A $2.4 Billion Dollar Distraction?

© 2018 Concerned Citizens of Western Montana

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Advertisements

What Goes Around……

© 2018 Concerned Citizens of Western Montana

……. might just be starting to come around.

Just this week the Montana Department of Revenue sent the Confederated Salish and Kootenai Tribes a $172,000 tax bill for 10 years of back taxes owed on the S&K Technology property located on Highway 93 in St. Ignatius, Montana.  The tribe now has 30 days to pay their bill.

This action is the result of many months of research and effort by Lake County to review property holdings of the CSKT that are exempt from the property tax rolls.

While Montana Statutes  (15-6-201) provide for property tax exemptions related to some tribal properties, this one should never have been classified as exempt by the Montana Department of Revenue:

Governmental, Charitable, And Educational Categories — Exempt Property

“…..federally recognized Indian tribes in the state if the property is located entirely within the exterior boundaries of the reservation of the tribe that owns the property and the property is used exclusively by the tribe for essential government services. Essential government services are tribal government administration, fire, police, public health, education, recreation, sewer, water, pollution control, public transit, and public parks and recreational facilities……”

The statute related to Tribal Property tax exemptions go on to say:

“the property subject to exemption may not be:

…..operated for gain or profit; held under contract to operate, lease, or sell by a taxable individual;  used or possessed exclusively by a taxable individual or entity; or held by a tribal corporation except for educational purposes…..”

It seems that Montana statutes DO NOT provide for a property tax exemption of the S & K Technology property, and hence the action of mailing a tax bill to the tribes.

In 2003 the CSKT purchased this property and it was placed in exempt status by the Montana Department of Revenue at the time.

So with this recent turn of events, a reasonable person might want to ask a few questions:

  • This property was in exempt status for 15 years.  Why did the Montana Department of Revenue only bill them for 10 years of back taxes and not 15?
  • How many other similar CSKT owned properties in Lake County have been “exempted” from tax and how much is owed on them?
  • In 1984 the CSKT promised by tribal resolution to pay the taxes on Kerr Dam, however reneged on that promise AFTER their acquisition of the dam in 2015. Will Lake County be able to recover back taxes on Kerr Dam too?
  • How did these properties receive an exemption in the first place? Is there a flaw in the Montana Department of Revenue procedures that allowed this to happen?
  • Are there similar issues related to CSKT owned properties in Sanders, Flathead and Missoula counties?
  • Will all of these counties take the steps necessary for reimbursement of any back taxes and to ensure this problem cannot rear its ugly head on these properties and / or others in the future?
  • Could this be the tip of a big fat property tax iceberg?

This is very good news for the people living in Lake County who are aware of the never ending stream of tribal property acquisitions and wondering about its implications to our own property taxes and negative consequences to local county governance.

We certainly hope that this shines a massive amount of sunshine on the impact of these land acquisitions and the way at least some of them have been treated by the state causing financial harm to local governance and the taxpayers footing the bills.

The property tax implications of this one issue alone could be astounding.

The greatest of thanks to our Lake County Commissioners and their staff who  successfully pushed this issue toward the issuance of a long overdue tax bill.

The ball is now in the tribe’s  court.

Will they choose to do the right thing and pay the bill?

We’ll be sure to let you know.

The Epitome of Disrespect

© 2018 Concerned Citizens of Western Montana

It’s hard to believe it has been nearly four years since we said goodbye to our dear friend and fellow water warrior Lloyd Ingraham.  There is no doubt by those of us who knew him, that his legacy will be his efforts to increase awareness of the aggressive agenda of tribal corporations, and to thwart and rectify the impacts of a failed federal Indian policy on the people of western Montana.

A wonderful blustery old attorney with a twinkle in his eye, Lloyd was not one for political correctness.  He said exactly what he thought, including telling then candidate for Lake County Sheriff Don Bell in very colorful language, why he could not vote for anyone who held dear to the vestiges of membership in a tribal corporation.

Lloyd knew that if he were to be elected, Mr. Bell would be responsible to uphold laws that as a tribal member he is not held accountable to.  How can someone who chooses by their blood quantum to belong to an entity that constantly strives to be exempt from the laws and constitution of the state of Montana, swear an oath to uphold and protect them?

Lloyd also was involved in several actions to defeat the CSKT water compact, a so-called “settlement” that he knew would bring uncertainty, division and further erode local governance and the rule of law in our community.

His memorial service was a great tribute to a man of courage and honor.  He will always stand tall to those of us who worked with him and loved him because of his character and selfless desire to solve the cancerous problems that both Montana and the federal government have allowed to fester for more than 100 years.

Sadly this is where it seems to end, at least for those who approved allowing the campaign signs of these two particular individuals (Russ Fagg and Don Bell) to be displayed in front of Lloyd’s old law office in Ronan.

Shame on them.  It this isn’t the epitome of disrespect to a great man,  we’re not sure what is.

Try as they might, they will never be able to rewrite history, nor will they erase the legacy of a great and selfless man.

Rest in peace dear Lloyd with the knowledge that the battle you fought is still being waged, and each day more and more people are awakened to the knowledge that something is horribly wrong in our country, our state, and in our community.

Is it something in the water?

 

 

 

The Art of the Scam

© 2018 Concerned Citizens of Western Montana

You’ve heard about Donald Trump’s Art of the Deal, and that strategy is turning out to be good news because it is helping to eliminate lopsided federal trade deals and other international agreements that have gutted manufacturing industries and sent our jobs to other countries while hanging average citizens out to dry.

But here in the Montana swamp it’s business as usual.  Western Montana is instead on the losing end of something we call  the Art of the (Environmental Mitigation) Scam.

In February our Lake County Commissioners met with the CSKT Tribal Council in Pablo, Montana (another story for another day).  Prior to the “commissioner grilling” that took place at that meeting, there was an agenda item related to the possibility that fish populations may have been negatively impacted by the Smurfit Stone superfund site in Frenchtown.  Two CSKT attorneys gave a presentation to the council concerning their efforts thus far to lay the foundation for what could very well be the tribe’s next mitigation extortion scam.

Over the years the CSKT have fine tuned their ability to bilk whatever financial benefit they can through mitigation “settlements” with ARCO, Bonneville Power and others. A few examples:

In 1991, the Fisheries Mitigation Plan for Losses Attributable to the Construction and Operation of Hungry Horse Dam (Mitigation Plan) was prepared by MT FWP and CSKT.

In 1998 Atlantic Richfield (ARCO) agreed to pay CSKT $18.3 M to restore, replace, or acquire equivalent of Tribal treaty- protected resources injured by release of hazardous substances in Clark Fork River by mining in Butte, Anaconda. CSKT agreed to spend $6.4 M in wetlands restoration, and $1.5 M to restore bull trout populations and habitat. Balance compensation for damage from mining.

In 2005, the Bonneville Power Administration and the Confederated Salish-Kootenai Tribes reached an agreement that provides the tribes with $3.49 million for conservation land purchases to mitigate for damages caused by construction of Hungry Horse Dam.  Visit this link to see the Bonneville Power Administration (BPA) announcements for CSKT and other tribal “land acquisitions” as part of this program.

So it would seem that after litigation (wink wink), these organizations ultimately end up “settling” the case by agreeing to use their deep pockets to purchase lands along “waterways” throughout western Montana for the ownership and management of the CSKT corporation.  Note, that these payments do not benefit individual tribal members, but result instead in the enrichment, empowerment and further aggressive overreach of the CSKT Incorporated against their own members and others.

These land acquisitions serve to diminish the local property tax base causing further erosion of local government services to the community.

Adding insult to injury CSKT corporation attorneys have become quite adept at never letting any good opportunity go to waste.  They are constantly on the look out for ways to increase tribal jurisdiction over non-Indian lands both on and off the reservation through litigation, or advancing bad legislation to uninformed legislators.  And they have been quite successful.

And now it appears the tribe’s “environmental legacy” will be continued with yet one more shakedown to acquire whatever lands or monies they will be able to squeeze out of the Smurfit issue.

Ownership of the lands along waterways is only part of the picture

Unfortunately for Montana securing lands along the waterways throughout western Montana is not the endgame, it is simply just the beginning.  Tribal “ownership” of all of this land courtesy of the federal government is also used to leverage additional funds to “manage” the lands and waterways they “control or govern”.

The CSKT tribal council minutes demonstrate that they have figured out how to use their environmental “stewardship” of these lands to garner an even larger opportunity to squeeze unknown amounts of money out of the federal government to manage the lands they received free of charge courtesy of these mitigation scams and ultimately the federal taxpayer.  Here is just one example from 2010:

Germaine White and Tom McDonald, Natural Resources Department, presented for approval a resolution strongly urging the American Clean Energy and Security Act (ACESA) to provide funding to American Indian tribes based on the land and water resources that tribes manage. Germaine and Whisper Camel will attend a Tribal fly-in March 22-23 in Washington, DC. It is hosted by the National Wildlife Federation. This is an opportunity to increase awareness among Senators about the inequitable funding for fish and wildlife management for Tribes and consider improvements in legislation. The proposed action is part of the annual departmental work plan and goals and would not require a modification to the plan. James Steele, Jr. is attending by the request of the National Wildlife Federation, who is paying his expenses.

MOTION by Reuben Mathias to approve the resolution strongly urging the American Clean Energy and Security Act (ACESA) to provide funding to American Indian tribes based on the land and water resources that tribes manage. Seconded by Terry Pitts. Carried, 8 for; 0 opposed; 0 not voting.

March 18, 2010 RESOLUTION 10-145

BE IT RESOLVED BY THE TRIBAL COUNCIL OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES THAT:

WHEREAS, both the Flathead Indian Reservation and surrounding aboriginal territories are important parts of the homelands of the Confederated Salish and Kootenai tribes, and contain many traditional hunting and fishing, camping, and plant resources of great natural and cultural meaning to the tribes; and

WHEREAS, the protection of these important wildlife, fish, and native plants that exist here is essential to the protection and well-being of Salish, Pend d’Oreille, and Kootenai nations as a whole; and

WHEREAS, for thousands of years, the Salish, Pend d’Oreille and Kootenai people respected and cared for the fish and wildlife of the Flathead Indian Reservation and aboriginal territories, living in ways that helped ensure the health, purity, and vitality of these places; and

WHEREAS, parts of those aboriginal territories, including the area now encompassed by the Flathead Indian Reservation, were designated in the Treaty of Hellgate of 1855 as a reservation to be set aside for the exclusive use and benefit of the Salish, Pend d’ Oreille, and Kootenai nations; and

WHEREAS, in the Hellgate Treaty the Tribes also showed their high valuation of the resources of their territories by reserving the right to continue hunting, fishing, gathering plants, and grazing on open and unclaimed parts of their ceded territories; and

WHEREAS, the Flathead Indian Reservation encompasses over 1.2 million acres of some of the best bird and fish habitat in the nation, including over four hundred miles of fishing streams, seventy thousand acres of lakes, over a quarter million acres of uplands and wetlands, ninety-two thousand acres of tribal wilderness, and over thirty thousand acres of tribal, federal and state wildlife preserves; and

WHEREAS, members of the Confederated Salish and Kootenai Tribes have a long well-documented record of providing recreational opportunities for tribal members and non-tribal members alike through proactive fish, wildlife and other resource management, including the establishment of the Mission Mountains Tribal Wilderness, the first tribal wilderness in the United States; and

WHEREAS, the Confederated Salish and Kootenai Tribes also have a long record of working in good faith with federal, state, and local agencies to develop professional working relationships, register concerns and recommendations on a broad range of issues, and ensure protection of natural resources guaranteed to the Tribes in the Hellgate Treaty; and

WHEREAS, tribal lands and waters as well as tribal license holders contribute through the US Fish and Wildlife Service’s formula for allocating to the states and territories Pittman-Robertson and/or Dingell-Johnson monies, amounting to hundreds of millions of dollars annually (over $740 million in 2009 alone, and $18 million to the state of Montana in 2008-2009); and

WHEREAS, under current Fish and Wildlife Service practice, American Indian tribes do not qualify for either Federal Aid funding (Pittman-Robertson or Dingell-Johnson monies) or Land And Water Conservation Funds; and

WHEREAS, Tribes do not receive any funding through Section 6 of the Endangered Species Act (some $67 million in 2009 to states and U.S. territories), the Multi-State Conservation Grant program ($6 million in 2009), or State Wildlife Grant Programs ($9 million in 2009); and

WHEREAS, Tribes also do not receive any funding through the Clean Vessel Act ($14.6 million in 2009) or Boating Infrastructure Grants ($2.5 million in 2009), although the Confederated Salish and Kootenai Tribes put considerable resources into the management of waterways and boating activities;

NOW, THEREFORE, BE IT RESOLVED that the Tribal Council of the Confederated Salish and Kootenai Tribes strongly urges the American Clean Energy and Security Act (ACESA) to provide funding to American Indian tribes based on the land and water resources that tribes manage. We further urge that funding be provided in a permanent, non-competitive annual base funding source to develop and maintain natural resource management programs or departments; and

BE IT FURTHER RESOLVED that the Tribal Council of the Confederated Salish and Kootenai Tribes strongly urges an audit by the U. S. Government Accountability Office to examine the longstanding environmental injustice of the omission of tribes in the distribution of federal funding for fish and wildlife management.

Be watchful of anything related to the CSKT and Smurfit, as it very likely will be the next environmental mitigation stepping stone that this tribe will use to extort ownership and control of even more land and money.

One parcel of property at at time, rest assured that the federal government via a tribal government agenda hopes to restore back to the CSKT and other Northwestern tribes the entirety of their “aboriginal ceded (and already paid for) lands” to the detriment of all other citizens and property owners that stand in their way.

And the worst thing?  This has nothing to do with culture, the tribal corporation contributes very little to the management of the resources, and it is little more than a vehicle used to control others or guilt them into “more mitigation”.  We are not fooled by this scam, but yes, the CSKT have perfected it quite well.

Let’s see how long they can continue this under the light of informed citizens.

 

Tester Fumbles the Ball

©2018 Concerned Citizens of Western Montana

Senator Tester's Official Portrait

What is that saying about “hoisting yourself on your own petard”?

Until this week Senator Jon “I’m Just a Farmer” Tester, vying for re-election in November, has been minding his P’s and Q’s in an attempt to be seen as the most conservative Democrat that ever existed.

Heck he almost seems like an everyday guy in the ads currently plastered all over the media.   While his voting record against all things related to a “Trump agenda” belies his newly found “inner conservative democrat” , he portrays himself as an advocate for farmers, veterans, and protector of our public lands.   In other words, if he thinks Montanan’s like it, Jon will embrace it.  At the same time,  Jon relies on the fact that the folks back home won’t pay attention to his votes against tax cuts, the repeal of Obama Care and Trump nominations to fill important positions in the administration.

We know how the game is played.  The goal is to fly under the radar and get re-elected to the Senate in November.  But unfortunately for Jon, Admiral Jackson, Donald Trump’s pick to run the Department of Veteran’s Affairs got in the way.  Jon felt it was his “duty” to weigh in on Admiral Jackson’s nomination in a most vicious and negative way.  After all Jon is a ranking member of the Veteran’s Affairs Committee, and political ads tell us he’s the greatest veteran’s advocate since sliced bread.

Was it his hubris, or did the Democrat elite require him to step up and take one for the team?  Either way, his decision to destroy a man’s reputation for political gain has the potential to result in his ouster from the senate in November.

Ronny Jackson Allegations / Tester

While we cannot be sure what prompted Tester’s participation in the take down of Trump’s nominee to lead the Veteran’s Administration, we are pleased to see Tester being called out for his despicable actions.

Early this morning Donald Trump called for Tester’s resignation.

Allegations made by Senator Jon Tester against Admiral/Doctor Ron Jackson are proving false. The Secret Service is unable to confirm (in fact they deny) any of the phony Democrat charges which have absolutely devastated the wonderful Jackson family. Tester should resign. The…..

….great people of Montana will not stand for this kind of slander when talking of a great human being. Admiral Jackson is the kind of man that those in Montana would most respect and admire, and now, for no reason whatsoever, his reputation has been shattered. Not fair, Tester!

WILL THIS TURN OF TESTER EVENTS IMPACT THE  CSKT WATER COMPACT?

What might all of this mean in the context of the Flathead Water Compact?

In previous posts, we’ve discussed some of the big problems with the Jon Tester CSKT water compact bill S3013 introduced into committee in 2016.

After listening to a conference call with Tester’s Indian Affairs staffers and Lake County Commissioners earlier this week, it is abundantly clear that Tester did not write the bill, nor did he read it.  And neither did his staff.  Instead of answering important questions about the bill, they stepped all over themselves. They didn’t even attempt to respond when asked one very simple question:  Who wrote the bill?

While they hemmed and hawed, and never did answer the question, the fact that it was a rhetorical question never occurred to them.  We already knew the answer:  CSKT attorneys, lobbyists and consultants wrote the bill.

To Jon, there must have been no need to read a bill that he proudly sponsored and put his name on.  If it’s good enough for the CSKT, why should he care about it’s impacts to 360,000 other western Montanans, or the other western states where tribes are located?

So what happens if Jon Tester has now stepped into a pile of political manure that he cannot recover from, and is unable to carry the water compact ball forward for the benefit of the CSKT tribal corporation?

What will happen, “heaven forbid”, should a Republican prevail in his place?

Not to worry.  Rest assured that the bases are well covered.  The CSKT are far too smart to put all of their eggs in the Jon Tester basket alone.

In fact, experience shows it would be quite beneficial to tribal interests if a “republican” were willing to save the day.  After all, it worked quite well in the Montana legislature in 2015.

Anatomy of the CSKT Water Compact

FARM:  Grassroots, Astroturf or Something Else?

Bruce Tutvedt:  CSKT Lobbyist or Legislator?

Our best guess for a possible heir apparent?  Russell Fagg, a current GOP candidate for U.S. Senate could likely be the tribe’s first draft pick.  He openly supports the water compact, his genealogical chart is properly aligned, and some of our local bully compact proponents are already shouting their Fagg support from their Ronan rooftops.

But not to worry, other candidates are also eligible for the draft.  In fact, any other candidate or current republican congressional will do just as well, if they can be properly “convinced” as to the wonders of the Flathead Water Compact.

Stay tuned as we report on how this all plays out.

 

 

 

Time to Release the Liens!

©2018 Montana Land and Water Alliance

Under contract with the United States, the Flathead, Mission, and Jocko Valley Irrigation Districts, through their water users, paid off the construction costs of the Flathead Irrigation Project, including the power system of Kerr Dam and the power distribution infrastructure in 2004. The United States placed a lien on all private lands within the project as security until the project construction costs were paid.  The complete system payoff was completed in 2004 as provided in this Federal Register Notice of 2006.

From the irrigation district contracts:

All construction costs heretofore or hereafter incurred by the United States on account of the irrigation system of the project ( after deduction of the amounts discharged through the application of the net power revenues accumulated on May 25,1946, as provided in section 18 of this contract) and all uncancelled operation and maintenance costs heretofore or hereafter incurred by the United States on account of the irrigation system of the project shall be, and are hereby made, a first lien under the Act of May 10, 1926 (44 Stat. 453,464-466), against all lands within the project, including those not yet designated as irrigable, and the existence of such lien is hereby recognized and acknowledged by the District.

and, upon project repayment

After the total amount covered by such lien which is chargeable against any particular farm unit or other separately bounded landholding has been paid, and all rights of the United States to incur costs, impose assessments, enforce charges or collect repayments with respect to the lands included in such farm unit or landholding have terminated, the lien against such parcel of lands shall be released by the Secretary of the Interior, and a recital of the existence of the lien shall be made in any patent or other instrument of title issued by said Secretary prior to such release.

With the information on the Federal Register Notice, and this contract language, it is possible for any individual to now file for the release of the US irrigation lien on your property.  The irrigation districts of course may also write and request the release of the liens, but know that you as an individual can do that right now.

What you need to write your letter to the Secretary of the Interior is

  • Your location within Irrigation District, how many acres irrigated by the Project, and the legal description of those acres (township, section, range)
  • Language of irrigation district contract (above), or simple notice that “according to the irrigation district contract”
  • Copy of Federal Register Notice of 2006 (above)
  • Copy of portion of deed to land that indicates the land has the US irrigation lien

Presto!  Your lien release letter.  Release this lien requires a proactive approach on your, and hopefully the District’s part.  Talk to your friends and neighbors–spread the word.

Attached HERE is a sample individual lien release letter for your use!

Required Project O&M Turnover to FIP Landowners

According to the contracts between the United States and the three irrigation districts, two things are supposed to happen when the project construction costs are repaid: release of the liens, AND the passage of the management and operation of the Flathead Irrigation Project to the landowners within the project:

…then the management and operation of the project shall pass to the owners of the lands irrigated thereby, to be maintained at their own expense under such form of organization and under such rules and regulations as may be acceptable to the Secretary of the Interior…

The 1908 amendment to the Flathead Allotment intended that the federal irrigation and power project was to serve everyone, not just the Tribes.   In 1924, 80% of the landowners in the Flathead Irrigation and Power Project were non-Indian.  In 2018, 90% of landowners are non-Indian.

The first attempt to achieve this transfer likely began in 2006 and culminated in a transfer agreement in 2010, the “Cooperative Management Entity” (CME).  The CME consisted of a disproportionate representation of project landowners, with the Tribes and majority project landowners were appointed to 50% membership each, rather than in the 90%-10% ratio.  While the CME was able to accomplish a great amount of work in the few years it operated, and got the BIA to operate the project in a manner properly protecting all interests,  it was destroyed by the pro-compact components in 2013 when the two smaller districts withdrew from the Flathead Joint Board of Control (FJBC).

On a side note, in 2014 the FJBC reconvened and began working on regaining project operation and management, but the same people attacked and destroyed the FJBC again. Disingenuously, these people now want to “reconstitute” the FJBC.  Lucy hold the football for Charlie Brown, anyone?

But, with all due respect to the CME, was it really a transfer of operations and maintenance?  For example, the membership did not adequately reflect the contract holders with the United States who paid for the construction of the project–aka the majority landowners–and favored the Tribes who unabashedly always express their disdain for irrigation.

More importantly, what about the lien release?  The FJBC negotiator of the CME was one Alan Mikkelson, who negotiated without legal counsel.  Did he forget the liens?

…and the Compact?

How convenient for the Compact Commission, the Attorney General, Governor, the Tribes, and the United States to ignore the law, pretending that these established legal relationships and realities don’t exist!  And how convenient for Senator Tester to just turn the entire federal irrigation project infrastructure over to the Tribes, along with Montana’s give away of the water rights?

Its time to change the dialogue and frankly, to hold the United States accountable to all of the promises it made to all its citizens. Release the liens, and turn the project management and operations over to the landowners!

A Reminder

©2018 Montana Land and Water Alliance

A not-so-small thing is happening in Northwest Montana that if allowed to proceed, will impact the entire western United States. Our friends in Kalispell, former state Senator Verdell Jackson, Jim White of Northwest Liberty News, and Tim Orr of St. Ignatius provide this overview!

The CSKT Compact Candidates

©2018 Montana Land and Water Alliance

Our thanks to the Western Ag Reporter for publishing this article!

The 2018 CSKT Compact Candidates

Catherine Vandemoer, Ph.D.

One of the most disappointing elements of this year’s primary election in Montana is the extent to which candidates who claim they support the CSKT Compact know nothing about it.  Recall that in 2015 a question was asked on the House floor whether anyone in that body had read the compact.  Only 3 representatives raised their hands. Thus, the Montana legislature’s vote, in addition to being unconstitutional for lack of a supermajority, was also uninformed.  Recall also that the only way the CSKT Compact passed the legislature was to change the House rules so that a bill that failed in committee could make it to the floor, and then allowing a simple majority to vote against Montanans in favor of the CSKT Compact.

The truth of the CSKT Compact was that it was “negotiated” in private, without public input or revision, between the CSKT, the Bureau of Indian Affairs (BIA), and the Montana Reserved Water Rights Compact Commission (Commission), an unelected, unaccountable board dominated by the Governor’s appointees.  Nothing was “negotiable” in terms of the Tribes’ demands, so the state’s role was basically capitulation. The BIA’s inability to fairly represent irrigators within the federal Flathead Irrigation Project is well known, and the state of Montana refused to represent state citizens in the Compact negotiations.  Instead of representing state citizens, states’ rights, and state sovereignty, the state of Montana put its thumb on the scale of “tribalism”, defined as being organized as an advocate for a Tribe.  This is a crucial point: the state advocated for the Tribes and not its own citizens, and in the process gave half of the state’s water to the federal government, pretending they were giving it to the Tribes. This is one of the worst “deals” negotiated by any state in the country, and contrasts significantly to the way other western states such as Idaho, Washington, Wyoming, New Mexico, and Colorado have handled their settlement negotiations with or litigation regarding the water rights of the Tribes.

The facts of the Compact that lead directly to its unconstitutionality, violation of federal law, and the destruction of states’ rights were never acknowledged by the state, nor did they care to inform their citizens.  Face it, the entire CSKT Compact was a public propaganda campaign, fueled by millions of dollars supplied by the CSKT, and had nothing to do with fairly settling the water rights of the CSKT, protecting culture, or improving lives. In my view every single legislator that voted for the CSKT Compact violated their oath of office to protect the Montana and U.S. Constitutions.

The Pro-Compact Candidates

So, what are our federal and state candidates saying about the CSKT Compact?  The first type of candidate is a state representative who voted for the compact but who now says, “I no longer support the compact as written”.  This is typical of republican representatives like Greg Hertz (R-Polson) who even at this late date does not understand the actual harm this compact will cause his constituents. Saying you no longer support the compact as written is an “easy” way to take the heat off after casting his uninformed vote.  Hertz wants to be Speaker of the House, but as his constituent, I can’t trust that he will make the right decisions that protect Montanans especially on property rights.  What other votes will he make that ruin the lives of Montanans and then later say he doesn’t support the bill as written?

Even though candidates like this “no longer support the compact as written”, they should understand that the compact is being implemented right now by the state inside a federal irrigation project without federal approval of the compact, and that this implementation will deprive irrigators of their historic use of water.  Its sad that the lack of information about the compact’s impacts are still unknown by the legislators who voted for it!

The second type of candidate, at the federal level, is “100% for the compact” and pledges to do everything they can to get it passed in Congress.  This type of candidate is typified by Russ Fagg who claims he knows about the compact by reading the state of Montana’s summary.  In my view, the state’s summary continues to misinform Montanans of the very real constitutional and legal problems with the compact, and of course fails to acknowledge the state’s mistake of giving western Montana’s water away to the federal government.

Based on his early comments on the subject, Mr. Fagg doesn’t realize that the compact is flawed, and must be revised to bring it into compliance with federal and state law, as well as other settlements in Montana and across the west.  By stating that “this compact is the best deal we’re going to get”, Mr. Fagg is advocating only for the CSKT because he believes that all the Tribes’ expansive, nearly state-wide claims would be upheld in a court of law.  But there is serious evidence to the contrary:  the Tribes’ expansive claims cannot be supported by law or the Treaty of Hellgate. This fact would be revealed if the CSKT water claims went through the Montana Water Court as part of the general stream adjudication.

There are other numerous places that give rise to concerns about possible bias in favor of the Tribes over Montanans in Mr. Fagg’s portfolio, including the fact that he has received funding from the same outfit hired by the Tribes to promote the compact —Mercury Consulting.   His wife is a founding member of the engineering group Dowd-HKM, based in Billings, that is the “go to” firm for many Tribes across the United States and for the government on the technical side of litigation or settlement of federal reserved water rights.  In addition, Karen Fagg was on the board of the group “Farmers and Ranchers for Montana”, an organization developed by Mercury Consulting to create, in my view,  the illusion of public support for the Compact.

Candidates like Mr. Fagg also represent the state’s entrenched forces advocating for increased federal control over water above the state prerogatives and authority.  Like others, Mr. Fagg claims that the CSKT Compact represents “conservative” and “republican” values, and that “federalism” requires that Congress just pass the CSKT Compact as is, without review.  But what is conservative about federalizing the water resources in western Montana, or using its citizens water rights as collateral to avoid environmental lawsuits?    The Compact needs a thorough scrub at the federal level.  Could Mr. Fagg deliver?

Neutral?

The third type of candidate—at both state and federal levels—says nothing.  These candidates may either not know about the compact or are remaining “neutral” in order to get elected.  Some may believe that any stance against or for the compact will “trigger Tribal funding” of their opponents.  The reality is that the Tribes already have their money in the senatorial race and are hedging their bets.  Their preferred candidates are Jon Tester or Russ Fagg, as both have promised to quickly introduce the compact to congress and get it passed.  Indeed, Jon Tester already tried in 2016.

Whether it is important or not to remain silent on one of the most critical issues to affect Montana in its history remains a question for these candidates.  In the meantime, the silent candidates may not be able to address the serious concerns of Montanans on the Compact and may be less aware of them at the D.C. level if they get there.

Principle above Politics

Finally, the fourth type of candidate, represented by Dr. Al Olszweski, U.S. Senate candidate,  takes a public stand against the CSKT Compact based on the factual violations of the federal and state constitutions and law in the compact, and the detrimental impact of the Compact to private property rights and property values across western and eastern Montana. These candidates are concerned about the huge outlier the CSKT Compact is in comparison to the other compacts in Montana, the most recent being the Blackfeet compact.  These candidates note factually that in the CSKT Compact, Montana’s water is given to the federal government, and that Tribal members are not well-served. These candidates also realize how Montana’s legislative process and duty to its citizens was compromised by the state’s “tribalism”, and how strict adherence to the Constitutions would have obligated legislators to vote against the compact.

A candidate like Dr. Olszweski is more likely to enter the U.S. Senate with an idea of how this CSKT Compact must be reformed and brought into compliance with federal law and other Indian water settlements, rather than rushing to submit it as a bill right away.  Dr. Olzcweski is not likely to shy away from difficult issues like the Compact and with this knowledge, can serve all of Montana’s citizens including Tribal members disaffected by it.

We reiterate that the CSKT Compact really had nothing to do with the resolution of the federal reserved water rights of the CSKT—it was a document intended to set precedent, not solve problems. In my view, supporting the CSKT Compact now means the following: (1) supporting the legislature skirting the Montana and US Constitutions, thus violating their oath of office; (2) giving western Montana’s water, and authority over it, to the federal government; (3) supporting tribalism over states’ rights and authorities; and (4) supporting the devaluing of Montana’s property rights.  The blind support offered to the compact by so many politicians spells trouble for Montana. By law, the state will not get another chance to review this compact after Congressional review and approval.

We ask Montanan’s to make an informed decision in the primaries and the general election.  Doing your own research will confirm the many issues presented in this letter.  And we ask the politicians to stop thinking about their election and re-election and start working for the people of Montana.

Righting the Ship

© 2018 Concerned Citizens of Western Montana

But, CSKT has been unwilling to accept this compromise, they want the DMR’s (Density Map Regulations) to remain regulatory for one class of citizens and voluntary compliance for a different class of citizens. I have tried to understand,unsuccessfully, why CSKT would be so opposed to moving the DMR’s from regulatory to advisory for those citizens under Lake County’s jurisdiction. For a nation that has fought against discrimination and unequal treatment under the law for decades, how can they support regulations that are inherently discriminatory against other people living here who are under the County’s jurisdiction?       ~Commissioner Decker, March 13, 2018

This afternoon our Lake County Montana Commissioners voted unanimously in support of a Resolution of Intention to repeal the Lake County Density Map and Regulations.  While they could have taken the path of least resistance, they chose instead to do the right thing, and we congratulate and thank them for striving to right the ship that is our local governance, before it capsizes.

Today’s action is a strong step in the right direction, and is one of several other recent actions that commissioners have been taking to make the public aware of important CSKT-related issues that have a serious negative impact on the county’s ability to govern and provide services to local residents. These hard but necessary  discussions include Public Law 280, the loss of Kerr Dam tax revenue, and the negative impact that tribal fee to trust land transactions have had on the tax revenue base.

In a packed room at the county courthouse in Polson, Commissioner Gale Decker read a statement that summed up his reasons for supporting a repeal of these regulations, instead making them advisory.  His moving and empowering comments in their entirety can be found at this link:

Gale Decker Comments 03/13/2018

We have no doubt that today’s actions by the commissioners were not taken lightly, nor were they easy.

We know this because we recently attended a commissioner meeting in Pablo where the CSKT tribal council did all that they could to coerce convince the commissioners to comply with the tribe’s insistence to retain the Density Map and Regulations.    In fact it was more than insistence, it was bullying, plain and simple.

The Pablo meeting was a stark reminder to those of us involved in the water compact battle who will never forget Rhonda Swaney’s response in a legislative committee hearing when asked about the tribe’s mistreatment of tribal members and non-members who dared to oppose the water compact: “that’s the way we do business on the reservation.”

Kudos to all three commissioners on the actions taken today.  May this be the beginning of an awakening for the citizens of Lake County.

The meeting was recorded and we will post excerpts of it as soon as they are available.

Commissioner Gale Decker 03/13/2018 Comments Concerning his reasons for supporting the Growth Density Map and Regulations:

Comments of opposition from CSKT Tribal Planner and Member of Lake County Planning Board Janet Camel:

Comments concerning repeal from CSKT Attorney Jordan Thompson:

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!