The Confederated Salish and Kootenai Tribes of Montana officially acquired license control and assets of Kerr Dam on Sept. 5, renaming the hydro operation at the foot of Flathead Lake the “Salish Kootenai Dam,” despite a last-ditch legal effort to block the acquisition.
The CSKT held a ceremony in Pablo, Mont., on Saturday Sept. 5, with tribal council members, drums, dancers and historical photographic displays to mark an event that was negotiated 30 years ago.
Tribal Council Chairman Vernon Finley said that “It is a time of great happiness and great sorrow … We are regaining what we lost … we have a great responsibility.”
The dam was purchased for $18.2 million from Northwest Energy, after a succession of ownerships by PPL Montana and the Montana Power Co. Negotiations for a transfer of the Federal Energy Commission license and ownership of the dam date back to 1985.
The dam was built on tribal lands by a subsidiary of the Montana Power Co. in 1934 at a bend in the Flathead River flowing downstream from Flathead Lake. It was one of the first hydroelectric dams in the country to be licensed by the federal government, with a 50-year term that arranged for lease payments to the tribes.
Since then, tribal leaders have strived to acquire the dam. The tribes filed a license application competing against Montana Power Co. in 1976, prior to the first license’s expiration in 1980.
That led to a nine-year dispute that ended with a negotiated settlement in 1985 with a new 50-year license that included provisions for tribal co-management of the dam and an option for the tribes to acquire the dam for the final 20 years of the license term, starting in 2015.
The turn of events are historic. “We are the only tribe that is a sole operator of a dam,” said Rob McDonald, tribal communications director.
“We paid the conveyance price and Northwestern accepted,” said Brian Lipscomb, chief executive officer of Energy Keepers Inc., the tribal subsidiary that will operate the dam. “Under the contract that was negotiated 30 years ago, today we can rest assured that both parties have performed, in good faith, and both EKI and Northwestern Energy have met their obligations — allowing the tribes to become owners of Kerr Dam.”
McDonald added, “The dam will be operated to the regs of the same previous owners.”
There has been opposition. Montana State Sen. Bob Keenan, R-Bigfork, and former state Sen.Verdell Jackson, also a Republican, filed a motion in a Washington, D.C., district court last week seeking to block the license transfer.
The motion was denied on the same day of a hearing on the matter, Sept. 4, on all counts.
The court ruled that a restraining order is “an extraordinary remedy that may only be awarded on a clear showing that the plaintiff is entitled to such relief.”
“Plaintiffs have failed to make such a showing,” the court ruled.
“Specifically, plaintiffs attack the lack of a public hearing regarding the transfer of the Kerr Project license to Energy Keepers, Inc., a wholly owned tribe subsidiary and the designation of CSKT and EKI as co-licensees. Plaintiffs have failed, however, to meet their burden to demonstrate that FERC was obligated to provide a public hearing for the Kerr license transfer.”
“Moreover, that we have waited until the eve of the transfer counsels against the granting of an emergency injunction,” and that “may be grounds for denial because such delay implies a lack of urgency and irreparable harm.”
The plaintiffs, the court noted, had been aware of the Sept. 5 license transfer date for more than a year.
The ruling also states that the plaintiffs failed to substantiate claims that questions of equity tilt in their favor. “To the contrary, the equities tilt in the favor of concluding that a transfer of the dam
to the (CSKT) are in accordance with a plan that has been in place since 1985 and to which plaintiffs failed to challenge in court until the eve of the transfer.”
Brian Lipscomb, chief executive officer of Energy Keepers Inc., said there will be no changes in the way the dam has been operated, because the terms of the original license are still in place.
Lipscomb said water users and the public will not be impacted in any noticeable way. “The only change is in a positive way, in that people who live around Flathead Lake are going to manage it … and they appreciate that,” he said, adding that he has spoken with many Flathead Lake property owners who support the tribal acquisition of the Salish Kootenai Dam.
The dam is a three-unit hydroelectric plant on the Flathead River about five miles southwest of Polson and the natural outlet of Flathead Lake. The units have a total generating capacity of 194 megawatts. (One megawatt can satisfy the average energy needs of 750 households.)
The dam began operation in 1938. It is 541 feet long and 205 feet high.
Its installation raised the level of Flathead Lake by 10 feet over the natural lake outlet. The dam’s 28-mile-long reservoir has a storage capacity of 1.2 million acre-feet.
The dam is classified as a “storage generation” project because it uses the water stored in its reservoir to generate electricity.
Flathead Lake, which lies in the Flathead Valley of northwest Montana, is the largest natural freshwater lake west of the Mississippi. The lake is 28 miles long, up to 15 miles wide and more than 300 feet deep.
— CBB, March 7, 2014, “Arbitration Panel Sets Price For Confederated Salish/Kootenai Tribes Acquiring Kerr Dam On Flathead” http://www.cbbulletin.com/429933.aspx
— CBB, August 26, 2011, “Federal Grant Aids Salish-Kootenai Tribes In Preparing To Acquire Flathead River’s Kerr Dam” http://www.cbbulletin.com/411834.aspx