Judge rules on irrigation power rates
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The Federal Energy Regulation System issued an initial decision on Dec. 29, 2016 concerning a licensing agreement for the Seliš Ksanka Qĺispe dam.
The Confederated Salish and Kootenai Tribes have operated the SKQ Dam since 2015. FERC regulates the transmission of electricity, natural gas, and oil. They also license hydropower projects.
The Flathead Joint Board of Control, comprised of irrigation districts, filed for a hearing with FERC on May 28, 2015 to negotiate SKQ Dam’s licensing agreement.
For two years, the three groups — FERC, CSKT, and FJBC — have been involved in work to determine if SKQ Dam’s licensing agreement with FERC should include lower-cost power for irrigation within the Flathead Indian Irrigation Project, which occurred with the licensing agreement in the past.
The FIIP Project is owned and operated by the United States Department of Interior through the Bureau of Indian Affairs.
According to documents, Presiding Administrative Law Judge H. Peter Young concluded in his decision that the FJBC “failed in the extreme” to prove that CSKT is required to continue to provide low-cost power.
According to documents, FJBC argued that Congress intended for the licensee of the energy project to provide low-cost power to the irrigation districts, citing principals in the 1926 Act, the 1928 Act, and the 1948 Act.
Judge Young stated that CSKT contends the FJBC interpretation of those statutes abrogates their treaty rights.
Judge Young explained that a line used by the FJBC from the statute to prove their claims, which states “water rights reserved or appropriated for irrigation projects,” does not specifically mention the FIIP. He agreed with the tribe’s conclusion that they cannot be required to continue to make low-cost power available to the FIIP and FJBC.
The United States Department of the Interior takes the position that there is no statutory or other legal obligation for CSKT to continue to make any part of the energy output from the SKQ Dam available to the United States for the FIIP and FJBC.
It was stated that the Interior clarifies that Congress never required the energy project’s licensee to provide power to the FIIP. They authorized the Secretary of the Interior to allow low-cost provisions if deemed appropriate.
The Interior also stated that the FJBC “completely failed” to identify any water rights for power production purposes at the SKQ Dam site or any legal theory entitling irrigators to an ownership interest.
Judge Young explained the history behind the Flathead Indian Irrigation project in his decision.
He stated that the Flathead Allotment Act of 1904 was enacted to assign reservation plots to individual tribal members, and “surplus” unassigned lands were opened to non-Indian settlement.
It also authorized the construction of irrigation ditches to benefit Indian agriculture on the reservation. He states that congress expanded the project in 1908 to serve all irrigable reservation lands for both Indian and non-Indian people.
The initial system evolved into the Flathead Indian Irrigation Project, and it expanded, as it is today, to irrigate approximately 128,000 reservation acres.
The 1908 Act required non-Indian landowners served by the FIIP to repay funds for the construction of the project, which includes 1,300 miles of canals. They also needed to pay annual operation and maintenance fees for irrigation water service. It wasn’t until 1926 that the FJBC was formed under Montana Law to enforce those fees with the 1926 Act.
A 1928 Act authorized the Federal Power Commission to issue licenses for private power development on the reservation for irrigation purposes. And a 1930 license agreement stated that the energy company, then Rocky Mountain, would provide low-cost project power to the FIIP at specific rates, exclusively for pumping irrigation water to be used for households, farm use, and resale, which is the origin for the low-cost power.
In 1948, revenue from the FIIP power division was utilized to collect the remaining debt for construction and operation fees. The project was completely repaid in 2004.
FJBC Chairman Boone Cole said after the last FJBC meeting that the board plans to discuss the judge’s decision and their options at the next meeting.
