Governor’s staff, irrigation commissioners disagree on compact issues
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ST. IGNATIUS – A meeting with the staff of Governor Steve Bullock was seen as a possible in-road to inserting three major concerns some irrigators want put into the proposed Confederated Salish and Kootenai Water Compact, but irrigation commissioners who returned from the talk said no progress was made during the sit-down.
“It was a dead end,” Flathead Joint Board of Control member Ted Hein said. “It was a wasted effort down there. We went into that negotiating session with no negotiating session. I’m sad to report that, but it is exactly what happened … We went in there with a roadmap and came out with a roadblock.”
The Flathead Joint Board of Control, which represents about 1,500 irrigators who utilize the Flathead Indian Irrigation Project, is not a formal party to the ongoing narrow renegotiation of the Confederated Salish and Kootenai Water Compact. The compact would settle water rights claims for the Confederated Salish and Kootenai Tribes and has been in negotiation for more than a decade. The compact did not pass Montana’s legislative session in 2013. If the compact is not passed by the legislature by June 30, 2015, the Tribes will be forced to file all of their claims in Montana Water Court. Tribal officials have said that they will file as many as 10,000 claims as far east as Billings if it goes to court.
Renegotiation of the compact began this fall, with a narrow scope of addressing elements of the former Water Use Agreement that was an addendum to the compact and dealt primarily with water delivery to the Flathead Indian Irrigation Project.
For the past year, the Flathead Joint Board of Control has opposed the compact, and in October sent the governor’s staff a position statement of three major points it wants included in the document.
Hein said the Governor’s staff was somewhat responsive to having a mechanism to verify that water delivered under the compact to farms is at least equivalent to historic use.
The staff was nonresponsive to the board’s request that the Flathead Board of Joint Control have ownership of the bare legal title of water flowing through the Flathead Indian Irrigation Project and property owners to have the beneficial use title to the water, Hein said.
State officials were also not willing to renegotiate the structure or existence of a unitary management board that would be created under the compact, according to commissioners. The unitary management board of tribal and non-tribal members would handle some water issues that arise on the Flathead Reservation in the future. Some irrigators have complained that the creation of the unitary management board places non-tribal members under the jurisdiction of tribal government, though state officials have disagreed with that claim.
Mike Wessler, deputy communications officer for the governor’s office, confirmed state officials and the Flathead Joint Board of Control aren’t on the same page on some issues.
“We communicated to the attendees that some of the positions advocated by the FJBC are outside the realm of what can be achieved through negotiation or litigation,” Wessler said. “It is in the best interests of all affected stakeholders to resolve legitimate issues and pass the compact in the 2015 legislative session. Toward that end, we continue to listen to the concerns of stakeholders, and will continue working to ensure that reasonable concerns are addressed.”
The Flathead Joint Board of Control planned to try another avenue to voice commissioner’s concerns: the Montana Legislative Water Policy Interim Committee that met Oct. 29 and Oct. 30 for a final time before the legislative session begins. The committee was set to send its recommendations for changing the compact to the Montana Reserved Water Rights Compact Commission on Oct. 30.
A day prior to the committee meeting, the board’s new legal team had not received an answer to multiple requests for documents and information from former attorney Jon Metropoulos. Metropoulos severed a two-decades long relationship with the board in early October, after an ongoing disagreement with commissioners. The new legal team also had not been able to get in touch with a key water expert that Metropoulous had the board contract with specifically for the purpose of testifying before the Water Policy Interim Committee.
Commissioner Shane Orien expressed worry that the team was ill-prepared to make the board’s case.
“My fear is that right out the gate in the meeting with (governor’s staff), they picked up on a lack of water experience,” Orien said. “They point blank asked our attorneys: ‘Do you even practice water law? Do you have water law in your practice?’ I think that set the stage for us.”
Attorney Bruce Frederickson said he was confident his team has adequate experience in private property law and other types of complex litigation to represent the board’s concerns.
“The issues we are talking about really with respect to the proposal and where we are at with that, yes, there are some water law issues, but they are also private property issues that we are very comfortable with,” Frederickson said.
See story below for more information about what happened at the Water Policy Interim Committee.
