Dr. Kate’s claims against Water Compact fail

by Dr. Ed Berry

EXB150Dr. Kate Vandemoer (Dr. Kate) will present her case against Montana’s CSKT Water Compact to the Glacier Forum in Kalispell on Thursday, December 17. You may want to read this before you attend.

Dr. Kate Vandemoer has made a lot of waves since becoming a Water Compact consultant to the Compact opposition. She claims we should reject the CSKT Water Compact.

The fact is, Dr. Kate is wrong about almost every claim she has made. At the end of the day, she will go home to Arizona with Montana money in her purse primed to find others who will pay her to tell them what they want to hear, and the Montanans who believed her will be poorer.

Dr. Kate does not understand the Flathead Irrigation and Power Project (FIPP).

On July 24, 1014, Dr. Catherine Vandemoer (Dr. Kate) wrote

Congress directed that, once the construction costs of the FIPP were paid, the project would be transferred to the owners of the irrigated land. The FIPP was fully paid off in the year 2003, and by law, the project is to be transferred to the owners of the irrigated land, now 90% non-Indian. Once the project is transferred, it no longer has a “federal” imprint.

First, Dr. Kate is mistaken about what Congress directed in its 1908 statute. The statute says the project management, not the project title, will be transferred to the owners “upon such terms as are acceptable to the Secretary [of Interior]” after the owners pay the government for the major portions of the unallotted lands, which originally constituted 50 percent of the project. All storage reservoirs and major diversion structures are on CSKT land.

Second, the federal government transferred FIPP management to the owners in 2010 who managed the project well under their Cooperative Management Entity (CME). However, Compact opponents did not like the ratio of the 8-member CME board, which was 4 appointed by the FJBC and 4 appointed by the CSKT. Therefore, the owners asked the federal government to take back management of the project until the FJBC gets a 12-member board with one from the CSKT.

Dr. Kate destroys her credibility.

Dr. Kate also wrote:

The proposed CSKT Compact, however, requires irrigators to give up their water rights to the ownership of the Tribes in exchange for a reduced amount of water far lower than historic use. This plan was ruled an unconstitutional taking of property rights without compensation by a District Court Judge in February 2013.

First, the Compact does not require irrigators to give up their water rights. The fact that opponents to the Compact make this false claim over and over again shows they have no case. If they had a valid case against the compact they would have no need for invalid claims.

This is a Bureau of Indian Affairs (BIA) irrigation project under federal law. Only the BIA can deliver an individual water claim and it is unlikely it ever did. Any individual with a BIA water rights claim needed to file for these rights in 1981 according to the Montana Water Use Act. If there is any individual who meets these criteria he or she has the right to defend the claim in the Montana Water Court unaffected by the Compact.

The Compact conveys water rights but not water ownership to the Tribes. The State of Montana owns the water and grants the right to use the water.

Second, Dr. Kate does not tell you that on April 3, 2013, the Montana Supreme Court voted unanimously to vacate in its entirety Judge McNeil’s “unconstitutional” ruling of February 15, 2013. The Montana Supreme Court made its decision in a record time of less than 24 hours, concluding:

Before McNeil could argue that the individual irrigators’ water rights were being taken without compensation, he would need to determine if they in fact held those water rights. That determination was not made, and the plaintiffs never presented that argument.

Dr. Kate has destroyed her credibility by claiming Judge McNeil’s “unconstitutional” ruling in February 2013 is valid 15 months after the Montana Supreme Court vacated his ruling on April 3, 2013. This is called lying and the inability to accept facts.

Western Montana Water Rights (WMWR) also loses credibility on this issue. Not only did WMWR publish Dr. Kate’s article but WMWR still shows its post about Judge McNeil’s ruling without any reference to it being vacated by the Montana Supreme Court. The WMWR site shows:

JUDGE RULES WATER USE AGREEMENT FOR THE FLATHEAD IRRIGATION PROJECT TO BE AN UNCONSTITUTIONAL TAKING WITHOUT COMPENSATION 02/2013

The WMWR post still reads: “Read Judge McNeil’s decision here.”

Dr. Kate’s conspiracy theory

The rest of Dr. Kate’s article reads like a conspiracy theory. She assumes and implies “intentions” that do not exist to the Compact Commission, the Tribes, the federal government, and the Montana Governor.

She writes:

Moreover, both the proposed Compact and the recently-filed CSKT lawsuit challenging federal land laws have as their goal the complete takeover, ownership, and eventual decommissioning of the FIIP. There are more than 2,000 families, including Indians, which are the target of these aggressive efforts. The Tribes’ lawsuit claims that ALL the privately-held fee land on the reservation, and within the irrigation project, belongs to the Tribes.

In effect, the proposed Compact is a “work around” to the “inconvenient” laws of the United States that have rejected the Tribes’ transparent effort to destroy the FIPP.

The Governor’s recent letter proposing a “limited renegotiation” of the irrigation water use agreement is nothing more than a transparent attempt to eliminate the irrigation districts from any discussion as to the disposition and ownership of their lands and water rights.

No wonder the Tribes and the Compact Commission want this compact so badly. If they had to submit their claims in a court of law, they could very well be denied everything in the proposed Compact because a court has to follow the law, not “work around” it.

These statements are not only untrue, they are alarmist and have no relevance to why we should not approve the Water Compact.

Dr. Kate’s five reasons to reject the Water Compact are invalid.

On December 26, 2012, Dr. Kate Vandemoer, Consultant to Concerned Citizens of Western Montana, published her five reasons to reject the proposed CSKT Water Compact.

All of Dr. Kate’s reasons are invalid or irrelevant. Let’s rebut her claims one by one.

  1. Claim: The Montana reserved rights compact commission exceeded its authority

Dr. Kate does not understand a negotiation. Since the Water Compact is a negotiated compact, there can be no issue of exceeding authority. Also, you never get everything you want in a successful negotiation but you do reach the best compromise. The Water Compact compromise is much better than the results of 1000s of legal trials.

The Commission offered off-reservation aboriginal water rights to the Tribe because the Tribe would most likely win their case in court. State of Montana representatives realize there is significant legal precedent for the Tribal claim to off-reservation aboriginal water rights. See my article “Senator’s claim against Water Compact fails.”

There is no “FIP Agreement” as Dr. Kate claims. The Commission has protected state water users.

The Unitary Management Ordinance does not give Tribes jurisdiction over non-members. The Unitary Management Board (UMB) is an administrative body under the State. The Tribe is subject to the UMB.

The CSKT reservation differs from other reservations in its checkerboard pattern of tribal and non-tribal irrigators. The UMO is the best and simplest way to manage water usage on the CSKT reservation.

The Commission has incorporated all federal, state, and Tribal laws into the Compact. The UMO provides for sharing water management among tribal and non-tribal irrigators.

  1. Claim: The proposed compact violates the Montana constitution and laws

The Montana Legislature established the Compact Commission and a process for the state to avoid expensive, decades-long litigation of Indian Reserved Water Rights.

In the 1970s, Montana began adjudicating all water rights but later realized this process was too slow. Therefore, Montana revised the Montana Water Use Act in 1979 and created the Reserved Water Rights Compact Commission to facilitate the quantification of reserved water rights. The Compact Commission has authority to quantify water rights and does not violate Article IX.

The Compact does not facilitate taking property rights. The Montana Supreme Court ruled there is no property interest that can be taken unless an individual filed for a water right by 1981. According to Preasault v. United States a taking claim must be based upon a compensable property interest. In 1993, the FJBC sued United States claiming its failure to transfer the project to them was a taking of their property. The court found “none of these contracts established an express or implied duty to transfer the management and operation of the project to the plaintiffs.” The court held that irrigation districts did not have a compensable property interest, and dismissed their takings claim. Any individual who may have a valid claim can have file a claim with the Water Court with or without the Compact.

  1. Claim: Required environmental and economic impact analyses have not been completed

No such analysis is required because the Compact changes nothing but the rules of the game. There’s no bulldozer, so we don’t need no stinkin’ environmental and economic impact analysis.

  1. Claim: The federal reserved water rights of the CSKT have not been quantified and the compact documents are not ready for legislative review

Dr. Kate ignores the fact that the water abstracts attached to the Compact are not only sufficient to quantify water rights but also the best way to quantify water rights in Montana.

  1. Claim: The compact fails to consider future growth and undermines the family farm

The Compact does a much better job of providing for the future than any other alternative. The Compact reverses some basin closures that could not be otherwise reversed. The Tribes are not getting any new water rights and any exceptions are negligible.

In her Appendix C, Dr. Kate claims the Tribe’s hydrologic model is “theoretical” and denies “the valid science behind the 1946 Walker Report.” This statement shows Dr. Kate is not even competent in her claimed core field of hydrology and is still mentally living in the early 20th century. Dr. Kate does not understand the vast improvements in hydrologic modelling since 1946 when they did not even have computers and good data.

The hydrologic model is done by a competent engineering group and has been reviewed by the State of Montana and the irrigators. This model is orders of magnitude better suited for planning and managing irrigation water on the reservation than the 1946 Walker Report could ever be.

The old model assigned a constant amount of water to instream flows regardless of the timing in the water year and whether irrigators needed the assigned amount of water. Irrigators only need irrigation water during their growing season.

The hydrologic model assigns more water to the farmers than the historical irrigation quota has been for the last 20 years, giving the farmers more water than before.

The hydrologic model shows how to apportion water among irrigators to give them more water during their growing seasons and matches the water usage with the expected seasonal precipitation and stream flow. This change may make some people, like Dr. Kate, think the irrigators will get less water when the opposite is true.

The Compact’s plan simplifies water management because it deals with only one water rights claim rather than with 1000s of water rights claims. The hydrologic model shows how to distribute the available water among the irrigators to the advantage of all. This is why virtually all reservation irrigators favor the Compact.

A professional opinion of Dr. Kate

Common sense people have figured out that Dr. Kate makes no sense. However, radicals who oppose the Compact believe her because she tells them what they want to hear.

If you have a medical problem, do you run around until you find a quack who will tell you what you want to hear?

Maybe it takes a PhD to know one. The world is full of blabber-mouth PhD’s who never learned the all-important “philosophy” part of their PhD.

Just because you can talk at length about a subject does not make you an expert on the subject. Just because you can shoot many arrows fast does not make you an expert arrow shooter. It takes something else to be an expert: you must hit your target.

Some argue that Dr. Kate’s claims about geoengineering, chemtrail toxins, HAARP, weather control, pharmaceuticals, water treatment, fluoride, agricultural chemicals, radiation poisoning all being the works of Satan, and the Water Compact being a government conspiracy to control population in Montana, have no bearing on her expertise on the Water Compact. I disagree.

We are not talking about religion which is a private matter. We are talking about things that are measurable and conclusions that can be scientifically rejected. Dr. Kate’s rantings indicate she cannot separate fact from fiction, reality from illusion, and this bears on everything she does.

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