to lands within any reclamation project heretofore authorized in any Indian reservation (Emphasis added)

Notice that Section 3 prohibits the United States acquisition of land within the Flathead Irrigation Project, defined in the statute as “any reclamation project…in any Indian Reservation”. This would apply to any agency of the United States, even the quasi-federal agency Bonneville Power Administration, and would include the Fish and Wildlife Service, and perhaps even the Federal Energy Regulatory Commission (FERC). Under what circumstances can FERC, a federal agency, deny the right to the low cost block of power and the net power revenue belonging to the irrigators in a federal irrigation project?

We believe that this is a protective measure for the non-Indians invited by the United States to purchase surplus lands on the allotted reservation, because the removal of land from a federal irrigation project disrupts water delivery, negatively affects operation and maintenance revenue, and negatively affects agricultural production.

Here is the hearing on Section 3 of the IRA, held May 24, 2017:

Do the impacts of Section 3 as described by county officials in this hearing sound familiar?

We believe that any land associated with the federal Flathead Irrigation Project, including rights of way for storage, are included within the meaning of Section 3.

SECTION 5.

Section 5 of the IRA has to do with the ownership of any rights or properties purchased by a Tribe.  The title to these rights or properties is taken in the name of the United States in trust for the tribe.

The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians… Title to any lands or rights acquired pursuant to this Act or the Act of July 28, 1955 (69 Stat. 392), as amended (Added by Public Law 100 581, title II, sec. 214, Nov. 1, 1988) shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation (Emphasis added)

Notice that Section 5 states that the United States is the owner of all property and rights purchased by a Tribe. We believe this applies to Kerr Dam which is part and parcel of a federal irrigation project and cannot be separated from it.  By virtue of the purchase of Kerr Dam by the CSKT, an IRA Tribe, Kerr is now a federal facility.

Here is the House Hearing on Section 5 of the IRA, July 13, 2017 (2 hours)

Did the purchase of Kerr Dam violate Sections 3 and 5 of the Indian Reorganization Act?

The “Off Ramp”–Will Tribes finally Become Self-Determined & Self-Reliant?

Secretary Zinke had this to say on the Indian Reorganization Act:

“We need a discussion on that. As I look at the 1934 Indian Reorganization Act, I think it’s time for a dialogue. What are we going to be 100 years from now? Is there an off-ramp? If I offered today that the tribe would have a choice of leaving the Indian Trust lands and becoming a 501c3 Corporation, another entity, some tribes would take it. I think quite frankly at BIA (the Bureau of Indian Affairs), I’m not sure in many ways we’re value- added. I’m not sure that we’re providing the services in education in a regulatory framework that promotes self-determination. My friend, I’m not sure we are; and we need this dialogue,” he said.

Is this a viable model?

The House hearings, and the other important Federal Register opportunity to provide further comment, signal a close look at Federal Indian policy during 2017 and beyond, beginning with a fundamental act, the IRA.

Importantly, a Federal Register Notice announced an open-ended review period of major natural resource laws which includes the IRA in the Title 25 of the Code of Federal Regulations

The IRA was supposed to lead to Tribal self-governance and self-determination, the cornerstone of Federal Indian policy. Instead of self-governance, it appears that the IRA has become an Individual Retirement Account for Tribal leaders!

Funding Our Own Demise

Note:  The following information was recently sent out to federal and Montana government decision makers.  It was developed to help elected officials better understand the mind boggling amount of  taxpayer dollars currently being used to fund tribal corporations, and to explain how this taxpayer largess serves to undermine local governance and the rights and protections of all citizens.  Our thanks to the organizations noted below for providing us with this information to be shared with the public.

If tribes are really “sovereign governments” as they insist they are, shouldn’t they be self sufficient?  Then why are state and federal taxpayers funding them?

The information included in the document is sourced, and comes from the public record.  In other words, it is available to anyone who takes the time to look for it.

Get the word out by sharing this information far and wide.  Contact your elected officials and tell them to stop feeding the beast.

Funding Our Own Demise: How Federal Self-Determination Payments to Tribes Deprive Citizens and County and State Governments of their Own Self-Determination

Booklet:  Funding Our Own Demise

This Booklet is a guide for federal, state and county government decision-makers charged with allocating taxpayer funds for essential governmental  services to citizens in geographical locations where Indian Reservations are found within county or state borders.  County budgets throughout the country are increasingly eroded by Tribal programs and federal laws, including land-into-trust acquisition, Public Law 280 regarding jurisdiction, and Public Law 93-638 regarding self-determination contracts.

The purpose of this information Booklet is to demonstrate that taxpayer dollars are being used to support tribal, state and federal programs that undermine and erode the county and state ability to provide basic government services to citizens.

There are significant differences between a county or state government and a tribal government. First, while the state and county governments are constitutionally and legally obligated to provide for all citizens within their jurisdiction, Tribal governments have a limited governmental authority granted to them by Congress to provide government services only to their own constituents under the guidance of the federal government.  In addition, while county governments are largely funded by tax revenue, Tribal governments within the same county are funded almost exclusively by taxpayer funds from the federal government under its policy of tribal “self-determination”.   And finally, state and county government funding is public information and audited, while Tribal government spending of federal dollars may never be audited.

To address overlapping services, the counties and state have established “government to government” relationships.  While the Tribes act to secure access to state and county benefits for their citizens, the federal funding they receive, sometimes for the same services, does not pass through to the county or to the state.  In the context of land-into-trust acquisitions, for example, the federal government funds the Tribe to remove land from the county tax base, but the county is still expected to provide essential government services to the tribe and its members.   Because the federal funds paid out to the Tribes are ultimately derived from taxpayers, it appears that our own tax dollars are being used to undermine our own county and state government’s ability to provide essential services to its citizens.

Comparison of Montana county government revenue across the state with the annual federal funding of the seven tribes in Montana as presented in this Booklet shows that the Tribal funding from the federal government far exceeds state county revenue.   The federal funding used by the tribes to remove land from the county tax base and to purchase major infrastructure removes the tax revenue from the county and signals a demise in county government viability over the long term.  The funding to the Tribes to enact these activities is another example of federal overreach and intrusion into state and local government.  To maintain viable county governments and to guard state taxpayers, this trend must be arrested immediately.

The Crucible:  Lake County

Lake County is an example where federal Indian policy and funding, as well state funding, are acting to devastate the county’s tax base and jeopardize citizens by being unable to provide basic fire protection, law enforcement, road and infrastructure maintenance, and a host of social, health, and legal services for all citizens.  Some of the key factors affecting the county are:

  • Public Law 280 – the Confederated Salish and Kootenai Tribes (CSKT) are the only tribe in Montana where the state has criminal jurisdiction over tribal members, resulting in a disproportionate share of county resources being used for this purpose. It is currently overwhelming to the county budget and local justice system.
  • The 2015 Tribal purchase of Kerr Dam reduced county tax revenues by $1.2 million per year, increasing pressure on the county to either reduce services or to increase property taxes.
  • The CSKT Water Compact –S.3013 introduced by Senator Jon Tester proposed to award a settlement of $2.3 BILLION to the tribe and transfer ownership and management of the Flathead Irrigation Project to the CSKT, reducing irrigator water deliveries by an estimated 40-70%. It also proposes to award vast amounts of water off the reservation to the U.S. / CSKT.   If successful, this transfer will have a severe negative impact on local land values as well as our agricultural economy.
  • Because the tribe does not pay tax on trust land, Fee-into-trust land acquisitions continue to erode the property tax revenue base, making it increasingly difficult for the county to provide basic services to citizens.
  • Fuel tax revenues are intended to cover the cost of road maintenance. Under a fuel tax revenue sharing agreement with the state, the CSKT received $611,000 in gas tax revenue in 2016.  For the same year, Lake County was awarded only $178,000, yet the county is responsible for road repairs.

At the same time, the CSKT annual federal funding is conservatively estimated to be $250 million per year which is ten times Lake County’s budget.  Yet the CSKT do not contribute funding, actions or services that enhance county government abilities, and instead use the funds for other purposes which may or may not be related to the purpose for which they were federally funded.

Evaluating Tribal Requests for Funding

Since its passage in 1975, The Indian Self Determination Act (ISDEAA), or Public Law 93-638 has been used to redefine and expand the notion of tribal sovereignty.  While its original intent was to allow tribes to contract with the federal government to provide services to their membership, it is increasingly being used to expand tribal jurisdiction over non-Indians.  This ignores the reality that non-members are not legally or constitutionally protected within a tribal government system, a structure that often fails to protect even its own members.  Through state – tribal cooperative agreements, Montana also endorses the expansion of tribal jurisdiction over non-members.  We assert that these policies are unsupported by federal statute, case law, or practice, and are unconstitutional.

Considering the information presented in this booklet it is important for decision-makers to evaluate all Tribal requests for funding in the context of the extensive federal funding provided to the Tribe.  Government officials must ensure that any funds awarded are not for services provided elsewhere, and instead use the funds for other purposes which may or may not be related to the purpose for which they were federally funded.

For more information on the data in this booklet, contact any of the following organizations:

Concerned Citizens of Northwest Montana: 
Address:        P.O. Box 3601, Kalispell, MT 59903
Email:            montanavoter@startmail.com

Montana Land and Water Alliance:
Address:       P.O. Box 1061 Polson, MT 59860
Phone:         406-552-1357
Email:          4mtlandandwater@gmail.com

Willman & Davis Intergovernmental Resource Services:
Phone:         509-949-8055
Email:           toppin@aol.com

Copy of Booklet:  Funding Our Own Demise

The Creature from the Compact

©2017 Concerned Citizens of Western Montana

A year since the ruling by Judge Manley, the final documents have been submitted to the MT Supreme Court just this month in the FJBC v. Montana case.  All of the documents that were submitted to the MT Supreme Court can be found here for the case FJBC v. State (Supreme Court Docket DA16-0516).  Recall that the simple question presented to the Court–

  • whether the legislature’s vote was constitutional

became

  • whether the severability clause in the UMO could be used to remove the section of the Compact which gave the state immunity from monetary damages.

The FJBC final brief used the substantive observations of Judge Manley regarding the UMO to show that the underlying unconstitutionality of the UMO and Water Management Board (WMB) cannot be cured by simply removing the state’s immunity from monetary damages, costs, and attorney’s fees.

This Board is a legal creature never apparently seen before.

The Unitary Management Ordinance and its Board is an entity that was created anew in the CSKT Compact. The creation of a new law was unnecessary according to Article 5 Section 12 of Montana’s Constitution:

Local and special legislation.The legislature shall not pass a special or local act when a general act is, or can be made, applicable.

The Montana Water Use Act is ‘legislatively applicable across the state‘, and perfectly sufficient to manage the existing state law-based water rights within the Flathead Reservation, as it has been on every other reservation and with every other compact within Montana.  The Tribes have always elected to create their own Tribal Water Code to manage their water rights, and the state and Tribes cooperate on permitting processes if they affect the Tribes’ federal reserved water rights or state law-based water rights.

But the CSKT Compact assumes that the Tribes own all the water both on and off reservation, which the state went along with willingly.  As part of that unauthorized cession of Montanan’s property and civil rights, the Compact’s  UMO, or Law of Administration, removes state law from the equation, abandoning local state citizens from the protection of the laws and constitution of the state of Montana.

As a new and untested creature, the UMO is fraught with flaws, uncertainties, unknowns, and does not appear to be well thought-out. The UMO immediately ran afoul of existing law and the MT Constitution because the state granted itself immunity from monetary damages for injury to its citizens’ property rights .  Noted again by Judge Manley:

The Board is comprised of state and tribal appointees, and their appointee. The governments contend both that it is not a subdivision of the sovereign state or tribal government, but is clothed with all or more of the immunity which either entity has. Each government denies responsibility for the Board, while the two governments create and effectively control the Board by holding the power to appoint and remove its members. This Board is a legal creature never apparently seen before…Whereas now a party could bring an action in state court for damages, or Montana Water Court for determination of water rights, the new statute: 1) would eliminate monetary lawsuits against the state, and the Board and its members and staff, for tortious or other unlawful conduct…An obvious problem with that is that federal courts do not appear to even have subject matter jurisdiction to entertain such cases under current law

Remember on the issue that was presented to the Court–the constitutionality of the legislature’s vote–the FJBC won hands down.

The Tribal intervention in the case brought in the UMO and attempted to shift the case to focus on the compact.  The Tribes asserted that the UMO “severability clause”  could be used to jettison the immunity provision in Compact itself, and the rest of the compact could go on.

And that is what is on appeal to the MT Supreme Court, whether the severability clause in the UMO applies (a) to the whole compact, and (b) whether it can be used to change a provision that is integral to the compact as a whole.  The Montana legislature had an opportunity to fix this and it didn’t. Therefore the state really must want immunity from monetary damages, costs, and attorney’s fees.  From the Manley decision:

Interestingly, at oral argument, the Tribes and State had different answers to the question of whether the Board could be sued in state court for damages. The State contended it could; the Tribes contended it could not. This illustrates the amorphous nature of the board. If it is not a subdivision of the Tribes, or a tribal member, it is hard to understand why it could not be sued in state court, like any other non-governmental entity, for tortious conduct of its members, agents and employees. On the other hand, if, as the State contends, state courts have jurisdiction over the Board, it is hard to   understand why this jurisdiction would not extend to monetary lawsuits.

This is a fatal contradiction inside the Compact and UMO.  It cannot be implemented without damage to someone, and the Judge correctly pointed out that neither the tribal nor state governments take responsibility for any damage from the water rights change they are foisting on local citizens with this compact.

If the state wants this immunity to protect itself from lawsuits for monetary damages resulting from the compact implementation it can do so only under Article II, Section 19 of the Montana Constitution–get the two-thirds vote fair and square as legislative rule changes don’t apply to the Constitution. Especially when the citizens know.

And, if the clause granting Montana immunity from monetary damages is removed, then get ready for the multi-million-dollar lawsuits punishing Montana for property damage. But state officials don’t care, right?  They just let the taxpayers pick up the tab for their failure to protect Montana property rights.

To secure ourselves from defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.

Sun Tzu, The Art of War

 

 

 

 

Icarus and the CSKT Compact

© 2017 Montana Land and Water Alliance

In Greek mythology, Icarus is

the son of a master craftsman, Daedalus, the creator of the Labyrinth.  Icarus and his father attempt to escape from Crete by means of wings that his father constructed from feathers and wax. Icarus’ father warns him first of complacency and then of “hubris”, or pride and ambition, asking that he fly neither too low nor too high, so the sea’s dampness would not clog his wings or the sun’s heat melt them. Icarus ignored his father’s instructions not to fly too close to the sun; when the wax in his wings melted he tumbled out of the sky and fell into the sea.

This is the tragic theme of failure at the hands of hubris.  There is nothing wrong with ambition or setting one’s sights high. But when an otherwise good cause is infected with greed and advanced by fundamental mistruths–feathers and wax—it can only fly too close to the sun, its wax destined to melt and the feathers fall away.

What a perfect analogy for the CSKT Compact, and how interesting that we have in this story a labyrinth, and wings constructed of wax and feathers to look sturdy and usable but which fail under the heat of scrutiny. The labyrinth is certainly like the complex maze of theories, rules, and pages of the CSKT Compact that the public and legislators had to wade through and try to understand.  And the waxes that hold the contraption together—a wish list of things the treaty and laws supposedly give to the tribes and allow the state and federal government to do—are cloaked in the feathers of hubris.

This is an observation, and by no means are the citizens here done with the correct task of protecting water rights from the schemes and plans of the tribe, state, and federal government under the spell of hubris.  But the wax and feather maze of the compact has melted, and now brings certain litigation:

  1. Property takings. On its face, the Compact plan for the Flathead Irrigation Project (FIP) is a taking of property rights in water of thousands of FIP irrigators including tribal members. No one has to wait for the taking and damage to occur–it exists on its face. This is why the state wanted to exempt itself from any liability involving costs, damages, and attorney’s fees.
  2. Constitutional Violations. The State of Montana has violated numerous clauses of its own constitution in the Executive, Judiciary, and Legislative articles. These issues have been identified and legally documented in the last five years and pave the way for numerous actions that can proceed now. This is also why the state wanted to exempt itself from liability for damages.
  3. Civil Rights Violations. The violations of the civil rights of Montanans by certain governmental officials is also evident in the entire compact proceedings…all that wax that held the feathers together by its existence violated the civil rights of every person in Montana and could compel actions by large groups of citizens. If a man can be said to have property in his rights, then avoiding financial liability for civil rights violations is also what the state intended.

Whatever is next in the court arena, the state, the tribes, and the United States may have trapped themselves in their own labyrinth and hubris…the compact ball of wax and feathers that cannot be supported by fact, law, history, or sunlight.

The Right Recusal

©2017 Concerned Citizens of Western Montana

Recuse: to disqualify (oneself) as judge in a particular case; broadly :  to remove (oneself) from participation to avoid a conflict of interest

There is an old saying that “if you’re ticking off everyone on both sides of the issue, you’re doing the right thing and a good job.”

That is probably true. Does that mean that if you’re only angering one side of the issue, you’re biased and are doing a bad job?

One could say that the proof is in the pudding, or product, but why wait until one side is irreparably damaged?

These questions relate of course to the appointment of one Alan Mikkelson to the position of Deputy Commissioner of the Bureau of Reclamation.  The question for Secretary Zinke is, which Alan Mikkelson did you appoint?

This one: September 30, 1993; same statement in 2003

In all three decisions, involving hunting, fishing, and land and water resources, the court has clearly stated that the affected tribes do not possess such power.   On the Flathead Reservation, however, the Confederated Salish and Kootenai Tribes continue to grasp for power, ignoring such decisions.   This incessant grasping for power by the tribes thus provokes the reservation population (18,000 non-Indians, 3,000 Indians), who simply do not want to be subjected to a government in which they have not right of participation.   (The vast majority of land located on the valley floors of the reservation is privately owned by non-Indians.)   Given the rulings from the Supreme Court, an 85% non-Indian population, a huge amount of privately owned land and an aggressive tribal government, conflict is nearly inevitable.

Or this one? April 24, 2013

There continue to be lies and falsehoods written about the Flathead Reservation Compact and the irrigation project Water Use Agreement. Absolutely nowhere in either document do the Confederated Salish and Kootenai Tribes claim all water on and off the reservation belongs to them. Yet some people persist in the lies, apparently to continue to promote fear and hysteria. Read the compact and Water Use Agreement on the Department of Natural Resources and Conservation, CSKT or Flathead Joint Board of Control websites.

The one thing that all of us remember is Mikkelson’s refusal to acknowledge the harm he was perpetuating on FIP project users’ water rights at the same time he was “representing” the FJBC. Other ethical behavior is troublesome, including his role in the break-up of the FJBC.

In our view, Secretary Zinke has no choice but to require that Alan Mikkelson recuse himself from anything involving the Flathead Irrigation Project, project turnover discussions,  Kerr Dam, or the CSKT Compact.

At the Secretary’s confirmation hearing, he pointed out the the Interior Department has a “huge trust issue with the American public”, and that it was his goal to increase that trust as part of his tenure.  Of course his first action was to appoint the most untrustworthy and damaged individual he could to a very important position.The right recusal could make a big difference here, otherwise, the Interior Department will continue to be an non-trusted government agency.

The Montana Land and Water Alliance put these thoughts in writing to Secretary Zinke:

The history and record of Mr. Mikkelsen’s work as briefly described above render him unfit for any work on the operation, management, funding, organization or any aspect of irrigation in the FIPP or the Mission Valley Power 638 contract.

If this compact that Mr. Mikkelsen worked on  is ratified, it will have devastating impacts on the agricultural economy of the western Montana and  negatively impact the lives of the 350,000 citizens who reside here. Thus, the vast majority of individuals in Western Montana have no confidence in Mr. Mikkelsen’s ability to fairly and objectively consider their position on these extremely significant water matters.

While we acknowledge the authority of the Secretary of the Interior to select the members of his executive team, we wish to again state our dissatisfaction with the Secretary’s choice of  Mr. Mikkelsen as Deputy Commissioner of the Bureau of Reclamation.

Furthermore, we respectfully request that Mr. Mikkelsen be required to recuse himself from any of the Department’s activities with regard to the CSKT Compact, the Flathead Irrigation & Power Project and project turnover discussions,  or the Mission Valley Power 638 contract.  He has absolutely lost the trust and confidence of many of the irrigators in the FIPP,  except of course those he openly favors.

Choose wisely, Mr. Secretary.

Western Legal Foundation Seeks End to Race-Based Awarding of Federal Contracts

In light of our recent post on Self Determination:  A Federal Experiment Gone Awry, we were pleased to see this article from Mountain States Legal Foundation, tackling this issue.

Mountain States Legal Foundation:

DENVER, CO.  A nonprofit, public-interest legal foundation that won a landmark victory over race-based decision-making before the Supreme Court of the United States today filed a petition for writ of certiorari on behalf of a Texas company that suffered defeats in its attempt to end the federal government’s use of race to award contracts as unconstitutional, both before a federal district court and a court of appeals.  Mountain States Legal Foundation (MSLF) had advised the District of Columbia federal district court that use by the Department of Defense and the Small Business Administration of a provision in the Small Business Act to award federal contracts on the basis of the race of the business owners and operators is unconstitutional.  Its brief was filed as a friend of the court in the federal lawsuit brought by Rothe Development, Inc., a Texas corporation that bids on and performs contracts for computer systems and programming services.  In 1995, MSLF prevailed in a similar case at the Supreme Court of the United States in the landmark racial preference lawsuit, Adarand Constructors v. Peña, that Time called “a legal earthquake.”  Over a strong dissent, a three-judge panel ruled the provision was not race-based.  MSLF now represents Rothe Development, Inc.“We ask the Supreme Court to declare what all involved in this case know, which is that the statute in question provides for a racial set-aside or quota, and thus must face judicial application of strict, and usually fatal, scrutiny,” said William Perry Pendley, president of MSLF.Rothe often bids for contracts with government agencies, including the U.S. Department of Defense (DOD) and branches of the military, to service computer systems.  In 1998, Rothe lost a bid for a DOD contract to another company, despite being the low bidder, because the contract was awarded pursuant to a race-based program.  In 2008, the United States Court of Appeals for the Federal Circuit ruled that the race-based program, on its face, as reenacted in 2006, violates the equal protection component of the Due Process Clause of the Fifth Amendment to the Constitution.

Unfortunately, the DOD continues to award contracts on the basis of race-base through use of Section 8(a) of the Small Business Act, which sets a “government wide goal” that “not less than 5 percent of the total value of all prime [federal] contract and subcontract awards for each fiscal year” be awarded to socially and economically disadvantaged small business concerns.  The Small Business Administration (SBA) is authorized to contract with DOD to provide goods and services and then to subcontract that work to qualifying businesses, either on a “sole source” or on a “competitive” basis; most of the DOD Section 8(a) contracts are sole source.  To participate in the program, a firm must be 51 percent owned and controlled by socially and economically disadvantaged individuals, defined to include “Black[,] Hispanic[,] Native[,] [and] Asian Pacific Americans  . . . and other minorities”).

Mountain States Legal Foundation, created in 1977, is a nonprofit, public interest law firm dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

Help protect constitutional liberties and private property rights, and promote limited and ethical government and the free enterprise system:

Donate

Zinke Halts Transfer of National Bison Range to Tribe

@2017 Concerned Citizens of Western Montana

From a Missoulian article:

“Interior Secretary Ryan Zinke has reversed course on plans to hand management of the National Bison Range to the Bureau of Indian Affairs…”

In the article Zinke is quoted as saying:

“I took a hard look at the current proposal suggesting a new direction for the National Bison Range and assessed what this would mean for Montana and the nation,” Zinke said in an email to the Missoulian. “As Secretary, my job is to look 100 years forward at all of Interior’s resources. I recognize the Bison Range is a critical part of our past, present and future, which is why I have changed course.”

The CSKT response:

We understood that President (Donald) Trump and Secretary Zinke himself had promised about not selling off public lands, but from my perspective, that isn’t what this is,” Finley said Wednesday. “It’s more of a restoration of reservation land, which is different than selling public land. That was the understanding with the previous secretary of interior. We’ll have to speak with the secretary and the (CSKT Tribal) Council, and look at what our possible options are going forward.”

We disagree with the tribe’s assessment.  It is not a restoration, it should instead be called exactly what it is:  a proposed transfer of wealth to a tribal corporation by taking public lands, and transferring that to the Tribes. Had the plan been approved, it would have resulted in a transfer of public lands to a special interest federal corporation at the expense of every citizen of this country.  And access to that Bison Range would have been used as more extortion of the public.

Note to Chairman Finley: What ever land has been restored to the reservation was completed in 1934 with the Indian Reorganization Act.  Now its time to be productive citizens, not living on the public dime.

It also is one more avenue toward the undermining of our local government, and once again pushes the envelope of attempting to establish precedent for returning ceded lands back to tribes, not through the will of Congress, but through the will of an appointed bureaucrat.

Keep in mind that the tribes were compensated for their ceded lands, including the Bison Range and title to them was extinguished at that time.  Payments to the CSKT were awarded through various congressional actions as well as Indian Claims Commission and Court of Claims complaints that the tribes took against the United States many decades ago, and these actions were intended to be final resolutions of the tribe’s complaints.  The Tribes complaints and legal claims are now stale claims that were settled long ago.

Do you recall the term “Groundhog Day”?  Why is it that through the decades we continue to deal with the same issues over and over and over again?

The bold movement proposed in this latest Bison Range go around, to transfer what are public lands to the CSKT, very much reminds us of a 2012 request by the United Nations to “restore” Indian lands back to the tribes.

For more information on Zinke’s Bison range decision, including the uninformed and politically correct responses of our “congressional delegation”, please see the Missoulian article at this link.

As far as options being considered by the tribe, we frankly wouldn’t be surprised if the CSKT attempt to use their congressional lapdogs, particularly Jon Tester,  to present legislation to achieve the tribe’s objective to own the Bison Range once again.

This tired old game has now been completely exposed and will not stand. the Tribes are self-determined and do not get to exercise jurisdiction over public lands or the private resources of others.

Montana Common Core “Sovereign Math”

©2017 Concerned Citizens of Western Montana

We recently mentioned the revenue sharing agreements that the state of Montana has with each of the seven tribes located within its boundaries.  Since 2006, the tribes have received more than $100 million in revenue from the state of Montana for these various agreements.  This information has proudly been reported by the Montana Governor’s Office of Indian Affairs annual reports.  Here is a one page summary of the revenue sharing agreement monies paid to Montana tribes since 2006.

While we cannot speak to all of the agreements, we would like to briefly look at one, the gasoline tax sharing agreement between the state of Montana and the CSKT.

Below is information pertaining to the amounts paid out by the state of Montana for 2016 (the numbers in red come from the state of Montana Department of Revenue office):

DESCRIPTION NON- TRIBAL TRIBAL TOTAL
Lake County Population * 23,410 5,340 28,750
Lake Co Gas Tax Revenue remitted to state by distributors $2,800,000
Gas Tax Revenue remitted to the CSKT  $611,000 $611,000
Gas Tax Revenue Remitted to Lake County ** $145,000 $33,000 $178,000
Total Gas Tax Benefit $145,000 $644,000 $789,000
Per Capita $6.19 $120.60 $27.44

*   Population figures are estimates from federal census and state information. 

** This chart assumes that Lake County gas tax receipts are distributed evenly between all citizens the county serves.

How is this kind of disproportionate distribution even close to acceptable, and why is Montana collecting and remitting any tax monies to the tribes?

HOW DID REVENUE SHARING AGREEMENTS COME ABOUT?

In a 2015 memo to the State Tribal Relations Committee, Andy Huff, counsel for the governor’s office conveyed the following:

Because the increasing complexity of jurisdictional questions within reservations, the State of Montana passed State-Tribal Cooperative Agreements Act in 1981. The authorizes to enter into cooperative agreements the provision services on for other reasons, including law Act, as originally passed 1981, contained no provisions specific to tax agreements. HB 25, 309, L. 1981. The language of the bill, however, was broad enough to encompass tax the history the bill indicates that taxes were contemplated as an area covered by the bill.

He then goes on to say:

By 1990’s there were U.S. Supreme Court decisions involving taxation motor fuel, alcohol, cigarettes, and oil and gas on Indian Reservation’s…….

…… The 1993 state legislature took the Supreme Court up on its suggestion of cooperative tax agreements, amending State-Tribal Cooperative Agreements to explicitly provide for such agreements.  Both the Montana Departments of Revenue and Justice supported amendment of the Act to explicitly authorize tax agreements and revenue sharing….As stated in the Act, “It is the goal of the legislature to prevent the possibility of dual taxation by governments while promoting local, and tribal economic development.” § 18-11-10 1 (3), Mont. Ann….

…. The Act allows a public agency to enter into an agreement with a tribal government to “assess and collect or refund any tax or license or permit fee lawfully imposts by the state or a public agency and a tribal government and ot share or refund the revenue from the assessment and collection.” § 18-11-103 (1)(b), Mont. Code Ann.

For reference, in 1993 Marc Racicot (R) was governor and Joseph Mazurek (D) was the attorney general.  It was also in 1993 that Marc Racicot signed a proclamation setting the state on the pathway to establishing sovereign “government to government” relations with the tribes.

IS A COURSE CORRECTION REQUIRED?

How is it that the CSKT get more than 4 times the money, when the county has 5 times more population to support, and most of the roads to maintain?

Do such actions by the state of Montana serve to undermine local governance through their tribal government deference policies?

Does the same disproportionate situation exist for the other local governments located in the same county as the other six Montana tribes?

Why should the state of Montana collect and remit tax revenue to any tribe?

Gasoline tax was intended to be for road maintenance, and the CSKT is clearly the recipient of the lion’s share of the gasoline road tax funds for the county.   Is this inequity the reason that our roads are in such bad shape?

What is the CSKT spending their windfall on?

Can or will this PANDORA’S BOX be used to expand tribal tax windfalls to things such as agriculture property or property tax?  How about our state income tax?

What, if anything, can or should be done to correct this problem?

It appears, at least in this case, that such tribal revenue sharing agreements have succeeded in their stated goal of expanding “tribal council economic development”.  But this boon for the CSKT Corporation treasury has clearly been to the detriment of of our local county government and the services they are able to provide.

We cannot help but wonder which administrative idiot, working for the state of Montana, “negotiated” such a ridiculous, one sided, and lopsided contract with the CSKT?

Perhaps it was someone from the Montana Reserved Water Rights Compact Commission.