Flathead County makes Big Mistake on Water Compact

by Dr. Ed Berry

EXB150On January 8, 2015, I am sad to say, my two friends, Flathead County Commissioners Pam Holmquist and Phil Mitchell, signed a letter opposing the CSJT Reserved Water Compact. Only one Commissioner, Gary Krueger, understood the value of the Compact and refused to sign the letter.

On January 10, 2015, the Compact Commission held a public hearing in Kalispell. Flathead Commissioner Phil Mitchel explained a reason he signed the letter opposing the Compact was because he received 18 phone calls against and only 2 phone calls for the Compact.

By comparison, on November 4, Flathead County voters cast a 31,263 votes for Mitchell’s race of which Mitchell received 20,703. Therefore, it is obvious that the 18 phone calls the Compact opposition made to Mitchell do not represent a meaningful sample of voters and were clearly a result of a pitiful attempt by organized opponents of the Compact to affect the Commissioners vote, which it seems they did.

Commissioners missed the big picture: the Burden of Proof.

The big picture is not about nitpicking problems with the proposed Compact. The big picture is about whether Flathead County, Montana, will be better off if Montana approves the Compact or if Montana dismisses the Compact.

This is a real-life replay the Robert Frost famous “The Road Not Taken”,

Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth;

The big picture is to evaluate what is at the end of each road. So far, no Compact opponent has evaluated this big picture.

At the Compact hearing, Attorney Hertha Lund described what is at the end of the road if Montana does not approve the Compact.

In May 2014, Lund wrote a comprehensive report that shows every objection the two Commissioners made is wrong and also shows may benefits of the Compact the Commissioners did not consider.  Everyone should read Hertha Lund’s report.

On December 1, 2014, Lund published a shorter rebuttal to those who oppose the Compact. Here she again rebuts every opponent claim against the Compact and no opponent has even tried to show that Lund is wrong.

In addition, on August 22, 2014, Helen Thigpen, Staff Attorney for Montana’s Legal Services Office, published a comprehensive rebuttal to opponent’s claims that everyone should read.

Yet Compact opponents continue on like Energizer Bunny’s beating their same old drum without ever rebutting what Hertha Lund has written. Do Compact opponents not understand that repeating the same old invalid pathetic arguments does not make them valid?

On January 8, I noted all attorneys familiar with the Water Compact strongly advised:

If Montana rejects the Compact the other path will be hundreds to thousands of CSKT off-reservation water rights lawsuits. Montanans will pay for long, expensive legal battles to defend their water rights in Montana courts, federal courts, and possibly the Supreme Court. The court trials will take an estimated 10 to 30 years to complete.

Contrary to the two Commissioners’ report, the costs to Montana and Flathead County will be significant. Overwhelming odds favor the CSKT to win their lawsuits because some CSKT water rights begin when they signed their treaty and other water rights are “time immemorial.”

During the decades of lawsuits, the State of Montana will not be able to issue any new water rights. Businesses that might have moved to Montana may go elsewhere. There are not enough private attorneys in Montana to handle all the legal cases. If the Compact fails, Montanans should send their kids and grandkids to law school.

The federal government will support all tribal legal claims. The federal government does not run out of money or time. People do. When the dust settles in 20 or 30 years, Montanans will have wasted their money and time and opportunity to build Montana’s economy, and they will record in their history books that Compact opponents voted for their self-destruction.

Not one opponent of the Compact has made the case that Montana will fare better by taking the road leading to the lawsuits.

Commissioners used the failed Senator Verdell Jackson argument.

The Commission claims the CSKT Compact should not allow off-reservations water rights because none of the other six compacts include off-reservation water rights and off-reservation water rights are not supported by the Treaty of Hellgate.

This argument fails because objectors wrongly assume the courts will agree with their interpretation of the Treaty of Hellgate. In fact, the courts have already made key rulings that contradict the Commissioners’ interpretation of Hellgate.

When the CSKT files their lawsuits, the courts will reference the US Supreme Court Winans (1905) decision, the US Supreme Court 1979 decision, the 1983 Ninth Circuit Court Adair decision, the Montana Supreme Court Greely (1985) decision, the Ninth Circuit Court 1985 decision, and the Washington Supreme Court 1995 decision, all of which recognize off-reservation water rights for Indian treaties similar to the CSKT treaty. State attorneys have explained this is detail. (REF)

Under the Compact, the CSKT will give up its right to call for its water rights off-reservation. This is a significant benefit to Flathead County.

Commissioners assumed all compacts should have similar amounts of acre-feet per tribal member.

This argument fails out of the box because it uses the wrong measure as its base. Acre-feet per tribal member is irrelevant as a comparison. Commissioners should have used acre-feet per irrigated acre and then adjusted for hydrologic differences on each reservation.

The Commission completely failed to structure this argument to have any meaning. Using this argument demonstrates the Commissioners do not understand the fundamentals of an irrigation project, or that they listened to the incompetent advisors.

The two Commissioners objected to granting off-reservation water rights to CSKT.

If the two Commissioners wish to object to the CSKT off-reservation water rights then they should have been present 160 years ago when the CSKT negotiated its treaty with the US government.

Contrary to the Commissioners’ assumption, the Compact does not grant the CSKT off-reservation water rights. The Compact acknowledges the CSKT the off-reservation water rights the CSKT already has.

If Montana dismisses the Compact as the two Commissioners suggest, then Montana and Flathead County will learn about CSKT’s off-reservation water rights the hard way. The CSKT will win lawsuit after lawsuit over the next decades, leaving Flathead irrigators with water rights subject to call by the CSKT.

If Montana approves the Compact, the CSKT will relinquish its right to make off-reservation calls on water. This is a BIG advantage of the Compact to Flathead County that Commissioners can and should estimate.

The two Commissioners claimed the Compact would cause “dire consequences” to Flathead County. This is an empty claim with no proof.

On the contrary, the two Commissioner’s opposition would cause “dire consequences” to Flathead County by opening the door for hundreds of CSKT lawsuits to support their claim for their off-reservation water rights followed by a loss of present water rights.

The two Commissioners used the vote by the FJBC opposing the Compact as a basis for its opposition to the Compact.

Commissioners backed the wrong horse. They should have known the present FJBC is not the original FJBC that was dissolved but a reconstituted FJBC now controlled by a small group of Compact opponents who do not represent the majority of irrigators.

Commissioners should have considered the two letters to Governor Bullock and Attorney General Fox dated January 2, 2015, signed by

  1. The farmers, ranchers and district landowners who operate more than 11,000 acres in the combined 22,000 acre Mission and Jacko Valley Irrigation Districts.
  2. The farmers and ranchers and landowners who operate more than 45,000 acres of land on the Flathead Indian Irrigation Project.

Both letters reply to the FJBC vote of December 30, 2014. Both strongly support the Compact. And both “rebut some erroneous claims being promoted by Compact opponents” who dominated the FJBC vote.

The two Commissioners should have considered the November 2014 election of Rep. Dan Salomon to Montana’s HD 93. Dan’s HD 93 includes most of the CSKT reservation and the irrigators, and Dan’s election was a strong vote by reservation irrigators for the Compact.

Therefore, the Commissioners’ FJBC argument fails because it uses the wrong facts to support its conclusion.

The two Flathead Commissioners object to the Compact’s “settlement” of $55 million with the CSKT.

The two Commissioners may think this is a payment to the CSKT so each family can purchase a new pickup. The Compact is clear about how this money is to be used:

  • $30 million is for a revolving pumping fund that will be needed only when there is not enough water to supply irrigators. Data show this would be necessary only in drier years.
  • $4 million is for stock water management
  • $4 million is for farm improvement
  • $4 million is for hydrologic data collection and measurement
  • $13 million is for habitat conservation.

For a total of $55 million. This money will improve irrigation efficiency in the project which will result in less water use, and will alleviate negative impacts of changes in irrigation necessary for water use efficiency. This money will benefit Flathead County.

The two Commissioners should have considered that the removal of these monies from the Compact would be a deal breaker. Montanans outside the reservation received benefits in the Compact negotiation in return for these monies to improve the project. All these benefits would need to be removed. To demand a significant part of a negotiated deal is micromanagement of Compact details about which the two Commissioners do not fully understand.

The two Commissioners expressed concern the Compact may violate Article IX of the Montana Constitution.

This is another old argument that has no teeth. The two commissioners did not evaluate the rebuttals to the Article IX claims. To summarize their rebuttals by State of Montana attorneys, there are two known opposition claims related to Article IX.

Opponents claim the Compact violates Article IX by taking away individual water rights. In rebuttal, this claim is invalid because there are no vested water rights in Montana due to the 1979 Montana Water Use Act.

Only BIA could have delivered individual water rights in the irrigation project and there is no record that BIA did deliver such individual water rights. If it did, such individuals still would have needed to file claim with no later than 1981.

The Montana Supreme Court ruled that individuals must file for their pre-1973 water rights no later than 1981, and no known individuals in the irrigation project have done so.

In case there is an exception, the Compact allows anyone who has a valid water rights claim to defend such claim in the Montana Water Court. Therefore, the Compact does not take anyone’s water right.

Opponents claim the Compact violates the Article IX required system of centralized records. In rebuttal, the Montana Constitution requires the Legislature to “provide for the administration, control, and regulation of water rights” but does not limit the state’s authority to develop other mechanisms for water right administration. Nothing in the law prohibits the formation of a dual state-tribal board to administer or manage water rights on an Indian reservation.

In summary, to make a case on the Article IX claims, the two Commissioners need to rebut the attorneys’ rebuttals. Lacking a rebuttal of the attorneys’ rebuttals, the two Commissioners’ claims must be dismissed.

Flathead Commissioners request changes to the proposed Compact.

To be relevant, the two Commissioners’ requested changes should have been phrased in the form of “We approve the Compact subject to certain changes,” which they did not do.

In summary, the two Flathead Commissioners failed to state a single valid case in their letter against the Compact.

Therefore, our Governor, Attorney General and Legislators should disregard the Flathead County Commissioners letter in opposition to the Compact.

Commissioners should have considered values of the Compact to Flathead County.

Did you notice the two Commissioners made the same mistake as the radical Components? They only talk about negatives to the Compact and never about positives. That leads to bad reasoning and bad judgment.

Here are some benefits to the Compact that more than balance the claimed negatives to the Compact.

  • The Compact will stop forever any concern about the CSKT making calls on water outside its reservation.
  • The Compact will stop forever all lawsuits by the CSKT for water both on and off its reservation. This area of conflict without the Compact covers two-thirds of Montana. The Compact reduces the size of the CSKT claims to the size of its reservation.
  • The Compact is the best way to manage water in the checkerboard pattern of land ownership in the irrigation project. The Compact harms no one and it does not remove anyone’s proven water rights.
  • The Compact will help all irrigators in the irrigation project, making the farming a better and more efficient business. All of Montana, especially Lake and Flathead Counties will benefit from this.
  • The Compact will conclude all potential Indian-related water lawsuits in Montana. This will allow Montana to move forward to develop Montana’s economy.
  • Under the Compact, the CSKT agrees to share in water shortages. Without the Compact, the CSKT will be able to make calls on off-reservation water, potentially depriving Flathead County irrigators from having enough water to irrigate their crops.

Everyone should know you always get a better deal from a single negotiated settlement than from hundreds of separate lawsuits. If we miss the opportunity to approve the Compact, this unique opportunity in the history of Montana will be lost forever.

The Compact will save Hungry Horse water for Montana.

A BIG advantage to Flathead County the two Commissioners ignore is the Compact stops all calls on water from Hungry Horse Reservoir by Idaho, Oregon, and Washington water users. Whereas, presently, there are significant potential out-of-Montana groups that can take priority over Montana for use of water from Hungry Horse Reservoir.

This Hungry Horse deal alone is reason to accept the Compact. It proves Montana’s compact negotiators have done a superb job of looking after Montana’s interests. Under the Compact, all Hungry Horse water rights stay in Montana. Consider the value of this should we enter an extended drought.

Conclusion

The two Flathead County Commissioners who signed their letter of opposition to the CSKT water Compact made no valid arguments to reject the Compact. They did not demonstrate that Flathead County would be worse off if Montana rejects the Compact. They overlooked the significant benefits of the Compact to Flathead County.

The facts show the Compact will be very valuable to Flathead County. By contrast, the loss of the Compact will be a significant loss to Flathead County and will go down in history books as one of the biggest bureaucratic boondoggles in Montana.

When you look at the big picture and understand the Compact, you can only conclude the CSKT Water Compact is a masterpiece of negotiation and we would be freakin’ insane to reject it.