Powerbrokers want compact put into effect

PABLO — Discussion about the controversial CSKT Water Compact was focused on how it would be put into effect, rather than if it would, at a recent CSKT Tribal Council meeting here.

Meanwhile, those irrigators who oppose the compact would like to add some language that clearly defines what rights they have to critical irrigation water.

State and tribal powerbrokers spoke openly about the methods proponents can use to make sure Montana’s 18th and final regional compact is enforced.

Without it, some experts agree that it could force the entire state into a protracted and expensive adjudication that would eventually leave the tribes in control of all irrigation and water rights on reservations.

The State-Tribal Committee includes four state senators and four state representatives, and all of them showed open support for getting the compact approved.

Melissa Hornbein, a Special Assistant to state Attorney General Tim Fox, reminded those that a clock is ticking toward a harsh deadline.

“The 2015 legislative session is the last opportunity to ratify (the compact) before tribes are statutorily compelled to file for their water (rights),” she said. “The state wants to secure enough water to maintain the (Flathead) water project but not pay for, or take control of, day-to-day project operations.”

She said the state’s goal is to, “provide enough water for the project so irrigators’ deliveries are protected.”

Alan Mikkelsen, a water rights expert and consultant, said the 133,000-acre Flathead Water Project is the largest owned by the United States in Montana.

He said the Flathead, Mission and Jocko Irrigation Districts, whose majority of members do not support the compact, were formed to collect land taxes and repay the federal government for the project’s construction.

“The irrigation districts here have never owned or operated a headgate, canal or a piece of machinery to maintain those facilities,” he said at the meeting. “They never owned controlled or delivered a single drop of water. (Irrigators)Have always had the right to use a proportional share of water.”

Mikkelsen has often said the irrigators have, “rights to water but not water rights.”

Irrigating district board members like Jerry Laskody and Bryan Bohn said their lands are owned on a “fee simple” status that come with water rights. They fear the compact gives half the power to control rights to project water to the tribe that only owns a small portion of the acreage.

With state and federal lawmakers supporting the compact, and the deadline for the tribe’s mandated suit looming about a year away, irrigation district administrator Johanna Clark made an impassioned plea for one last meeting between compact supporters and anti-compact irrigators.

“My (board members) are not anti-compact,” she told the council members and tribal relations committee members at the April 28 meeting. “We are asking for one more meeting.”

On Monday, Clark re-affirmed that the irrigators who resist the compact aren’t against it on whole but want understandable language that re-assures them that they can maintain their farms and ranches.

“We all want the same thing but we want them to show us how this protects us,” she said Monday. “We can have a civil discussion.”

State Representative Dan Salomon said he is willing to attend a meeting called by the anti-compact irrigators to avoid further legal wranglings.

“I’m not representing anybody but me,” he told the council. “I hope for renegotiations because the state has no business administering an irrigation project and parties can get along. But the only people who are trying to take away water rights are the people who are against this compact.”

Mikkelsen thinks it might be too late.

“The litigation train has left the station,” he said. “And unless it is derailed by the Montana legislature approving the compact, we pretty much have the next couple decades outlined for us.”

Bozeman-based attorney Hertha Lund, who represented irrigators in other parts of the state that are under a compact, issued a stern warning to the council.

“If (the compact) is not done, it will throw the whole state of compacts back into an adjudication process,” she said. “If you don’t pass this, we attorneys will have a lot of work as we go forward.”

Mikkelsen is referring to the CSKT’s federal suit filed in February that seeks to tribal ownership of water and water rights on the Flathead Reservation.

The suit names as defendants the secretary of Interior, the Bureau of Indian Affairs, a state District Court, the Montana Water Court, three irrigation districts on the reservation and “an unknown number of John Doe defendants claiming (Flathead Indian Irrigation Project) water as a personal water right.”

Jon Metropoulos, a Helena attorney representing the Flathead and Mission irrigation districts, wrote to State Attorney General Tim Fox asking for the state to intervene.

“In this suit, the CSKT claim to own legal title to all of the water on, under, and flowing through the Flathead Reservation,” Metropoulos wrote in March. “Moreover, they claim to own legal title to all of the water rights to such water that is delivered to my clients, and other irrigators, by the Flathead Irrigation Project.”

Tribal spokesman Rob McDonald described it differently.

“This is a narrowly tailored suit that asks the federal court to declare the ownership of water by the Flathead Irrigation Project,” McDonald said.

Metropoulos said the tribes claim to own water delivered to irrigate about 127,000 acres, 90 percent of which are owned by individuals on about 2,000 farms and ranches.

“To be direct and very clear, these farmers and ranchers, including those I represent as the lawyer for the Flathead Irrigation District, include both tribal members and nonmembers. Thus, from our perspective this is emphatically not a matter of Indian versus non-Indian,” Metropoulos stated.

A group called Concerned Citizens of Western Montana contends that the lawsuit attempts to achieve much of the content of a controversial tribal water rights compact that failed to get legislative approval last year.

But based on Hornbein’s statements, Fox’s office does not support Metropoulos’ plea.