The Daines Fake News CSKT Compact

©2020 Concerned Citizens of Western Montana

Trying to be cute, but failing miserably, the Senator’s PR shop (aka the Tribes and Mercury Consulting) put out a press release titled “Fake News vs Fact: Montana Water Rights Protection Act”. 

Wow!  There is fake news in the title!  The “Montana Water Rights Protection Act” does not protect water rights!

Seriously, Senator what were you thinking?

Apparently, the underbelly of this “press release” is to try to damage anyone who opposes their plans to fold the CSKT Compact into another bad burrito.

Daines:  Montanans’ Concerns are “Fake News”

Did Steve Daines just call Montanan’s concerns about his “Montana Water Rights Protection Act” “fake news”?  He now sounds like FARM, or better yet, Mercury LLC, threatening Montanans for being concerned about the Senator and Tester’s joint voyage against property rights in the name of an “Indian water settlement”.

In a recent press release, the Senator decries what he calls “fake news” about his CSKT Compact. But if you notice, the only thing listed in the press release are the statements the Senator makes in his own compact, with no contrasting “fake news”.  So, which is it Senator—is your bill fake news, or are Montanan’s concerns and valid points about your compact fake?

One of the first glaring examples of the Daines Fake News CSKT Compact is its name:  “Montana Water Rights Protection Act”.  What and whose water rights does it protect?  Whose water does it take? We’d like a detailed explanation, watershed by watershed across the state of Montana so we can be sure it’s not just fake news.

Here’s another example of Daines’ fake news:  “97% of the off reservation water claims in the Flathead Basin have been removed”. But Senator, isn’t that 97% just the Flathead Lake claim? Why doesn’t that include removing all the tributaries, not just two? Why do the Tribes still retain Hungry Horse and the Swan, Clark Fork, Kootenai, and Bitterroot River?  Won’t they control Flathead lake by their demands on the lower Flathead River?

Why are there any “off reservation claims” in the Daines CSKT Compact, when the main concern is that these are not federal reserved water rights but are newly created water rights? And why are those off-reservation claims in western Montana depicted as “points on a map”, when they in fact represent only a measuring point for the required streamflow for tens of miles of stream course upstream of that point?

What about the 10,000 off reservation claims that include western and eastern Montana which were filed in Court after the CSKT Compact was passed? If the Bill requires the Tribes to give them up with prejudice, but does not require the United States to do so or refer to Court proceedings, isn’t that “fake news” presented to all Montanans? Can the Senator guarantee finality and certainty for all Montanans’ water?

Perhaps the worst “fake news” about the Daines CSKT Compact is about intent.  For years the Senator railed about the divisiveness of the CSKT Compact and that it would not happen on his watch.  Then he asked a group of citizens, including farmers, ranchers, irrigators, and legislators, to develop an alternative  and to ensure that it was “within the framework of the law of the Winters Doctrine”, who delivered to him in September 2019.  Then he pretended to have that product “reviewed” by the Department of the Interior, which didn’t review it, so he ignored it too, and then pretended that the “review” knocked out the very alternative he had supported and requested.  Are the Senator’s talking points the real “fake news”?

In this context it is ludicrous to believe that Senator Daines “solved a century-long conflict”.  He had the chance but didn’t take it, and unfortunately did not learn from Montana citizens and citizen legislator’s due diligence over years. All the information he missed can be found here:  https://tinyurl.com/Flathead-Water

It might be a good idea for the Senator to stop talking about “fake news”…because it looks like he is overwhelmed by his own.

Daines/CSKT Compact Undermines President Trump

@2020 DrKate

Like the misnamed “Montana Water Rights Protection Act”, Senator Daines’ CSKT Compact  undermines and does not support President Trump’s priorities and objectives regarding rural America’s economies, agriculture, ranching and the rich heritage of the western United States.

Even with the parading around of Interior Secretary’ Bernhardt’s cut and paste propaganda letter, and the staging of invitation for Attorney General Bill Barr to launch the missing Native women initiative “support the CSKT Compact”, the Daines Compact solves nothing, is nothing new, and now makes it worse for the counties and taxpaying citizens of western Montana. Oh, and by the way, the 10,000 claims remain an issue for Montana.

The Daines Compact represents the CSKT revenge on Montana citizens that opposed the CSKT Compact.  While the Tester bill’s “add on goodies” were easy to dismiss because they were so outrageous, the Daines Compact enables more targeted and severe takings in Lake and Sanders County, facilitated by the state, that will be hard for citizens to defeat and should never have been “added” to a water rights settlement in the first place.  Should this be called the “Daines Revenge Compact”, or “Shut up and Go Away” Compact, or “Shut up or I’ll Take More” Compact?

Let’s just take a look at Agricultural and Rural Prosperity, a clear priority of the President and the impact of the Daines Compact on Lake, Sanders, and Flathead County.   From the the Interagency Task Force  rural-prosperity-report, we look at just two broad goals negatively impacted by the Daines Compact:

Improving Quality of Life: Ensuring rural Americans can achieve a high quality of life is the foundation of prosperity. Quality of life is a measure of human well-being that can be identified though economic and social indicators. Modern utilities, affordable housing, efficient transportation and reliable employment are economic indicators that must be integrated with social indicators like access to medical services, public safety, education and community resilience to empower rural communities to thrive. Focusing and delivering key federal reforms will enable rural Americans to flourish and prosper in 21st Century communities.

  • The Daines/CSKT Compact will reduce the quality of life in Lake, Sanders and Flathead County.
    • By taking 50,000 acres of lawfully allotted state lands in Lake and Sanders Counties and transferring them to the CSKT in exchange for pennies or non-taxable federal land, both the tax base and value of land will be reduced, affecting house sales and purchases, inducing skyrocketing rents, and reducing funding available for schools and basic services.
    • By earmarking the Daines Compact funds for the counties to road culverts, the infrastructure around the counties, the Daines’ compact forces the County to focus on minor components of their major road infrastructure issues instead of the real issues and work.
    • The Daines Compact facilitates the destruction of the Flathead Irrigation and Power Project, despite its claims that monies will be used for its rehabillitation.  That’s the Tribes’ view of rehabilitation.
    • The Daines Compact permits the theft of  more than 360,000 acre feet of water from the Flathead Irrigation Project used by landowners within the project, reducing agricultural water deliveries by 40%-70%.
    • The Daines Compact makes Flathead County, and reservation towns, and cities dependent upon the CSKT and federal government for future water development
    • The Daines Compact fails to support Tribal self-determination and condemns the Tribal members to poverty and the control of an oppressive and retaliatory Tribal government
    • The Daines Compact severely challenges the future viability and responsiveness of county government to taxpaying citizen’s concerns, law enforcement, emergency services, and other vital services.

Supporting a Rural Workforce: To grow and prosper, every rural community needs job opportunities for its residents, and employers need qualified individuals to fill those needs. This requires identifying employment needs, attracting available workers from urban and rural centers alike, and providing the workforce with training and education to best fill the available needs. There are many opportunities to partner with local businesses and organizations to identify gaps, to work with all levels of educational institutions to provide career training and development, to fine-tune existing training programs, and to grow apprenticeship opportunities to develop the required workforce. Providing rural communities, organizations, and businesses a skilled workforce with an environment where people can thrive will grow prosperous communities.

The Daines Compact is simply not cognizant of what it takes to support a rural economy and government, nor of the workforce development needs.  We suppose his answer to rural economic development is “high tech jobs” like his comrades Tester and Greg Gianforte, which of course displaces the agricultural economy and rural lifestyle, shifting our state into a resort destination instead of a working, productive, fully employed state with self-determined and productive citizens.  Not service and high-tech jobs.

  • 1.9 billion dollars in the hands of a 70-member Tribal bureaucracy plus 30 lawyers encourages dependence of the Tribal community; is antithetical to the development of a fully trained workforce; and will most likely be used to solidify political support, purchase land, and otherwise attempt to “return the reservation to pre-1855 conditions.

The Senator falsely invokes the support of the Trump administration, and the President himself, for the destruction of Lake, Sanders, and Flathead County and the increasing dependence of the Tribal population on the federal government.

Remember the Tribes have given up nothing.  The Daines Compact still keeps SB 262, and is so unspecific you can drive two mack trucks through it at the same time.

Please contact the President at http://www.whitehouse.gov  and send him a message, letter, or phone call.  Let him know how you feel about the “republican” senator from Montana and his plans to destroy Western Montana in favor of the CSKT and whatever campaign contributions he and others will receive for this travesty!

Meet the New Compact: Same as the Old Compact

@2019 Concerned Citizens of Western Montana

The fiction that Senator Daines would like us to believe is that the Senator “solved” the CSKT Compact problem with his erroneously-named “Montana Water Rights Protection Act”.  Quite the contrary, the Senator did not solve the problem. The Senator put forth structurally the same bill that Senator Tester did: he accepted the CSKT Compact in full, “wrapped” it into the “new” Daines Compact, and then added “new” and more “goodies” than even the democrat did!

As with the Tester bill, the intent of the Daines Compact is to have us all now be distracted by the “goodies” and forget about the documented problems with and substance of the provisions of the original CSKT Compact, whose true economic, environmental, and nation-wide legal precedent-setting impacts have never been examined. Witness the cover letter by Interior Secretary’ Bernhardt to the “inquiry” of Senator Daines. The same talking points we have heard for eight years.

Sprinkled into the public relations campaign are the statements that the bill “removes 97% of the off-reservation water rights” but fails to mention that this “97%” only refers to Flathead Lake claim and two associated tributaries.  Thus while the Daines bill only removes 97% of the Flathead Lake claim, the Tribes retain millions of acre feet of off-reservation water from Hungry Horse Reservoir, the Swan, the Kootenai, the Clark Fork, and co-ownership in the Bitterroot River, as instream flow, with mostly time immemorial priority dates; and also retain the 10,000 claims filed by the Tribes/U.S. after the Compact passed. None of the off-reservation claims are federal reserved water rights under the Winters Doctrine. If the Senator was following the Winters Doctrine, he would have removed 100% of the off reservation water claims, and compelled the United States to formally withdraw the 10,000 claims.

We assert that instead of protecting water rights, the Daines Compact fails to protect the water rights of thousands of Montanans both on and off the reservation. For example,  by altering three major Acts of Congress statutorily establishing the land ownership pattern and the Flathead Irrigation and Power Project to serve all residents, the Daines compact adds “the color of law” to the  original CSKT Compact’s taking of more than 500,000 acre feet of water belonging to the private landowners, including tribal members, within the irrigation project and held by the United States for the project users. The Tribes’ management plan—which is to turn the irrigation project into a state-of-the-art fisheries project– usurps the statutory right of the project landowners to operate and manage the project.  The Daines Compact simply rewrites history—supporting a long term Tribal goal, and deliberately chooses “winners and losers”, with the losers being Montana citizens who live on off-reservation private lands within the exterior boundaries of the Flathead Reservation and other off-reservation western Montana lands.

The ‘fatal’ goodies in the Daines bill sacrifice Lake and Sanders County and the National Bison range to politics. The Daines bill enables the Tribe take into trust more than 36,000 of state land within the open Flathead Reservation, devastating the tax base and lessees using those parcels for their adjacent operations.  The CSKT ownership of the National Bison range raises the prospect of repeated mismanagement and or expansion of the buffalo range at private landowner’s expense and without civil recourse. What Tribe will own Yellowstone?  Which one will own Glacier?

The larger impacts of the Daines Compact, if approved, have to do with its long term impacts across Montana and the west, including the off-reservation water rights claims of Tribes in Montana and in other western states; Tribal administration of state-law based water rights; the impacts on land patents and rights of way of expansive definitions of ‘reservations’; and the impacts to local governance of replacing citizen and legislative prerogatives with the objectives of the federal/tribal government. These sweeping moves regarding water, including the unresolved 10,000 claims, are related to and will hasten the American Prairie Reserve and the Bison Preserve planned for eastern Montana.

The Senator has been given the information he needs to really make a great deal for Montana through the multi-year effort of Montana citizens and citizen legislators.  All that’s necessary is a desire to listen to and do the right thing for all Montanans, not just a few, and the courage to make it so.

 

Love Letters to Lawlessness

©2019 Concerned Citizens of Western Montana

In review and summary…

 

The widely reported letter from Secretary Bernhardt to Senator Daines was designed to “breathe new life” into the dead horse known as the CSKT Compact.

The letter contained no new information and doubled down on all the same tired reasoning they have used for years.  All of the assumptions and illegalities of the CSKT Compact have been detailed here on this blog, and for the high level view, in this recently produced video prepared initially for Senator Daines.

DNRC Director John Tubbs, one of the compact’s chief proponents,  thought the Secretary’s letter was “historic”, but to us the “historic” aspect of this is how many years Montana can ignore the law and advance a policy that they know is destructive to Montana.  Sad.

What is not historic, but was a cheap political trick, was to schedule the visit of Attorney General William Barr, and the timing of this letter, to strongly suggest to the public that “the Trump administration supports the CSKT Compact”.  Once again, in scheduling this visit the Senator ignored the pubic and specifically carved out the Tribes with a visit.  Why here, why now?

Of course AG Barr–who has not been presented any other picture than the tribes–is going to say something positive on the issue even though the CSKT Compact was tastelessly raised by the Tribe or Daines at this unrelated meeting.

Interesting, though, that this visit should be hastily arranged just shortly after this article appeared in the Western Ag Reporter, busting the off-reservation water claim hoax.  One can hear the frantic phone calls now— “Quick, hurry do something before everybody finds out!!!”

The background to the recent news coverage is that Senator Daines asked the Secretary of the Interior to review the People’s Compact and accompanying Flathead Water Solutions Handbook for Decision Makers.  The Secretary’s letter showed that he never reviewed the Handbook and the people who wrote his response are the same people who wrote and pushed the Compact while in Montana.  It appeared to be recycled language.

Was the Senator alarmed at the failure  of the Secretary to review the Handbook?  Did he know enough to be alarmed?

All we citizens have asked for is that our elected officials follow the law.  In view of all the issues raised and now known about the CSKT Compact, the Secretary’s letter to Senator Daines is really nothing more than a love letter to the lawlessness and property takings in the CSKT Compact.

Despite the headlines, the CSKT Compact is far from even touching President Trump’s priorities, and in fact undermines them.  The President needs to know what is going on here, and the role that our Congressionals are playing, before he decides to stump for any of them here in Montana.

The CSKT Off-Reservation Water Claims: “If You Like Your Water Right You Can Keep It”

Our thanks to the Western Ag Reporter for publishing this article by Dr. Kate Vandemoer on behalf of the Montana Land and Water Alliance–Concerned Citizens of Western Montana

*****

The CSKT Off-Reservation Water Claims:  “If You Like Your Water Right, You Can Keep It”

Once again, the proponents of  the CSKT Compact are flooding the airwaves, newspapers, and mailboxes with threats of “endless litigation” and “having to hire your own lawyer” if the CSKT Compact is not passed by Congress. They claim that if the CSKT Compact is passed, Montanans will not have to go to court to defend their water rights from the 10,000 off reservation water claims filed by the Tribes and the United States.

This sounds like “if you like your health insurance (water right), you can keep it (won’t have to go to court to defend your water right)”, so just pass the CSKT Compact. But as with Obamacare—which had to pass in order to find out what was in it—this is a failed promise repeated endlessly by compact proponents much to the detriment of informed decision-making in Montana.

Two Sets of Off-Reservation Water Claims

There are two sets of off-reservation claims.  The first set is associated with the CSKT Compact, with some geographically located off the reservation on rivers and streams in western Montana, Flathead Lake, and other claims on private lands within the reservation.

The second set of off-reservation claims were filed by the Tribe after the CSKT Compact was passed by the legislature, known as the “10,000 claims”, which cover additional sites in western Montana and expand to 2/3 of eastern Montana.  The 10,000 claims are not part of the CSKT Compact. A database showing the 10,000 claims can be found at this link:   https://tinyurl.com/10000Claims

So, urging Congress to pass the CSKT Compact will not eliminate the 10,000 claims because these claims are not part of the Compact. They will still have to be separately adjudicated in the Montana Water Court.

Some have said that the Tribes will “give up” these off-reservation claims if Congress passes the Compact.  That’s what they told Montana citizens before the legislature passed the Compact—that if it was passed, they would not file the 10,000 claims. But the Tribes filed those 10,000 claims anyway, and the state of Montana let them, despite “negotiating” the CSKT Compact “for 20 years”.  So, what and who are citizens to believe?   Did they file these claims to hold the state and its citizens hostage?

The Achilles Heel

The weak point of both the compact-related and non-compact 10,000 off-reservation water claims is that these claims are not “federal reserved water rights” associated with the Winter’s Doctrine. The state refers to them as ‘reserved rights’ in their advocacy literature without disclosing they are referring to the compact’s newly-created “tribal reserved aboriginal water right” that is allegedly derived from the Treaty of Hellgate, not the Winters Doctrine. But the only “reserved water right” that is relevant to any tribal compact in Montana and the United States is a “federal reserved water right” derived from the Winters Doctrine.

A federal reserved water right by legal definition exists only within the geographical boundaries of the reservation and is a discrete amount of water necessary to fulfill the purposes of the reservation. By definition  there are no “off reservation federal reserved water rights”.  That the State of Montana keeps representing that the CSKT Compact quantifies “federal reserved water rights—both on and off the reservation” is stunning because it is 100% incorrect. There are no “federal reserved water rights” off the reservation.

What’s Next?  With and Without the CSKT Compact

Under the CSKT Compact, the state is bound to fight its own citizens in defense of the compact-related off reservation water rights through a federal-state-tribal “mutual defense” clause, both in state and federal court. With the Compact, if the state court does not have jurisdiction to address the off-reservation non-federal reserved water rights, then the state is bound by the Compact to fight its citizens in federal court in favor of the Tribes’ off-reservation 10,000 water claims (see page 62, CSKT Compact). Thus, the Compact binds the state to future litigation.  Finally, with the Compact, the 10,000 off-reservation claims remain to be adjudicated in the MT Water Court.

Without the Compact, all water claims go to the Water Court for adjudication with no “compact overlay”. Here, the state is required to defend its citizens against all the off reservation, non-federal reserved water right claims in both state and federal court. The myth that individuals will have to hire their own lawyers belies the fact that it is the responsibility of the state Attorney General’s office to defend the water rights of Montana and its people against encroachment by other states or the United States through the Tribes.

Remember that all the off-reservation claims filed in or outside of the compact are not federal reserved water rights, so it won’t take thousands of attorneys to defeat them.  Just ask the state of Idaho, which recently defeated similar Tribal off-reservation water claims based on history and law.  The Idaho Attorney General’s office was able to defeat hundreds of off-reservation claims on behalf of thousands of Idaho citizens.

Given the reality of the law and issue of the CSKT compact’s 10,000 off-reservation water claims, and the fact that the 10,000 off-reservation claims still exist with or without the Compact, the best environment to examine and validate or reject these claims is the MT General Stream adjudication.

Through the lens and application of federal and state law,  the MT Water Court is fully capable of sorting it out and can then finish up the general stream adjudication.

Unfinished Business and the CSKT Compact

©2019 Concerned Citizens of Western Montana

There is important unfinished business on the ground here on the Presidentially-opened Flathead Indian Reservation that should have been addressed and completed before any compact was, or is now, prematurely put before Congress for a vote.

The unfinished business involves:

  • federal contracts between the United States and the irrigation districts requiring the release of construction liens on private property;
  • the United States’ unmet contract obligations to the landowners within the Flathead Irrigation and Power Project; and
  • the unmet legal responsibilities to turn over the project operation and management to the landowners of the project.

The completion of this unfinished business is already required by law. Because it is at the federal level, our Congressional delegation could be providing assistance to the on-going efforts by the irrigation districts themselves.

These required legal obligations cannot be used as a “bargaining chip” in any compact negotiations

Release of Federal Construction Liens on Landowner Property

Recovery of the construction costs for the Flathead Irrigation and Power Project (FIPP) by the United States was secured through repayment contracts executed between the Department of the Interior and three irrigation districts from 1924-1948. The contracts attached liens to individual property until the total costs of construction were paid off.  By law, including the 1908 Act authorizing the FIPP, once the construction costs were repaid, the liens would be released and  the operation and management of the Project would be turned over to the landowners.

The construction costs for the FIPP were repaid in 2004 but the liens have never been released.  Here is the first paragraph of the Districts’ detailed request to then Secretary Ryan Zinke to release the federal liens, sent on March 19, 2018:

Dear Secretary Zinke:

The Jocko, Mission, and Flathead Irrigation Districts of the Flathead Irrigation Project (FIP)[1] represent over 2,000 irrigators on 115,764 acres of private land served by the FIP.   The FIP was authorized by the Act of May 29, 1908 to serve both Indian and non-Indian lands within the exterior boundaries of the Flathead Indian Reservation.

We write to formally request the Department of the Interior’s release of the liens on property within the Districts of the Flathead Irrigation Project pursuant to our repayment of construction costs in 2004.   This letter transmits the necessary documentation of our contracts with the United States, repayment, and descriptive information of lands to which the construction liens apply.

The response from Secretary Zinke?  Crickets.

The unreleased liens create additional problems for landowners by reducing their flexibility.  The status of unreleased liens has been cited by the state district court as one of the reasons to prevent the reorganization of one of the irrigation districts to more accurately reflect their priorities and circumstances.

This is “simply” a matter of contract law, and could be enforced in a court of law. But it would be even better if the irrigation districts could receive the benefit of Senator Daines’ efforts before any movement goes forward on a “new” CSKT compact.

Audit of the Flathead Irrigation and Power Project: Power Revenues and Project Irrigator Operation and Maintenance Fees

As should be well known, the FIPP is an integrated irrigation and power project and was initially designed that way.  The Newel Tunnel became Kerr Dam.  The water rights of the irrigators were used to generate power, and in return the irrigation project received a low cost block of power–15 MW at the ‘cost of production’– from Kerr Dam.

The 1948 Act, still in effect and not affected by the Compact, and discussed in the attached letter, requires that the excess low cost block of power be sold, and that that net power revenue would be applied to offset the annual irrigation operation and maintenance fees. The annual net power revenue as calculated by the Bureau of Reclamation from 1950-1984 ranged from $226,000 to over $718,000 per year (Flathead Irrigation and Power Project Audit Request page 5).

In 1985 the BIA arbitrarily divided the irrigation and power division, and contracted with the Tribes to manage the power division, which included by law the requirements of the 1948 Act.  The BIA unlawfully contracted the power division with the Tribes under a under a self-determination (638) contract, as a 638 contract allows the government to contract with the Tribes for a government project built for them because of their status as tribes.  The FIP was built on an open reservation for everyone, not just the Tribes.

Since 1985, the net power revenues have not been delivered to the irrigation division or spent on irrigation purposes as required by law. This has resulted in serious maintenance deficits to the irrigation project and a back-breaking escalation of per acre costs to individual irrigators.  But the field evidence reveals miles of canals and structures needing repair.

Where is the money going?  That is the subject of the audit request, attached here.  Take a look and see what has been going on for the last thirty years!

To his credit, Senator Daines has secured an “accelerated” General Accounting Office (GAO) audit to begin in about a year.  However, how can the Congressional delegation in all seriousness plan to submit a the CSKT or modified CSKT Compact before the audit is done? This is the largest irrigation project in Montana and began more than 100 years ago.  The United States invested millions of dollars here on everyone’s behalf.  Will the Congressional delegation walk away from that, and the current waste, fraud, and abuse of federal monies in the FIPP by the BIA?

If the audit can’t be accelerated anymore, why not hold off on introducing any modified CSKT Compact until the audit can be completed?  Work on the liens, or identifying the system discussed next.

Project Turnover

The 1908 Act authorizing the construction of the FIPP also authorized the turnover of project management and operations to the landowners therein after the construction costs were repaid.  The statute authorizes the landowners form a structure that is “suitable to the Secretary of the Interior”.  Notice this statutory provision is not linked at all to water rights of any kind. Note also that the federal government retains the ownership of the infrastructure per the 1908 Act.

Owing to the open reservation status of the Flathead Indian Reservation, 90% of the project lands are owned by non-Indians, while 10% is owned by individual Indians or the CSKT itself.  All pay irrigation operation and maintenance fees. By law, all three have to be represented in the operation and management of the FIPP and maintenance of the current instream flows in the FIP.

Within the last two years, and as part of litigation settlement discussions initiated by the irrigation districts against the BIA regarding project management, a project management plan was developed by the irrigation districts and  submitted to the Department of the Interior for review.  The review was positive and the only task is to ensure that the Board of this management entity fairly reflects the project’s landowners and is capable of managing the irrigation, power, fisheries, and environmental components of the FIP.

Project turnover to the landowners, like the liens, is statutorily required and should be independent of any water rights proceeding.

But note that project turnover to landowners within the context of the CSKT Compact, or the current modifications to it offered by Senator Daines, is not equivalent to and does not meet the statutory standard set out in the 1908 Act.

Neither the Compact nor Tester bill  implement the statutorily-required management and operation of the FIP by landowners. In addition, under the Daines scenario, offering the irrigators “project management” will be meaningless because the Tribes will still own the landowner’s water in and the physical infrastructure of the FIP.  The irrigators would be managing their own demise.

So the wisdom of pushing the CSKT Compact or modification now, including one that appeals to the irrigator’s statutory right to and desire for project management, is premature and questionable given the context of the CSKT Compact, the Tester Bill, and the Daines proposed modifications.

Of course, our answer to this issue is the People’s Compact.

Conclusion

The United States has some ‘splainin to do, and it might be time to get to work and meet its contract obligations to everyone, not just a select few.

  • The liens on individual lands have been on those lands for fifteen (15) years.
  • There is the significant potential that millions of federal dollars have been lost to waste, fraud, and abuse.
  • The irrigation community has developed a plan for operation and management that is representative of everyone in the project and protects fisheries, environment, and power resources.

Will the premature introduction of a  “settlement of water rights” that involves the CSKT Compact, or modifications that incorporate its plans for the FIPP,  cover up and enable federal malfeasance?

Flathead Water Solutions: Prepared for Senator Steve Daines

©2019 Concerned Citizens of Western Montana, Montana Land and Water Alliance

Last year, in August 2018, a team of legislators, citizens from the Montana Land and Water Alliance, the Jocko Irrigation District, and Concerned Citizens of Western Montana met privately with Senator Steve Daines to discuss the People’s Compact with him as a viable solution to, resolve, in his words “the most divisive piece of legislation to ever come out of the State of Montana”.  The Senator gave us “assignments” to complete that would provide him enough information to push back against an unacceptable CSKT Compact.

A little over a year later, in September 2019, we developed that material and requested a meeting with the Senator to present it. But the Senator refused to meet with the People who drafted the People’s Compact and with those who will be most impacted by it, preferring to meet instead with legislators. Constituents apparently don’t get to meet with their Senator.

In a remarkable turn of events after his professed promise to “never submit the CSKT Compact to Congress as long as I am Senator”, the Senator instead announced his intention to submit a “CSKT Compact” to the Senate this year. While no one really knows what is in the new proposed “Daines Compact”, and the people have been given few details, what we do know is that the Tribes have given up nothing:

  • The unlawful Unitary Management Ordinance (UMO) remains a major part of the Daines Compact, which places 30,000 people and state law based water rights under the jurisdiction of the Tribal government.  The UMO means that future economic and water development in the Flathead Basin will be determined by the Tribe;
  • The off-reservation federal, not tribal, “co-ownership” of water in the Bitterroot River remains, as well as the off-reservation water rights–known as the 10,000 claims–across 2/3 of the state of Montana.
  • Flathead Lake, Hungry Horse Reservoir. While we heard that the Tribes had “given up their claims to the North and South Fork of the Flathead River” there are conflicting stories of whether the Tribes also gave up their claims to Flathead Lake and Hungry Horse Reservoir, partially and completely off the reservation respectively.  If the Tribes did not give up Flathead Lake and Hungry Horse Reservoir, then the offer to give up the North and South Fork of the Flathead River is meaningless. As the Flathead Lake analysis shows, the Tribes claimed all 19 million acre feet of Flathead Lake, not just the top ten feet.  Moreover, as long as the Tribes keep the Unitary Management Ordinance, then development decisions for both Flathead Lake and Hungry Horse Reservoir–which affect the economic future of Flathead County–will be controlled by the Tribe.

The Senator and his staff reported to legislators that they “used the People’s Compact” to come up with the “Daines Compact”.  Nothing could be further from the truth—they are using this as a ploy to placate “we the people“.

The Senator has also unfortunately bought into and is promoting the IRRATIONAL claim that if the Tribes go through the Montana stream adjudication, that the water use of 2/3 of the state will be curtailed until their rights are resolved. Think about this. Montana’s General Stream adjudication has been going on since 1979.  Has anyone had to curtail their water use while the adjudication is on-going? Has this ever happened in any other state? The answer is NO.  It is the Tribes who are afraid of the General Stream Adjudication because they know these water rights will be thrown out of court.

The video below, prepared for and shown to Senator Daines at one of the legislators meetings this weekend, clearly demonstrates that the Tribes have no off reservation water rights.  That the Senator is promoting this fear tactic, instead of demanding the Tribes eliminate all their off-reservation claims, is itself irrational.


<p><a href=”https://vimeo.com/360310471″>2019 08 28 Daines Presentation RS Voice</a> from <a href=”https://vimeo.com/user43144669″>Montana Land and Water Alliance</a> on <a href=”https://vimeo.com”>Vimeo</a&gt;.</p>

In addition to the video presentation, citizens prepared a notebook of materials that Senator Daines could use to really find a solution to the CSKT Compact.  Called the “Flathead Water Solutions Decision Makers Handbook”, the handbook was hand-delivered to the Senator and his staff at one of the meetings.  The documented evidence collected over the past eight years demonstrates that the CSKT Compact cannot be “tweaked”.  An excerpt from this handbook is provided in the table below, the Table of Contents is linked hereUpdate: The entire handbook may be found at the People’s Compact blog.

Despite the Senator’s refusal to meet with his constituents, the material in the video and Handbook ensures that the Senator cannot claim he didn’t know about the problems with the CSKT Compact, as he crafts his own “version”, now known forever as the “Daines Compact”.

 

 

 

 

The CSKT Compact in a Nutshell

©2019 Montana Land and Water Alliance

The 1,500 page CSKT Compact was designed to disguise the truly significant issues that were at stake that should have been researched and addressed by the Compact Commission, presented to the legislature, and described to the public.  Instead, the public got the 3-page set of bullet points that focused on minor little details and cute assurances that masked the true extent of the overreach, harm, and precedent-setting nature of the CSKT Compact.

The Federal Review of the CSKT Compact/S.3013

Now that the 2015 CSKT Compact is out of Montana, and added to by Senator Jon Tester as the 2016 S. 3013 at the federal level, according to the 2015  directive from the House Committee on Natural Resources, the Departments of the Interior and Justice and the Office of Management and Budget (OMB) must complete their review of any Indian water settlement, which includes the CSKT Compact/S. 3013, before it can come before committee. While in theory this review would have presumably caught the glaring problems with the CSKT Compact and resolved them, we learned that the Departments were just going to accept the CSKT Compact as is, with no critical review.

The Interior/DOJ review has been underway for a while and we understand was near completion.  Working with our legislative team on the People’s Compact,  which we believe resolves the problems with the CSKT Compact, we were able to secure an opportunity to send our concerns to and have a discussion with the Interior Department’s Secretary’s Indian Water Rights Office about their review. This was to ensure that the United States was aware of the concerns of Montana citizens that were not represented by the State of Montana in the so-called “negotiations”.

The Letter

The letter we sent to the Department of the Interior is our “CSKT Compact in a Nutshell”, and you will see boils down to issues you probably never heard of because the State did not tell you what the CSKT Compact was really about or the actual legal constraints that should have prevented the CSKT Compact from developing in this form.

You will note that this is not a “nutshell”.  But it is as close to succinctly describing the fundamental problems with the CSKT Compact as it can be, and it does not describe it all!  So while it might take you a few days over several glasses of your favorite beverage, we think you will see that the CSKT Compact is even worse than you already know!

Was the state of Montana nuts?

December 17, 2018

                    , Esq.

Director, Secretary’s Indian Water Rights Office

U.S. Department of the Interior

1849 C Street NW

Washington, D.C.  20240

                         VIA ELECTRONIC TRANSMISSION

Dear Director:

We understand that the Department of the Interior,  the Justice Department and Office of Management and Budget are currently undertaking a review of the United States’ liability with respect to the proposed Confederated Salish and Kootenai Tribes (CSKT)-Montana water compact, and Senator Tester’s S. 3013 (2016) which incorporates that compact into a larger bill.  In support of that review, we are writing to provide new information that you may not be aware of to assist the Departments’ analysis and to ensure that all the aspects of the United States’ potential liability are fully addressed.

The context for submitting this additional information arises from the specific historical and legal circumstances of the Flathead Indian Reservation and from the provisions of the CSKT Compact itself. We believe that these circumstances will necessitate the evaluation of the United States’ liability beyond its potential liability to the CSKT and consideration of the impacts of the precedent-setting provisions of the CSKT Compact on Montana and the western states. In the pages that follow, we describe just a few of the key issues in the CSKT Compact and why we believe that the U.S. liability to the non-Indian settlers and off-reservation residents could be even greater than the $2.3 billion dollar price tag associated with Senator Tester’s S. 3013.

Liability to Non-Indian Project Water Users in the Flathead Irrigation Project

Pursuant to Article VI of the Treaty of Hellgate, the Flathead Indian Reservation was opened for settlement in 1909.  In anticipation of settlement, in 1908 the United States constructed an irrigation and power project that is statutorily obligated to serve all residents of the reservation.[1]  To meet this objective, the United States reserved or appropriated under state law 2.6 million acre feet of water to serve the integrated water and power project.  The United States holds the project water right by contract with the irrigators in the project who own 90% of the lands now served by the project.  Further, the 1908 Act created a statutory obligation to turn the management and operation of the project over to the landowners served by the project upon the completion of repayment of the construction costs to the United States (35 Stat. at 450).  The costs were completely repaid in 2004.

Under the terms of the CSKT Compact, the contract between the United States and irrigators is nullified because the bare legal title to 100% of the water is turned over to the Tribes[2], 90% of which is intended to be changed from irrigation use to instream flow. Under the terms of the CSKT Compact, it is estimated that historic irrigation water deliveries could be reduced by 40%-70%.[3] Moreover, federal management of the federal irrigation project is turned over to a committee consisting of the state and Tribes with minimal representation of the United States or the irrigators who paid for the project.[4]  Under Senator Tester’s bill, the federal infrastructure of the Flathead Irrigation and Power Project (FIPP) is also given to the CSKT[5].  We believe this constitutes a Fifth Amendment taking without compensation, for which the United States would be liable.

The Winters Doctrine, the McCarran Amendment, and Off-Reservation Water Rights

We assert that the provisions in and water claims of the CSKT Compact are outside the legally permitted scope of the Winters Doctrine and the McCarran Amendment and therefore the CSKT Compact is not a federal reserved water rights settlement[6]. As a threshold issue, the State of Montana failed to quantify the federal reserved water rights of the tribes and instead allowed virtually unlimited claims to be filed for all surface water on the reservation[7] as well as significant claims for state-owned water resources outside the geographical boundaries of the opened Flathead Indian Reservation.

The responsibility for the adjudication of water rights within a state belongs to each state.  In order to provide for a comprehensive adjudication of all water rights within a state that also had federal reservations of land, the 1952 McCarran Amendment (43 U.S.C. 666) waived the sovereign immunity of the United States for the purpose of adjudicating federal water rights, which include the water rights of Indian Tribes.  The only federal water rights that are found within the states are those water rights associated with the federal reservation of land. The CSKT Compact was negotiated pursuant to procedures established by the Montana legislature under the auspices of the Montana General Stream Adjudication which is a McCarran Amendment proceeding.

In sharp contrast to the principles of the Winters Doctrine and federal reserved water rights, the 2015 CSKT Compact and Senator Tester’s S. 3013 begin with a tribal, not federal reservation of land:

WHEREAS, pursuant to the Hellgate Treaty of 1855 12 Stat. 975, the Confederated Salish and Kootenai Tribes reserved the Flathead Indian Reservation

Bluntly, if the CSKT reserved the reservation themselves[8], are there any federal reserved water rights? Indeed, the CSKT assert that their Tribal reservation of land gives rise to aboriginal water rights and [tribal] reserved water rights to fulfill the purposes of the Treaty:

WHEREAS, the Confederated Salish and Kootenai Tribes claim aboriginal water rights and, pursuant to said Treaty, reserved water rights to fulfill the purposes of the Treaty and the Reservation

Thus, the CSKT Compact does not meet the definition of a federal reserved water right proceeding based on the Winters Doctrine.

The Montana General Stream Adjudication is governed by the McCarran Amendment with respect to the adjudication of federal water rights, which arise only from a federal reservation of land.  Except for this CSKT Compact, every Indian and non-Indian compact negotiated in the State of Montana acknowledges the federal reservation of land.  In short, there are no “aboriginal tribal reserved water rights” recognized in or allowed by either the Winters Doctrine or the McCarran Amendment in a state’s general stream adjudication.

Notwithstanding the prescriptions of the Winters Doctrine and requirements of the McCarran Amendment, the 2015 CSKT Compact and Senator Tester’s S. 3013 used the erroneous tribal reservation of land to create and claim new ‘tribal reserved water rights’ geographically outside the Flathead Indian Reservation, extending their claims throughout western Montana[9].  This is in stark contrast not only to existing law, but also violates an Indian Claims Commission stipulation agreement signed by the CSKT in 1966 that forever barred the CSKT from seeking any further off-reservation claims that it could have filed against the United States in any forum.[10]

While we recognize it has been a long-term policy goal of the Tribes to assert the Tribal reservation of land instead of the federal reservation of land as a basis for a Tribal reserved water right[11],  such a mechanism is not afforded to the Tribes because the Winters Doctrine and McCarran Amendment recognize only those federal  water rights that arise from a federal reservation of land[12].

The potential liability to the United States of the asserted non-federal reserved water rights claims in the CSKT Compact appear to be two-fold. First, the United States could face the loss of most if not all these water claims for failure to adhere to and comply with the Winters Doctrine and McCarran Amendment thus wasting time and resources in the effort.  Secondly, it appears that if the United States somehow prevailed in these claims, it would be in direct violation of a stipulation agreement signed between it and the CSKT in 1966. We also believe this will result in a Fifth Amendment taking without compensation of the water rights of hundreds of thousands of Montanans both on and off the reservation.

A Closer Look at Article 3 of the Treaty of Hellgate and Off-Reservation Water Rights

The CSKT Compact asserts that Article 3 of the Treaty of Hellgate, a “Stevens Treaty”, reserved a water right off the Flathead Reservation to fulfill the purposes of the Treaty.  For the CSKT Compact purposes, the relevant language of Article 3 is:

…the exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land[13]

Commonly seen as a right of access to usual and accustomed places, the geographic scope of the Stevens Treaty access right extends only to the lands ceded by a Tribe to the United States or to reservations within the ceded areas created by the United States when the treaties were ratified (United States v. Winans, 198 U.S. 371 (1905)).[14] The Winans case was not a water rights case but was about a servitude in the land and had nothing to do with reserved water rights.

The CSKT Compact, however, combines the Winters and Winans cases together so that the Article 3 Treaty-imposed servitude generates a reserved water right for instream flow.  The Compact extends this Article 3 reserved water right claim outside the CSKT aboriginal lands ceded to the United States, and then further, extends the reserved water right east of the continental divide to include reserved water rights in the CSKT claimed “subsistence range”, which covers roughly half the state of Montana.[15]

While we recognize the complexity of the issues and policy questions presented by the interpretation of the “in common” phrase of the Stevens Treaties containing similar Article 3 language[16], we believe that the off-reservation claims presented in the CSKT Compact should not be resolved within a federal reserved water rights settlement that is a McCarran Amendment proceeding.

Article 3 in our view does not generate federal reserved water rights, or any other water right. However, in the People’s Compact we attempted to address the 270,600 acre feet of water awarded to the CSKT out of the irrigation project in 1985 for fisheries purposes as part of the on-reservation federal reserved water right. We are unsure if this is the proper way to address this as bifurcating the Article 3 into on-reservation or off-reservation access rights, with on-reservation access generating a federal reserved water right doesn’t fit the legal intent of Article 3’s access provisions, or the “in common” language’s addition of a harvestable quantity of fish. It makes more sense to attribute the 270,600 acre feet awarded to the Tribes for fisheries in 1985 as the agricultural reserved water right that was changed to instream flow. This highlights the importance of accurately describing Article 3 and appropriately attributing federal reserved water rights to the purpose they are generated from. [Note: our further research resolved this problem by noting that Article 3 is not a purpose of the reservation but instead conveyed usufructory rights to use the reservation for fisheries within the irrigation project.  See the People’s Compact Framework Paper for how this resolution affected the People’s Compact here.]

 Water Administration, Due Process, and Civil Rights

We assert that the water administration mechanism proposed by the CSKT Compact violates the due process rights of Montana citizens and is a violation of the civil rights of citizens guaranteed by the U.S. Constitution.

A central feature of the CSKT Compact involves the replacement of the Montana Water Use Act[17] with a new compact-created administration system that permits a political entity to have jurisdiction over the water rights of Montana citizens whether based in federal, state, or tribal law.  Known as the Unitary Management Ordinance or Law of Administration, it vests the power to manage the state law-based water rights and uses of  Montana citizens in a politically-appointed and unaccountable board dominated by the CSKT.

Resolution of disputes among water users within the Law of Administration, whether tribal or non-tribal, is up to a “court of competent jurisdiction”, which under the CSKT Compact the litigating parties must agree upon.  Since it is likely the Tribes will never accept state court jurisdiction, a federal court will be the only resort of Montana citizens, and that federal court may not have jurisdiction over the issue.

Thus, Montana citizens are deprived of the customary District and State Supreme Court mechanism employed to resolve disputes among citizens and are deprived of the constitutional protections of the Montana and U.S. Constitutions[18].  The liability to the United States and state of Montana for these violations is incalculable[19].

Summary

In summary, the evaluation of the United States liability regarding the proposed CSKT Compact necessarily will involve expanding the scope of the analysis to include the impacts to the thousands of non-Indian citizens within the Flathead Irrigation Project, residing on the reservation, and potentially to the hundreds of thousands of citizens across Montana whose water rights will be impacted by the extensive claims of the CSKT.

The damage done to the Winters Doctrine, the McCarran Amendment, Acts of Congress, Congressional intent, and the civil and due process rights of Montanans, while evident in the terms of the CSKT Compact, are almost incalculable.  For these reasons, we believe that the CSKT Compact is not in any way, shape, or form a settlement of the federal reserved water rights of the CSKT.

 A Proposed Solution

The complexities and impacts of the CSKT Compact, and the potential liability both to the United States and State of Montana generated by it inspired us to develop an alternative solution to present to Congress for consideration.[20]

This effort began with a sincere desire to resolve the federal reserved water rights of the CSKT within the framework of existing federal reserved water rights law and the McCarran Amendment; to respect the Congressional intent in the development of the water resources of the Flathead Reservation;  and to resolve any outstanding water claims of the Tribes.  Because the CSKT Compact itself generated considerable divisiveness, our intent was to also mend fences within our community and across the state of Montana.

Called “The People’s Compact” or “Mending Fences Act”, this alternative solution quantifies the federal reserved water rights of the CSKT,[21] resolves an outstanding 1951 CSKT Claim related to the use of water in the Flathead Irrigation Project, provides for the development of the Tribes’ federal reserved water rights including the rehabilitation of the Flathead Irrigation Project to benefit both fisheries and irrigation, and retains the dual administration system for state law-based and tribal law-based water rights characteristic of every other Compact in Montana.

Under the People’s Compact-Mending Fences Act, there are no off-reservation water claims.  The estimated costs for this settlement, including the resolution of the outstanding water claim of the CSKT, are between $600 and $775 million dollars, less than one-third of the costs in Senator Tester’s S. 3013.

We have attached to this letter a background paper describing the Legislative Framework for the People’s Compact, which provides new information the Department may not be aware of and describes the current issues that must be addressed in moving forward with the resolution of the CSKT federal reserved water rights.  The paper provides a pathway forward in rectifying the deficiencies of the CSKT Compact/S. 3013, limiting the United States’ liability, and providing a viable and vibrant self-determined future for the full use and development of the CSKT federal reserved rights.

For your information, we have also attached additional information including a legal review of the CSKT Compact and charts comparing Indian water rights settlements in Montana and across the United States with the proposed CSKT Compact.  We hope you find these useful to the Department’s evaluation of the CSKT Compact.

We look forward to our discussion with you and the Secretary’s Indian Water Rights Office.

Sincerely,

/s/ Al Olszewski

Dr. Al Olszewski, State Senator

Co-signators: Boone Cole, Chairman Jocko Irrigation District; Catherine Vandemoer, Ph.D. Chair, Montana Land and Water Alliance;Terry Backs, Concerned Citizens of Western Montana

Attachments

Cc:  Office of Senator Steve Daines, Congressman Greg Gianforte

FOOTNOTES

[1] 35 Stat. 444, 448-50. See also Letter to James Steele, Jr., Chairman, CSKT from Edith Blackwell, Deputy Associate Solicitor, Division of Indian Affairs, U.S. Department of the Interior,  December 21, 2007.

[2] In 1982, the Bureau of Indian Affairs (BIA) timely filed water claims on behalf of project water users in the Flathead Irrigation Project.  In 2015 the BIA filed competing claims on the same water but on behalf of the CSKT.

[3] Richard A. Simms, “Letter to Montana Legislators Regarding the Lack of Quantification in the Proposed CSKT Compact”, January 11, 2015, in Montana Land and Water Alliance, 2015,  Legal Analysis of the CSKT Compact

[4] The Compact Implementation Technical Team (CITT), already implementing the compact inside the federal irrigation project, replaces the BIA. Irrigators, who own 90% of the project lands, are allowed one representative.

[5]The 1908 Act maintains federal ownership of the federal infrastructure although management and operations would be turned over to the landowners served by the project

[6] The Winters Doctrine specifies that the federal reserved water right is the amount of water necessary to fulfill the purposes of the reservation and is a discrete amount of water limited to the reservation land.

[7] The additional CSKT claims filed after the Compact was passed by the Montana legislature included claims for 35 million acre feet of ground water beneath the reservation.  The United States did not include these ground water claims as part of their filing of the post-passage 10,000 claims.

[8] The concept that Indian Tribes reserved their own reservation is defeated by history and case law.  See, Simms, Richard A., January 8, 2015, Memorandum to Senate President Debby Barrett and Speaker of the House Austin Knudsen; and Simms, March 18, 2015 “Threat of 10,000 Off-Reservation Instream Flow Claims” in Legal Analysis of the CSKT Compact, MLWA, April 2015.

[9] The United States and CSKT claim that Article 3 of the Treaty of Hellgate conveys a tribal reserved water right to meet the Treaty right to access aboriginal lands to fish. The extent and scope of the Article 3 access right is a hotly debated and litigated issue outside of McCarran Amendment proceedings.

[10] 17 Ind. Cl. Comm. 297. Stipulation agreement found at p. 309 and reads “The judgment shall finally dispose of all claims or demands which petitioner has asserted or could have asserted in this case against defendant, and petitioner shall be barred from asserting all such claims or demands in any future action.”

[11] American Indian Policy Review Commission Final Report Submitted to Congress May 17, 1977

[12] Any additional claims for off-reservation water rights in western and eastern Montana would have to be resolved through a separate court action outside of the McCarran Amendment proceeding’s Montana General Stream Adjudication.

[13] Treaty with the Flatheads etc., July 16, 1855 12 Stats. 975, Ratified March 8, 1859, in Indian Affairs Laws and Treaties Vol. II (Treaties), Compiled by Charles J. Kappler, Washington, Government Printing Office, 1904.

[14] See also Antione et ux. V. Washington, 420 U.S. 194, 205 (1975).

[15] Simms, Richard A., 2015. “Threat of 10,000 Off-Reservation Instream Flow Claims”, in Montana Land and Water Alliance Legal Analysis of the CSKT Compact, March 18, 2015.

[16] For example, see United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975), otherwise known as the Boldt Decision, that expanded the “in common” language to include a right to 50% of the harvestable fish. The decision did not amend the nature of Article 3 to include a water right.

[17] Montana Code Annotated Title 85

[18] Simms, Richard A., 2015, “Constitutional Violations of the CSKT Compact”, in Montana Land and Water Alliance, 2015, Legal Analysis of the CSKT Compact.

[19] Title 42 Sec. 1985

[20] With the completion of the negotiations on the CSKT Compact and its passage by the Montana legislature, Montana’s Compacting process through the Montana Reserved Water Rights Compact Commission has been completed. Pursuant to that process the CSKT and United States water claims on behalf of the CSKT were filed with the Montana Department of Natural Resources and the Montana Water Court in July 2015.

[21] The quantification numbers are taken from the 2015 United States water claims filings that were developed to fulfill the agricultural, on-reservation fisheries, and industrial purposes of the reservation as articulated in Articles 3, 5, and 6 of the Treaty of Hellgate. [Note, Article 3 is not a purpose of the Flathead Reservation.  See here.]

Time and the CSKT Compact

©2019 DrKate

Time has not been kind to the CSKT Compact.  As we knew all along, as soon as Montanans clearly understood the overreach and lawlessness of the CSKT Compact, they would abandon it in droves, and wonder why their state officials pillaged the water resources and Constitutional protections of its citizens in favor of the CSKT.

That is the state of the CSKT Compact today, only supported by a few of the “usual suspects” who were likely “paid” handsomely to go along with the plan, or were too uninformed to know what they were doing, or were just simply lazy and didn’t do their homework.  After all, the state, CSKT, and the Bureau of Indian Affairs screamed at the top of their lungs that the CSKT Compact was the ONLY solution. But now we know that is untrue.  The People’s Compact/Mending Fences Act is such a solution and ultimately represents what the state should have produced for its citizens.

Let’s review the basic tenets of the CSKT Compact and assumptions underlying the state and CSKT public relations program which were aimed at an unsuspecting public.  Montana citizens hired a group of attorneys who specialized in, and had won significant Supreme Court cases on federal reserved water rights.  The questions we asked our attorneys reflect the basic ‘tenets’ of the CSKT Compact that were used to justify its unjustifiable excess.  Here are the questions, and in short form, the attorneys’ analysis

  1. Who reserved the Flathead Indian Reservation, the United States or the Tribes? The United States
  2. Whether Article 3 of the Treaty of Hellgate grants a water right to the CSKT off-reservation on aboriginal lands? No, Article 3 is an access right, and no court decision has changed the nature of the Article 3 access right.
  3. The impact of the compact on the agricultural water resources, rights, and irrigators of the Flathead Irrigation Project?  The taking of water from the irrigators is a Fifth Amendment taking without compensation
  4. The legal validity of the “10,000 claims” filed by the Tribes and the United States in eastern Montana. The claims have no basis in the law or Treaty of Hellgate.  The state of Montana should not have allowed the Tribes to file these additional claims which are currently being used to threaten Montanans and the Water Court.
  5. Whether the state of Montana can delegate its constitutional responsibilities for administering water resources, and the provisions of the Montana Water Use Act, to a politically appointed board dominated by the federal government and Tribes acting under a new law created by the compact? The state cannot delegate its constitutional responsibilities; the Tribes have no jurisdiction over non-Indians or state law-based water rights; and the tribes are an adversarial party that cannot manage the water rights of others
  6. Montana and U.S. Constitutional violations of the CSKT Compact? Compact and legislature violated Articles I, II, III, and IX of the Montana Constitution, and Articles 4, 5, and the Fourteenth Amendment to the U.S. Constitution
  7. Whether the state negotiation process permits it to work outside the legally-established parameters of the Winters Doctrine and state law?  A compact is a creature of federal and state law, and therefore, must be negotiated within that framework.  In other words, the state and tribes cannot “do anything they want in a negotiation”.

Note that the questions above illustrate the precedent-setting framework though which the state negotiated this compact.  These were the assumptions the state, tribes and BIA used to tell a tall tale. Please review the synopsis of the legal analysis for more information on the conclusions of the MLWA attorneys in analyzing the legality of the CSKT Compact.

For example, we were told, as if it were settled law,  that the Treaty of Hellgate-Stevens Treaty- Article 3 provided the CSKT “vast off-reservation water rights in all the lands they subsisted in”.  That is legally, historically, and factually incorrect.  But is was presented as ‘truth’.  It is still repeated today by compact proponents, the state of Montana, and some legislators who voted to approve the thing in 2015.  Instead of owning up to the unlawfulness of off-reservation water rights in a federal reserved rights settlement, the Tribes, state, and compact proponents called the citizens of Montana “racists”.

These same off-reservation water rights have now compromised the property values of hundreds of thousands of citizens over 2/3 of the state, where land that was sold as irrigated land now sells as dry land because of the uncertainty of the Tribes’ time immemorial claims for water.

Contrary to the claims of the Farm Bureau, Montana Stockgrowers Association, and FARM, there is no certainty in the CSKT Compact.  This is another false siren song.

The excesses of the CSKT Compact reflect to a “T” the excesses and overreach of every facet of the Obama Administration.  And having reviewed the CSKT Compact extensively, we the people find nothing redeemable about it.  The only correct starting point to solve the federal reserved water rights of the CSKT is the People’s Compact/Mending Fences Act.

The end of the CSKT Compact will mark the end of an error.

CSKT Compact Proponents and the Fool’s Errand

@2018 Montana Land and Water Alliance

A fool’s errand is described as a “task or activity that has no hope of success”.

The 1908 Amendment to the Flathead Allotment Act authorized the construction of the Flathead Irrigation and Power project to serve all lands within the reservation, including Indian allotted lands and unallotted lands settled by non-Indians under the various Congressional homestead and reclamation laws.  The 1908 Act contained a provision that once the project construction costs were repaid by landowners, the project management and operations would be turned over to the landowners therein.  These costs were repaid by landowners in 2004.

Then the CSKT Compact happened, and now Compact proponents are claiming that they can secure project turnover just like the 1908 Act said.

However, in the context of the CSKT Compact,and within Jon Tester’s senate bill, irrigation project compact proponents and landowners who think they can secure project management are wasting their time. Their task has no hope of success.

Why? The reason is that the details of the CSKT Compact itself forever prevent the landowners in the project, who paid for the FIPP, to manage anything other than their own demise.  To wit:

  • The CSKT Compact transfers the bare legal title to 100% of the project water to the CSKT.
  • The CSKT Compact replaces federal “project management” with management by the Compact Implementation Technical Team (CITT).  The BIA has an ‘advisory role’ on the CITT; project irrigators have one (1) representative; and the CSKT Compact’s project management goals are to transfer irrigation water uses to instream flow.
  • Resolution of disputes and water rights issues within the FIPP are delegated to the Tribes’ Unitary Management Board (UMB)
  • Jon Tester’s S. 3013 transfers the infrastructure (canals, laterals, storage facilities, pumps) of the entire FIPP to the CSKT
  • Jon Tester’s S. 3013 amends the 1908 Act to reject the provision that allows the turnover of  project’s management and operation to landowners within the FIPP (90% non-Indian).

Irrigators/landowners over generations who repaid the United States for the construction of the FIPP now have no avenue to secure project management and operations guaranteed by the 1908 Act because of the provisions of the CSKT Compact itself.

Irrigator project management of the FIPP under the CSKT Compact is a myth–it will never happen. A fool’s errand!

Don’t be fooled!