This page is dedicated to what’s being discussed behind the scenes as concerning the water rights compact, in the words of the compact commission and others who have worked very hard to advance this compact forward.
When we become aware of other items, we will post them. Read or listen and decide for yourself. If you know of anything you think we should add, please CONTACT US to let us know.
CSKT FILES LAWSUIT 02/27/14
On 02/27/14 the CSKT filed suit against the Department of Interior, the Montana Water Court, the 20th District Court of the State of Montana, Irrigation districts of the Flathead Irrigation Project and other individuals. This suit is intended to circumvent the courts of the state of Montana in a blatant attempt to get the federal courts to declare that the CSKT own all the water. Attorney for the Flathead Irrigation district Jon Metropoulos responded by asking Attorney General Tim Fox to get involved in this issue to protect the land and water rights of its citizens and the institutions of the state of Montana. See both documents below.
HAVE THE TRIBES CLAIMED MORE WATER THAN EXISTS?
COMMENT – I have heard a rumor that the compact will not quantify the CSKT reserved water right. Without quantification, I am unsure how adverse affect will be determined.
RESPONSE – No proposal for this section of the compact has yet been released. The summary of the February 7 Task Force meeting included the following question and answer:
QUESTION – Will the compact specify or cap the flow and volume of the CSKT reserved water right?
ANSWER BY JAY WEINER – Maybe. This is a complicated issue. If the reserved right is quantified numerically (either by volume or flow rate), it will likely be larger than the available supply. The Compact Commission will seek sideboards on the use of the reserved right to protect existing water users.
WHERE ARE THE NUMBERS? HOW MUCH WATER IS NECESSARY TO FULFILL THE PURPOSE OF THE FLATHEAD RESERVATION?
The whole purpose of the compact is to quantify the FEDERAL RESERVED WATER RIGHT OF THE TRIBES. So you can imagine our surprise when the public review and comment documents were released and there was no quantification in the compact document. This is what we were told in early October 2012 by Jay Weiner, the compact commission’s attorney (50 seconds):
AHEM! Mr. Weiner says putting the numbers upfront is important, but the 1,000 or so pages of abstracts are more important or expedient for implementing the compact faster.
If putting the numbers in is an important part of getting the compact passed, we wonder why the commission has failed to provide them.
Is it at all possible that the commission knows that the people of western Montana, and legislators would not pass the compact when they saw that in many cases, the commission was relinquishing more water than exists in the areas impacted?
COMPACT COMMISSION CHAIR ADMITS THEY HAVE NOT PROVIDED THE QUANTIFICATION NUMBERS:
Why hasn’t the commission provided the public and legislators with the amount of water being conceded to the CSKT in these negotiations?
Another quantification stonewall cam from Chris Tweeten during the compact hearing in Helena. During the House Judiciary Committee hearing for the CSKT Water Compact, Mr. Tweeten confirmed that the commission had not provided quantification numbers. Please listen to his response here (26 seconds):
TRIBE PUSH TO CALL ONLY AGAINST IRRIGATORS WATER?:
Here is a 10 minute audio extracted from the 4 hour plus meeting of the compact commission in Helena on 08/02/12. Listen and see what you think.
Let’s see if we get this right. The irrigators on the Flathead Irrigation Project will be forced by the water use agreement to relinquish their project water rights to the tribes in exchange for an unguaranteed amount of water from the tribes. Does the compact really “protect existing uses of water” like the commission is always telling the public they are? You decide.
WHAT IS THE GRAND BARGAIN?
This audio is from a compact commission meeting 08/02/12 in Helena, concerning the Unitary Management Ordinance. If this “ORDINANCE” becomes part of the compact, it virtually ensures tribal jurisdiction over the water rights of non-Indians living on private land within the exterior boundaries of the reservation. In other words kiss your private property rights and protections under the laws and constitution of the state of Montana with respect to your water rights goodbye.
WHAT THE TRIBE SAYS ABOUT THE COMPACT:
Charkoosta News Supplement 08/02/12 Tribal Council Minutes
Charkoosta News Supplement 01/10/13 Tribal Council Minutes:
“John Carter and Rhonda Swaney, Legal Department, discussed the Kootenai Tribe of Idaho’s request to be a participant in the State-Tribal water rights compact. The Kootenai Tribe of Idaho is a non-treaty tribe. Council thought this matter should be discussed by elders. John will prepare a response letter from the Tribal Council.”
WHAT’S THIS ALL ABOUT?
Excerpt from Charkoosta News 07/25/2013 (See whole article here)
Burland said that in his profession, he works with tribal and non-tribal members. He said he has noticed a trend of non-tribal individuals and businesses benefiting from tribal land leases who are openly funding and supporting efforts to oppose the tribes’ Water Rights Compact. “I know of three very large leases that are going on that are very against the tribe in water rights. In my mind, the tribe is funding them to fight us,” he said.
Tribal council vice-chairwoman Carol Lankford (Ronan) asked Burland to name the individuals he was discussing for further investigation. “We’re very careful about our land leases so that we don’t lease to people on the (Western Water Users Association) list. We cross reference to make sure that doesn’t happen,” she said.
Excerpt from Charkoosta News 07/18/2013: (See the whole article here)
Tribal Chairman Joe Durlgo (St. Ignatius) asked Tribal Attorney John Carter to explain why the tribes may be required to “staff up” its legal team in regards to water rights. Carter explained that the tribes have been in negotiations with state and federal representatives since the early 80’s to draft a written compact that would honor and protect the tribes’ treaty water rights, while complying with the state’s water code.
Although it was approved for recommendation by the state’s negotiation team, the CS&KT Water Compact failed in the state’s 2013 legislative session. Carter said tribal representatives and their staff were “treated somewhat poorly” during legislative hearings regarding the compact. “The legislators refused to let us speak or answer questions during the hearings,” he said.
Since its negotiation attempts failed, the tribes are faced with the possibility of litigating its treaty water rights in the Supreme Court. Carter said there are an estimated 6,000 non-Indian water rights claims on the reservation and several others off that would have to be resolved.
WATER USE AGREEMENT DAMAGE CONTROL?
Alan Mikkelsen, former consultant for the Flathead Joint Board of Control, wrote this letter concerning Irrigator Feedback on Draft Agreement of the Flathead Irrigation Project Water Use Agreement: Water 071612.
WHEN AND WHY DID THE STATE CAPITULATE THEIR POSITION?
Here is a document that came from a Freedom of Information Act request. This is a 02/21/08 memo from John Tubbs to Susan Cottingham. At the time, Susan Cottingham was staff director of the Compact Commission. Mr. Tubbs is now head of the DNRC. This memo was intended to set sideboards for the CSKT compact negotiations, and includes a fairly long list of criteria for negotiations.
Comparing this list to the compact documents we see today, a reasonable person should ask what in the world changed in the last five years to bring about a complete capitulation by the state? Please check out the document at the following link:
WHY AND WHEN DID THE IRRIGATION BOARD CAPITULATE ITS POSITION?
Here’s an article from a 2003 FJBC Flathead Joint Board of Control Newsletter. It is clear that the board disagrees with the demands of the CSKT at that point in time. Note: This section pertains to what we call the “old Joint Board”. Due to the dedicated efforts of irrigators, and through a series of elections and a recall, the old board of control was replaced with commissioners who are interested in preserving irrigator water rights and ensuring that irrigators interests are protected.
RESERVED WATER RIGHTS, QUANTIFICATION:
In November 2001 the CS&KT presented to the State a proposal for quantifying their water. They asked the State to grant that the Tribes own ALL the water on and around the reservation. They also want the right to administer the use of all the water (to be able to say who can use it).
This is in direct conflict with Montana Law, its Constitution and all federal law. The U. S. Supreme Court has clearly given the states the responsibility to determine how much water was reserved for Indians on the reservations within their borders. The Tribes have refused to drop their proposal and allow negotiations to continue. They claim the State just needs to recognize that the Tribes actually own all the water, then it can have a deal. If the State will do so the Tribes will allow needy applicants to obtain water use licenses that the Tribes can revoke whenever they want to. These are revocable permits. When the State couldn’t do that at the December 2002 session, the Tribes declared that they alone will quantify the water rights on the reservation. They said it may take them two years to do it.
Perhaps the change took place about the time Steve Hughes left the compact commission and became member at large on the joint board of control, and a member of the CME board? See Page 3 of this DNRC Publication
An average person might think that putting Hughes on the board is problematic, perhaps a lapse of judgment on the part of the leadership of the Joint Board. Seeing him in action this past year, no one has to ask where he now stands on this issue.
There’s been much talk recently about disclosure of possible or potential conflicts of interest of the board. We think that is an excellent idea, and encourage the joint board commissioners to pursue a process that will mandate any conflicts of interest commissioners and board consultants might have be made public. We also ask that these people do the honorable thing and recuse themselves from decisions and proceedings where a conflict, or the appearance of a conflict may exist.
That’s just plain old personal accountability and common sense, and is not a reasonable expectation of those placed in a position of public trust.
DOES THE COMMISSION INTEND THAT CITIZENS HAVE NO RECOURSE ONCE THIS COMPACT IS RATIFIED?
In a recent article, WHAT IS MUTUAL DEFENSE? we discussed how the lawyers who wrote this unconstitutional and illegal 1,400 page Flathead water compact requiring all of the negotiating parties to defend it against legal and legislative challenges. If we didn’t know better, it would be easy to think that these attorneys intended to bankrupt the average citizen, or to frustrate and demoralize them to the point that they will just stop trying to protect and defend their property rights.
The other trap the commission has laid for the people is their refusal to do any impact studies on the compact. Instead, they say studies will only be triggered after the compact has been ratified and is being implemented. Huh?? So in other words you have to pass the bill first to find out what is in it.
Here is a transcript of a discussion that Water Policy Interim Committee Chairman, Senator Chas Vincent had with Melissa Hornbein, attorney for the compact commission on January 6, 2014:
Senator Vincent: Do you believe that the commission has adequately addressed economic, environmental implications and discussed that in the body of this report and subsequent public hearings?
Melissa Hornbein: I believe that the commission has done adequate background work but we’ve never specifically targeted environmental or economic impacts in any of our other prior compacts for a MEPA (Montana Environmental Policy Act) or NEPA (National Environmental Policy Act) review. The rationale being that the commission’s approval of a compact and recommendation of approval to the legislature is not an agency action triggering such review and moreover, especially our bigger compacts which are generally the tribal compacts involving the infrastructure development projects will have specific elements that require a MEPA or NEPA review where there is under what is termed NEPA case law, and irretrievable commitment of resources to begin those projects. With regard to the technical review we have files and files and pages and pages of technical review dealing with how we got the quantifications for the various water rights and what the basis for those was. And I would certainly invite anyone to come in and talk with me or Ethan Mace (hydrologist) about how those numbers were reached.
Senator Vincent: So along that line of conversation, with regards to MEPA and having it applied in the actions found after ratification. What would be the recourse if you will, of a citizen under MEPA if he or she was determined to have irreparable harm for the action that was being essentially implemented by the ratification of the compact? Under current MEPA, what would have happened if there was an injunction sought?
Melissa Hornbein: Under current MEPA I’m sure you’re well aware, it’s a procedural statute not a substantive one. So a citizen or someone who is concerned with the scope would have to bring litigation based on the argument that the review itself was inadequate and did not comply with the statute and therefore if they were found to be rights, there would be an injunction issued requiring the agency or the compact commission to go back and rectify the oversight in the review. But in terms of stopping a project because an individual person or even a group would believe there would be harm to their interests…. MEPA does not do that.
Senator Vincent: So there would be essentially no recourse for a citizen is the point that I was making.
This revelation adds one more layer to the criticism to the commission’s policy of no impact studies being done ahead of time. Not only do you have to pass the bill to find out what’s in it, but once it’s been passed you will have no recourse under the MEPA law itself. The compact commission knows and understands this. They admitted it in this simple exchange.
For more information, please reference this post: The Light of Day