Property liens questioned in irrigation talks
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A state legislator is pushing for the federal government to answer questions about liens that have remained in place against properties using the Flathead Indian Irrigation Project, even though the project’s construction debt was paid off almost a decade ago.
In a Dec. 1 negotiating session of the proposed Confederated Salish and Kootenai Water Compact, Senator Debby Barrett, who is a member of the state’s negotiating team, asked the federal government team to explain the liens’ status.
“The Board of Reclamation liens have been mentioned again,” said Barrett, a Dillon Republican. “Why have they not been released and what (is) the conflict or question between this and the Bureau of Indian Affairs? I would just like the federal government to let us know at our next meeting – Dec. 10 – how this does or does not apply to this compact and (what is) the status of those liens?”
The proposed compact would settle water rights claims for the Confederated Salish and Kootenai Tribes, some of which are likely to be in dispute with claims that could be filed by users on the Flathead Indian Irrigation Project if the compact doesn’t pass. The tribes have limited their water rights claims to west of the continental divide under the compact, but have said they will file as many as 10,000 claims as far east as Billings if the compact isn’t approved by the 2015 legislature. A state-imposed, June 30, 2015 deadline looms for the tribes to file their claims in Montana Water Court if negotiation is unsuccessful. Further complicating the matter is an ongoing federal lawsuit filed by the tribes earlier this year asks that the ownership of the water in the irrigation project be declared.
Property owners have repeatedly asked about the status of the liens in public meetings regarding the compact, and Duane Mecham, chair of the compact’s federal negotiating team, told irrigators in a Nov. 19 irrigation project meeting that the status of the liens is being investigated and that he didn’t know why the liens haven’t been released.
“That question came a week or two ago in one of our negotiating sessions,” Mecham said. “I will do some investigating on that. As a general legal principle, liens are put on a property all the time, and the person or entity who put the lien on doesn’t go and take it off in the normal course of business. It is usually up to the seller of the property to get those liens cleared. We’ll investigate to see if it’s a situation the BIA can address.”
Mecham was not present at the Dec. 1 meeting to answer questions about the liens because of a death in the family.
The three irrigation districts entered into repayment contracts in 1926 and 1948 to pay off the construction debt for the project that resulted in the liens being placed on irrigators’ properties. The construction debt ended up being paid off in 2004, not from irrigators, but from Kerr Dam net power revenues, BIA engineer Jeff Harlan told irrigators Nov. 19.
Ronan resident Kate Vandemoer questioned Harlan’s claims and said that she doesn’t believe the net power revenues from the dam have been properly applied to the project since 1985.
“You still have the liens on the property so technically the irrigators are still under the 1948 repayment contract,” Vandemoer said. “Those net power revenues are missing, and have not been applied to this project and I say if you disagree with me, provide that accounting.”
While why the liens remain in place is a mystery, the status of net power revenue payment is not, Harlan and BIA attorney Jennifer Frozena said. The 2004 repayment of the project’s construction debt wouldn’t have happened without the application of the net power revenues, Harlan and Frozena said.
“I think I’ve heard from several of you that there is a concern that there may be a giant stash of net power revenues out there that may be tapped into to cover some of these operation and maintenance needs or deferred maintenance needs,” Frozena said. “That’s just not the case. Every year when we have net power revenues, there are certain provisions of the 1948 statute that allows those to go to certain purposes, and the last remaining purpose is the (operation and maintenance) of the irrigation project, but that amount is very little.”
The Montana Reserved Water Compact Commission, federal government, and Confederated Salish and Kootenai Tribes will meet a 1 p.m. at the KwaTaqNuk Resort on Dec. 10 to negotiate.
