CSKT file suit regarding water rights
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PABLO — The Confederated Salish and Kootenai Tribes filed suit in U.S. District Court, Missoula, on Feb. 27.
The suit defendants are the United States Department of Interior Secretary Sarah “Sally” Jewell; United States Bureau of Indian Affairs; Jocko Valley Irrigation District; Mission Irrigation District; Flathead Irrigation District; District Court for the 20th Judicial District of Montana; Montana Water Court; Michael G. McClatchy, Blanche Crepeau and Alex Crepeau; Judy Harms and Robert Harms; Betty A. Stickel and Wayne D. Stickel; and an unknown number of John Doe defendants claiming Flathead Indian Irrigation Project irrigation water as a personal water right.
The suit asks for declaratory and injunctive relief. Declaratory relief refers to a court judgment which determines the rights of parties without ordering anything done or awarding damage, according to uslegal.com website. Injunctive relief asks for a court-ordered act or prohibition against an act or condition that has been requested; in this case, lawsuits pending in the Montana Water Court and in the 20th Judicial District Court of Montana.
The Tribes request that the Court issue a declaratory judgment reaffirming and declaring that:
• Hellgate Treaty did not implicitly diminish aboriginal water rights;
• when the Flathead Indian Reservation was created the United States reserved all the water on, under and flowing through the reservation for the Tribes;
• the chain of title to land on the FIR has never been broken and for that reason no lands within the borders of the FIR have ever been part of the public domain or subject to general public land laws;
• after FIR was created the Tribes continued their exclusive and uninterrupted use and occupation of Reservation lands and waters for hunting, fishing and gathering practices. Tribal water rights for nonconsumptive aboriginal users carry a priority date of time immemorial.
• all waters of the FIR for consumptive use were reserved for the Tribes pursuant to the Winters Doctrine. The priority date for Tribal and individual Indian consumptive water use is July 6, 1855.
• water rights on the Flathead Indian Reservation could only be acquired as specified by Congress.
• Congress specified the only manner for any non-Indian to acquire a water right on the FIIP in the Acts of 1908, 1912, 1914 and 1936, and that those conditions have not been met by any person;
• the Secretary of the Interior has issued no person a “final certificate of water right” under the FAA;
• the 1904 FAA implicitly reserved to the United States out of the senior pervasive Tribal Winters rights a volume of irrigation water to serve the federal purpose of the FIIP, with a priority date of April 23, 1904;
• as a matter of federal law the BIA is entitled to a volume of irrigation water adequate to maintain beneficial irrigation in the FIIP service area when such volumes of irrigation water are physically available within the FIR and do not adversely impact the Tribes’ “time immemorial” instream flow rights; and
• FIIP has always been a BIA Indian irrigation project and not a Bureau of Reclamation irrigation project.
B. Enjoining (asking):
1. the District Court of the Twentieth District of Montana in Cause Nos. DV-12-327 and DV-13-105 from taking any action to determine who owns water rights, or claims to water rights made available through any FIIP irrigation facility, structure, reservoir ditch or other means; and
2. the Water Court of the State of Montana in Cause No.WC-2013-05 from taking any action to determine who owns water rights, or claims to water rights made available through any FIIP irrigation facility, structure, reservoir ditch or other means.
C. Awarding the Tribes’ reasonable attorneys fees and costs.
D. Awarding such other and further relief as this Court deems just and proper.
