Waking the Sleeping Giant

©2018 Montana Land and Water Alliance

We have been waiting for the moment when compact proponents would cross a line and fail in their relentless efforts to destroy the Flathead Irrigation Project. That point came last week when a judge, pursuant to a lawsuit funded by wealthy loudmouth compact proponents, dissolved the Flathead Joint Board of Control (FJBC).

The irony is these compact proponents sued to dissolve the FJBC with the intent of reforming it so that they could assert compact proponent control over the FJBC and force the CSKT Compact down their neighbors’ throat.

Well guess what?  The FJBC may not be reformed as the individual irrigation districts now see this as having been freed from the incompetent “leadership” of compact proponents, and those commissioners who just “want to get along” regardless of the  intended uncompensated and unconstitutional theft of property rights represented by and inherent in the CSKT Compact.

Make no mistake here: the wealthy, loudmouthed compact proponents want the irrigators to lose their ability to protect their property rights, paving the way for the improper and unlawful transfer of the water rights and project infrastructure to the CSKT as described in  Tester’s Bad Burrito, or S. 3013. These compact proponents—agents of the state and tribes–just blew it by their actions.

As long as this Board existed and was compromised by the Flathead District and other willing “get along-ers”, it was the largest and easiest target for the proponents, Tribes, and the state of Montana to push a central feature in the compact–the transfer of the bare legal title of the irrigators’ water rights to the Tribes for their control. Since that title would be transferred, the Tribes would claim and the state would comply with the wholesale transfer of water management authority to the unconstitutional, ill-formed, and unaccountable Unitary Management Board.  The big fat target is no more.

For those of you who still think this is an “Indian Irrigation Project”, now is the time to face reality: it is NOT.  The FIPP was built for all residents in this area, and by 1924 over 80% of the project was serving non-Indian settlers invited by the United States to settle the remaining unallotted lands.  Oh, and don’t forget that Tribal members sold their lands to the settlers. These lands were not “stolen” as some would have you incorrectly believe.  The Tribes have in fact received millions of dollars from the federal government to “repay” them for irrigated land the Indians sold to non-Indians. In 2018, over 90% of project lands are owned by non-Indians.

The Tribes can have their own opinion of this–aka its an Indian project– but they are not entitled to their own facts.

Project Turnover–Time to Move Forward

As required by Reclamation law and by the 1908 amendments to the Flathead Allotment Act, when the construction costs for the irrigation project are repaid by the project irrigators, the management and operation of the project shall be turned over to the landowners therein.

While some privately worry that the FJBC dissolution means that the project will never be turned over to the irrigators, its time to think again.  The FJBC was formed to achieve project turnover, that much is certain.  However because of the politics, compact, questionable “consultants and advisors”, and the incompetence of previous FJBC commissioners, that mission has failed.  But does that mean that the operation and management of the FIP cannot be turned over to the “project landowners” within the three, soon to be five, separate irrigation districts?  In our view, the answer is NO.

Face it: under the scenario of the project landowners having the authority for project operations and management, the FJBC would not have been the entity to manage the project.  Even in current  discussions of project turnover, and in the current lawsuit which was filed under both the FJBC and the three irrigation districts, Commissioners have been designing an entity that is separate from and NOT the FJBC.

The irrigation project management and administration would be left up to an irrigator-determined and paid technical staff, consisting of engineers, agronomists, hydrologists, economists/accountants, and ditch riders, supplemented by fish biologists and water quality specialists to inform the management of the project given existing instream flows and water quality objectives. The Tribes presumably would participate through staff who would manage  the 10% of Tribal lands within the project.

If we are to think at all about project management and administration, its time to think big, and think outside the box we have placed ourselves in—i.e., that the FJBC must exist to turn over the project management and administration to the landowners.

The CME: A Fake FIP Project Turnover?

The Cooperative Management Entity (CME), part of the agreement with the Department of the Interior, the irrigators,  and the CSKT, was destroyed by the withdrawal of two irrigation districts from the FJBC in December 2013.  Again a group of small-minded rogue commissioners who initiated this withdrawal—without permission from or agreement by their constituents–did this so as to push the CSKT compact forward.

Our analysis indicates that these commissioners had planned to use the CME as the entity to “agree” to the Compact since the FJBC would not.  Notice, if you will, the parallels between the Compact Implementation Technical Team (CITT), which was a last minute addition to the 2014-15 Compact because the irrigators did NOT support the compact.  The CITT is effectively a way to bring back the CME to implement the Tribes’ plan, which is to destroy irrigation in favor of instream flow.  Here again, the compact proponents’ plans failed when they intentionally broke upf the FJBC.

The reality of the CME was that it had the wrong proportionate representation according to the law and irrespective of the “approval of the Secretary”.  When 90% of the project is owned by non-Indians, who in part bought the land from Indians who sold it, and only 10% in Indian hands, why was it that the tribes had 50% representation and essentially controlled the CME because any tie was broken by the BIA member of the CME?

The CME was an illusion that gave irrigators a false sense of “local control”.  It was never designed for local control, it was always meant for Tribal control.

The only salvageable product of the CME is the 2010 Operations Plan, which is now the only legal plan that exists to operate and manage the Flathead Irrigation Project.  That’s a good thing.  It means that while the irrigators work in their own districts, litigate the issue, consider a plan for organization, operation and management, and while the compact is being considered by Congress, a solid operations plan exists to simply run the project as is without an FJBC.  That includes the delivery of non-quota water in the spring, which was approved in the 2010 plan.

Furthermore, the CITT is constrained because it cannot, pursuant to an unapproved compact, change or “adaptively manage” irrigation operations in a federal irrigation project.  To do so would turn federal law on its head, and transform a facial taking of water rights to an actual taking.

State law cannot supplant federal law in a federal irrigation project.

Next Steps?

We believe there are a number of steps that can and should be taken that will restore and strengthen the irrigation districts’ desire to take over the management and operations of the Flathead Irrigation Project:

  1. Request that the Secretary of the Interior, through the BIA, manage the FIP according to the 2010 operations planRemember that everyone–the tribes, the irrigators, and the United States–agreed on and cooperatively developed this plan.
  2. Continue the litigation forcing the Interior Department’s turnover of the operations and management of the project to the landowners, and continue to develop the management entity–separate from the FJBC– as has been underway by the districts for over two years.  Remember that this litigation is in the name of all three of the districts and the now-defunct FJBC.
  3. Break up the Flathead Irrigation District into two or three separate districts so as to eliminate the ability of one district to control all the other districts.  This should be done before any consideration of forming a new FJBC.
  4. Remove liens on irrigator lands. The FIP was paid off in full in 2003.
  5. Learn from the mistakes of the past FJBC. In addition to administrative procedures and better communication with irrigator constituents, consider eliminating all avenues for the breakup or control of the FJBC by a small group of rogue commissioners or a single district.

Importantly, remember that no amount of nicey-nice talking with the CSKT will change their objectives, which have been clear for more than a decade.  They want total unequivocal control of the FIP so that eventually they can dismantle it.

The sleeping GIANT—the irrigators of the Flathead Irrigation Project–is WOKE.  You have more power than you realize, now harness it for your future!

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How Citizens Exposed and Defeated the CSKT Compact

©2018 Montana Land and Water Alliance

Yes, you read the title correctly, and no, the work is not done yet.

But, we have not been defeated precisely because we exposed the CSKT Compact for what it actually was: a redistribution of wealth hidden beneath an “Indian water settlement”. The state of MT executive collaborated with the Tribal government and the United States to deprive state citizens of a number of constitutionally-guaranteed rights.

Before we begin, let us be clear that the CSKT compact harms individual Indians as well as non-Indians, especially Indian irrigators who will also have their water reduced under the compact’s provisions.  Individual Indian allottees are harmed in the same way that the Crow allottees were harmed by the Crow compact settlement. The fight here recognizes all citizens’ water rights are harmed.

The Exposure

The last thing that the compact proponents wanted was to have the true contents of the compact revealed to either the public or the legislature.  That’s why the CSKT Compact was buried in 1,500 pages of text, abstracts, appendices and maps, all of which were necessary to understanding the plan and operation of the compact. There were untested legal theories, clear misdirection and avoidance of federal law, and violations of state and federal constitutions that led to the illegality of the CSKT compact which were buried under some magic of “ten years of negotiations”, and “hard choices”.

We persisted, and despite being ridiculed, ignored, and defamed, the citizens uncovered many truths about the compact, among them:

  • The so-called “complexity” and length of the compact were used to justify propaganda and platitudes–instead of facts–delivered in so-called “public education” meetings held in 2012 and to the legislature in 2013 and 2015.  The uncomfortable facts of the compact would never have gotten to the public without the citizens’ efforts and the citizens’ organization of more than a dozen public truth-telling meetings.
  • The “science” beneath the compact was promoted as impeccable until the citizens compelled a legislative committee to examine it, and then oops! the state itself found out that none of the so-called science could be used to justify the actions in the compact.
  • The legal “justification” for the Compact was shattered in every way through the work of attorneys hired by citizens, from the bogus claim that Article III gave the Tribes off-reservation water rights instead of access, to the state’s abandonment of its constitutional obligations to its citizens, and to the unconstitutional takings that resulted from the Water Use Agreement, the CITT, Unitary Management Board, and Unitary Management Ordinance.

As a consequence of our collective work, the Compact Commission had to lie to and mislead the public, the legislature had to change the rules to pass the compact with a simple majority, the Attorney General had to abandon the rights of its citizens guaranteed by the U.S. and Montana Constitutions, the tribes spent millions on advertising and lobbying, and the courts had to rule politically instead of based on the law and facts.

But, as a state law now, the inconvenient truth is that the CSKT Compact remains unconstitutional despite the political opinion of the Montana Supreme Court. And therein lies our opportunity to stop the compact still here in Montana.  On the federal level, fortunately, Tester’s bad burrito is dead–for now…but we don’t think it will be popular for his campaign to run on an unconstitutional taking known as the CSKT Compact.

All of the arguments you see now in the press in favor of the compact are not based in fact.  For example, the state’s new line is that “the CSKT Compact was the most examined compact of any compact ever”, when the truth is that the facts leading to the unconstitutionality of the compact were never examined or entered into a court of law but were instead deliberately buried.

These state employees were so busy forcing the compact down our throats and desperate to get it passed they didn’t notice that the whole show has been unveiled, with names attached. Ha.

Revealing the State and Tribal Road Map

Importantly, the citizens’ efforts got the state, tribes, and federal government to reveal their road map for the future.  And this is why every Montana citizen should be alarmed at the state’s role in forcing the CSKT Compact on its citizens–we’re going to see more rogue behavior by them all.  Here are some glimpses of the road map ahead of these entities:

  • The Tribes.  Aside from the compact bold and flagrant takings, and Tester’s Bad Burrito, the Tribes demonstrated their long term road map through their 2014 lawsuit “against everyone”. While ultimately dismissed, the lawsuit demonstrates that the goal is the total ownership of all land and water within the reservation boundaries and the uncompensated taking of private property.
  • The State of Montana Attorney General.  The MT AG’s response to the fact that the compact represents a taking under the Constitution was rebuked by AG Fox under the color of law by stating that the 5th Amendment takings only applies to citizens that are “similarly situated”, and that non-Indian citizens on the reservation “should have known” when they settled that the land and water belonged to the Tribes and that they would be under Tribal jurisdiction. Every Montana citizen should be concerned about the safety and security of existing property rights given the Attorney General’s propensity to ignore them. The breathtaking failure of the state of Montana to represent all of its citizens–not just the CSKT tribal corporation–resulted in a reckless experiment called the CSKT Compact imposed upon 360,000 people in 11 western Montana counties.  The goal appears to be the wholesale delivery of private property rights, water, and natural resource control “to the Tribes”, actually the federal government. In both the state and federal agency or legal spheres, no one represented the non-Indians.
  • The Federal Government.  The federal government’s voracious appetite for the control over state-based water resources and private property rights was further exposed by the nature of this compact, which expanded the Tribes federal reserved water rights beyond what is legally allowed.  The BIA, constantly threatening the irrigators over the CSKT Compact, promised to increase instream flows and deprive irrigation water use over new instream flows pending an environmental review (which never happened). Simultaneously with the introduction of the CSKT Compact were several large scale federal efforts which would have shifted managerial control over natural resources to the federal government, again under the guise of “tribal” settlements or jurisdiction.  Witness the Klamath Basin, the Wyoming v EPA case, the Waters of the United States Rule, and the effort by Senator Daines to “treat” public forests and rangelands as tribal lands for the purpose of planning and management.  While the advent of the Trump administration offers significant opportunity to stem this federal tide, we have to watch our own congressionals and agency leaders.

Thus the road map for the state, tribes, and federal government will consist of the continued attempt to destroy property rights through legislative fiat—legislation crafted by the crafty and passed before an uninformed and unsuspecting legislature; filing of lawsuits along the lines of the Tribes’ 2014 lawsuit; federal legislation aimed at asserting federal control over natural resources under the guise of tribal issues, the environment, or endangered species; and other thinly veiled pretexts for resource control.

When things slow down a bit, remember the pattern—the Tribes always try something, and if it fails, disappear for a few years, and then try again counting on everyone to forget.  And that is why now you must take the time to study and know. THIS is probably the biggest lesson from this compact—don’t forget.  Remember, ‘the price of liberty is eternal vigilance’!

But for now, all of the state, tribes, and federal malfeasance has been exposed and documented. The facts that led directly to the illegality and unconstitutionality of the CSKT compact, however, were not allowed to be presented to or considered by the public, legislature or the Montana courts. Frankly, the work of citizens was treated by the state, legislature, courts and compact proponents as unworthy of consideration.  While true and undisputed, these facts–and citizens–were ignored and minimized, as the press willingly complied with spreading the state and Tribes’ propaganda. Whose money bought all the lobbyists, save three, and legislators in Helena in 2015?

Because of our efforts the years-long exposure of the unconstitutional CSKT compact if now advanced appropriately and by all, will alter the final form of a  “CSKT Compact”, if there is one, and thus ultimately the final form of the state law that now exists.

Which brings us to the present day.

The Road Ahead

Although we may have won the substantive battle on the content and foundation of the compact, we did not win the political battle that would have flatly stopped this compact in Montana.  There is always a silver lining

But, no one is disappearing because the issues remain and activity still goes on behind the scenes. The remaining issues now give us an opportunity to continue to finish off the compact in Montana on a number of different fronts, while other actions do the same thing at the D.C. level.

First, there is a strong legal and factual basis for action at both the state and federal levels:

  • At the local and state level, which may end up in a federal arena, there are currently ripe legal arguments against the CSKT Compact that will constrain any implementation on and off the reservation. In broad scope these are described in the MLWA video.  We need to continue our discussion and exchange of ideas. There is also necessary continued education of our children, neighbors, community, and legislators as to the true facts behind this compact. We must make sure that this never happens again in Montana.
  • At the federal level, there are ripe legal actions associated with on-going federal actions; documented factual information must be submitted and presented to the agencies and Congress through the appropriate channels. The presentation of these facts to agencies and decision-makers will inform and support their review and ultimate revision of the Compact.
    • Remember at this time Congress and the federal agencies can do what they want with the compact and no state or tribal approval is required.
    • Remember also that unless we convince the agencies and Congress of the necessary changes through our testimony on whatever legislation comes forward, we do not get a chance to substantively change the compact after it is approved by Congress and signed by the President.

Second, there is the on-going effort to prevent both the state and federal government, along with the Tribes, from implementing any part of the compact within the federal irrigation project.  This includes:

  • ensuring that non-storable (formerly non-quota) water can be delivered in the spring,
  • ensuring that stream flows and reservoir levels be maintained in compliance with the 2010 operations plan
  • no new ‘adaptive management’ plan be implemented in the project until congress ratifies the settlement

There are both legal and non-legal ways to accomplish this goal.

   Will State Continue to Interfere in a Federal Irrigation Project?

A new CITT (Compact Implementation Technical Committee) meeting has been scheduled for January 30, 2018, from 9:30 a.m. to 1:00 p.m. at the MVP conference room in Pablo.  This CITT is authorized by the CSKT Compact, which is now state law, to implement “adaptive management” inside the irrigation project (Compact Appendix 3.5).

The truth is that the compact has been pre-implemented since 2013 and while the FJBC lawsuit was underway in 2015…a detail many have overlooked. The deprivation of non-storable spring runoff, increased instream flows–have been pre-implemented since 2013.

This pre-implementation of the of the Compact has changed irrigation operation provisions of the 2010 operations plan, which was approved by the FJBC, Tribes, and BIA.  This is the only legally-authorized operations plan for the irrigation project.  Nothing in the Compact’s Appendix 3.5-the adaptive management plan for a federal irrigation project–has been approved by the federal government.

Even the Tribes know this, as an affidavit was submitted as part of the Tribes’ documents in the FJBC v. MT case from Pete Plant stating the project was going to be managed according to the 2010 Operating Plan.

We also think that the 2010 FIPP operations plan is “settled” until a compact has been approved by Congress, notwithstanding the existing compact state law. And federal law regarding a federal irrigation project will override the provisions of the CSKT Compact as codified in state law 85.20.19 MCA

The CITT may plan and meet and discuss topics of interest,  but in our view may not implement any aspect of or spend, or direct the spending of, any state or federal money on compact-related activities in the federal irrigation project.  There are both legal and political avenues to ensure this outcome.

We continue to believe that off-reservation water rights associated with this compact that claim to be “co-owned” with the CSKT should not be implemented pursuant to the compact.

To be continued…as the river flows!

 

 

 

 

 

 

 

 

 

 

Tester’s Bad Burrito

©2017 Montana Land and Water Alliance

Continuing on the theme of our last post, we note that the very LAST thing the Tribes, State, federal government and compact proponents wanted was to have the CSKT Compact fully examined by the public or Montana legislature. They positively hated the concerned citizens movement across western Montana for discovering the truth of the compact and for talking about it.  We are sure that the simple majority of legislators that voted on the 2015 compact did not understand it and so passed it “obamacare-style”, hoping to find out later what was in the bill.

Despite the court proceedings that were underway, in May 2016 Senator Jon Tester introduced S. 3013 into the Senate–the CSKT Indian Water Rights Settlement Act of 2016.   The bill, which we understand was drafted by Tribal lawyers, once again masked and hid the contents of the CSKT Compact inside this new creation.  Simultaneously, Senator Daines introduced S. 3014, a “companion bill”, which would have treated off-reservation national forests and rangelands as “Tribal land” for the purpose of planning and management.  This can be seen as an attempt to make legal that which is not– solidifying the off-reservation water rights claims in the CSKT compact across other federal agencies.

Let’s take a look at the Tester effort:

Make no mistake–this is a bad burrito–maggots on the inside, just paper on the outside. A completely fake Indian water settlement.  Otherwise known as a crap sandwich.

Though this bill died in 2016, recent reports indicate that Tester will do this again in 2018, counting on the lobbying power and taxpayer monies of the tribes, their corrupt PR firm Mercury LLC and whatever inside influence they have in the Interior Department.

Let’s make sure that ship sinks.

Documenting the CSKT Compact Deprivation of Montana Citizens’ Rights

©2017 Montana Land and Water Alliance

The CSKT Compact was designed to prevent the public and legislature from ever understanding just what was being proposed. Think about it: a 1,500 page document, canned uninformative “public education” regurgitating the same talking points as propaganda, telling us nothing about the real intent, consequences, or effect of this precedent-setting compact on our lives, lands, property, and children. What a shameful display by our state government, especially, which is supposed to represent all citizens.

Nevertheless, our collective efforts to pick this compact apart and to KNOW what it does sent these people scrambling: for money, lobbyists, favors, weasel words, raw political power, and fake support to get what they wanted. Forget the effect on the citizens, property rights, and even the Indian people themselves who will suffer at the hands of their tribal government even more.

They also manipulated the legislative process to enable legislators to end run the Constitution of Montana and the United States through a tortured set of rule changes, excuse making, and violation of their oaths of office.  All this is recorded for all to remember.  Here’s how it unfolded in 2015:

Why is this important?  Because of Title 42 U.S.C. Section 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Stay tuned.

Company “B” and the CSKT Compact

©2017 Montana Land and Water Alliance

Now that the Special Prosecutor in the 2016 campaign-Russia investigation has named Mercury, LLC., as “Company B” in its first indictment, it is useful to remember the role Mercury LLC played in the attempt to convince the public that the CSKT Compact was in Montana’s interest.  Key players in the Mercury-CSKT compact link are former representative Denny Rheburg, republican lobbyist and Mercury employee Mark Baker, the CSKT, and several more big-name corporate sponsors and supporters of the Compact.

After the defeat of the CSKT Compact in 2013, the CSKT and other compact proponents moved quickly to spend millions of dollars in advertising, brochures, telephone surveys, and “robo calls” to push the compact.  The initiator of this effort, the CSKT, hired Mercury for a reported $2 million dollars to conduct this public pressure campaign.  Constant TV advertising and radio announcements inundated Montana for over a year in this effort, all accompanied by very slick paper advertising.

Recall also that Mercury was the  financial force behind the formation of “Farmers and Ranchers for Montana”, an organization that falsely claimed to represent all Montana’s farming community in support of the Compact. FARM then spent tens of thousands of dollars on inaccurate advertising through brochures, radio advertisements, and lobbyists.  How many organizations and endorsements of the CSKT compact did they buy?

Now we find Mercury under investigation for its role in money laundering, bribery, illicit lobbying, and the sale of U.S. uranium to Russia.  How much of the CSKT’s uranium resources and power generated at Kerr Dam is in play for foreign nations now that the Compact moves on to Congress, with Mercury still involved?

Compact Notes:

In August of 2012, Compact Commission Chairman Chris Tweeten sat back with his hands folded over the back of his head, saying “THIS is the way to do Indian water settlements.  When this is passed, we’re going to invite Hillary Clinton out here to show her how its done”.

Clinton?

Ok, now we know “how its done”, aka, a compact of this magnitude—money, kickbacks, bribery, lies, lobbying, avoiding citizen questions, covering up the real issues, calling compact opponents racist and sexist, politicizing the courts…

There was always more to this compact than a supposed “indian water settlement”…and we now know that without the underbelly of corruption in Montana and in Washington, D.C., the real citizens of Montana would never have let this compact pass the legislature.

Time to pull the curtain all the way back!

Why the MT Supreme Court Failed to Resolve Compact Fatal Flaws

©2017 Montana Land and Water Alliance

The failure of the Montana Supreme Court to address the simple constitutional issue presented to it will stand as another stain on a state that refuses to acknowledge the property rights and concerns of its citizens.  Remember, the President of the Montana Senate in 2015 called the compact the “first assault of Montana on all its citizens“.  We agree.

Although it has seemed “quiet” during the course of two years of legal deliberations–which by the way is a strategy to dissipate and stop all compact opposition momentum–there has been truly a lot going on.  We will unveil these efforts as time goes on and as we take the next steps in defeating the compact.

Below is a video we produced in 2016 which has been making the rounds in Congress and with various legal entities that are interested in assisting citizens defeat it.  Please grab your favorite beverage, or consider watching this 38 minute film in two parts.

This Compact will not stand in Congress if we do our homework and prevent the theft from occurring.

MLWA Statement on MT Supreme Court Decision

©2017 Montana Land and Water Alliance

STATEMENT OF MONTANA LAND AND WATER ALLIANCE ON MT SUPREME COURT DECISION in FJBC v. State

   Catherine Vandemoer, Ph.D., Chair

The MLWA expresses its dismay at the tortured political opinion delivered by the Montana Supreme Court in the case FJBC v. Montana.  Ultimately, we believe the Court failed to address the core issue: the constitutionality of the legislature’s 2015 vote on SB 262, the CSKT Compact under Article II Section 18 of the Montana Constitution. The MT Supreme Court avoided ruling on the constitutional issue presented in the case by ruling the MT constitution doesn’t apply to the CSKT compact, a bill passed in the state legislature.

Stunningly, the court ruled contrary to and despite the lower court’s proceedings and decision, which found that the compact had clearly granted the state immunity from costs, damages, and attorney’s fees for takings and damages that occurred during the administration of the compact under this new administrative law.

Further, the lower court had described the compact’s new water administrative system, to which the  state’s immunity was linked,  as a never-been-tried quasi-sovereign administrative system that would ultimately have jurisdiction over 28,000 Montana citizens. The lower court noted that in this new water administration system, no government entity involved—the state, CSKT, or federal government—would take responsibility for actions that could damage water rights, infrastructure, and property while implementing the compact. Indeed, in the lower court proceedings the state and tribes disagreed as to whether the new water administration entity or members could be sued in state court.

The nature of this new administrative system and board, and its immunity from costs, damages and attorneys fees, is at the heart of determining who is responsible for damages to the water users when implementing this compact. And it is why the immunity provision is relevant.  Obtusely, the court said in a footnote on page 9 of the decision that

“We need not consider whether the Board [new management system] itself is a state, tribal or federal entity because the only immunity provided is to “members” of the Board”

Not only is this statement legally and factually incorrect, the Court clearly referred to state public employees already having immunity to then claim the legislature’s vote was constitutional.  The court flatly ignored the issue.

The Court’s opinion and closed-door deliberations in a matter of acute public importance demonstrates that the Court had already made up its mind about the case and then tailored its “findings” to the desired outcome. The Court could not tolerate a public discussion of the embarrassing unconstitutional provisions of and contradictions in the existing compact and come to its desired conclusion at the same time.

In ruling the way it did, the Court defeated the purpose and protections of Article II Section 18 of the Montana Constitution.  The Court decision essentially agreed with Attorney General Fox that this constitutional provision “has been drained of all significance”.  What other portions of the state constitution will the state “drain of all significance” to achieve its policy objectives?

Let us be clear: this is not a victory for the still fatally-flawed CSKT compact or for Montana. Nor is the compact now “constitutional”.  And litigation on the compact is not over but can now earnestly begin, especially on the known constitutional violations underlying the provisions of the compact itself.

MT Supreme Court Ruling in FJBC v. MT

©2017 Montana Land and Water Alliance

In a disappointing but expected ruling, the Montana Supreme Court made a political decision to ignore Article II, Section 18 of Montana’s constitution and ruled against the FJBC  in its complaint against the State of Montana. The decision can be read here.

The compact allows the state, Tribe, federal government, and a new water management entity to unconstitutionally take and/or damage citizen’s water rights and/or infrastructure without compensation for damages, costs, and attorney’s fees.

A summarized nicely by a rancher and Alliance Board member,

…once again, Montana politics conspires against its citizen, this time via a State Supreme Court decision that says the passage of the CSKT Compact was constitutionally appropriately passed by the legislature. Never mind that the Compact created the UMB, an unprecedented  creation that nobody, even the judges, could explain. It said it was not “new” and therefore did not create a “new immunity”….

Looks like in Montana, we have our own swamp to drain–in all three branches of government.

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.

 

 

 

 

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