Commissioners seek documents from Daines

Lake County Commissioners have filed a Freedom of Information Act request with U.S. Sen. Steve Daines’ office in an effort to get documents related to the senator’s proposed Montana Water Rights Protection Act.

Lake County Deputy Attorney Walter Congdon filed the request on Jan. 29. It asks Daines’ office for a record of all negotiations or correspondence, including emails, from Daines or his staff relating to the act.

While Congress is exempt from Freedom of Information Act requests, Congdon argues that Montana’s laws on open government take precedence.

“In Montana the freedom of open government is not just a statutory obligation, it is also a constitutional right,” Congdon told the Lake County Leader.

Daines introduced the water rights act late last year, which seeks a settlement of water-rights claims between the Confederated Salish and Kootenai Tribes and the federal government. His legislation received bipartisan support from U.S. Sen. Jon Tester, as well as support from the Trump administration.

At a presentation in front of the Glacier Country Pachyderm Club in Kalispell on Friday, Congdon called the act “legislation by secret.”

“I would tell you 25 years ago it would be a cold day in hell before I had to FOIA information on a bill that’s cited in an act pending in the Congress from a senator and congressman,” he said at the meeting.

Specifically, Lake County hopes to get information about a “damages report” cited in the act.

In the FOIA request, Congdon noted that in a Jan. 22 letter to the Lake County Republican Committee, Daines’ office said the damages report was “privileged as it directly related to open litigation.”

“If issued publically [sic], it would expose the federal government’s hand if a settlement is not reached and cause the Trump Administration to lose leverage in litigation,” Daines’ letter continued. “That said, I will continue to press the Administration to be as transparent as possible regarding the amount of liability assessed by the Department of Justice due to the damages assessed and claimed by CSKT.”

But, according to the county’s FOIA request, Congdon has found no open litigation related to the CSKT and damages in the Federal District Court of the Court of Claims.

The FOIA request asks Daines office to verify the open litigation referenced in his letter, and further notes that the CSKT water claims are not open as a three-year stay is in place, and that these are not related to damages, but to water rights.

“I’ve never had to FOIA a public official for anything that way in my life,” Congdon said.

He also said he’s sent requests for the damages report to Sen. Tester, Rep. Greg Gianforte, Montana Attorney General Tim Fox, the Bureau of Indian Affairs and the U.S. Department of Justice.

“Everyone is playing a giant game of hide the ball,” Congdon said.

In a statement to the Lake County Leader, Daines’ office said the process leading up to the introduction of the act was transparent.

“Negotiations over the MWRPA have taken place in a transparent way with stakeholders all over the state, including through numerous meetings and phone calls with Lake County Commissioners. Steve looks forward to continuing to engage with them on settling this issue once and for all.”

As part of the proposed act, the Tribes would relinquish 97% of their water claim rights, while Congress would provide the Tribes with $1.9 billion for damages and rehabilitation of the Flathead Indian Irrigation Project. The National Bison Range would also become part of the Flathead Indian Reservation.

Daines’ office contends that the new agreement would reduce settlement costs and save taxpayers $400 million compared to alternative proposals. He also assured that the Bison Range would remain open to public access and that county refuge revenue sharing would continue.

Lake County Commissioner Gale Decker took issue with most of those assertions, and described the act as being full of “ambiguities.”

“Sen. Daines calls it a new agreement. Our question is, what actually is the new agreement?” he told the Glacier Country Pachyderm at last week’s meeting.

Among his concerns, he’d like to see a list of infrastructure projects that would impact the county’s private and public roads.

“That would have a significant impact on our school bus routes, our emergency services,” he said. “So we have a lot of unanswered questions about what projects will be done with this money, or if the county has any input as to when or how these projects are done.”

Decker also worries that any land transfers included in the deal could negatively impact the county’s tax revenue and access to public lands.

“What does that do to [the county’s] payment in lieu of taxes?” he questioned about land transfers. “I don’t know if anyone has looked at that aspect.”

Congdon cited property rights, easements and rights-of-way as areas where he has questions, calling the act a potential “taking of private property rights.”

“Go through the list of what can happen,” he said. “It’s a nightmare, and it’s in the bill. That is the most basic taking of private property rights without compensation that I’ve seen in a federal law, ever.”

While rehabilitation of the Flathead Indian Irrigation Project is expected to bring thousands of new jobs to the area, Decker worries about Lake County becoming the next boom area with insufficient services in place to meet the new demands.

“We know there are not 6,000 workers in Lake County,” he said. “What impact is that going to have on our housing” and the crime rate, he added.

“We could become a Bakken-like area,” he said, referring to the infrastructure and service struggles North Dakota faced as the Bakken oil fields brought thousands of jobs to the area.

Decker said dissolving Lake County could be among some the consequences of the deal, especially if tax revenue drops due to any associated land transfers.

In a later interview Decker added that it was important to “investigate all the potential solutions we might see out there. [Dissolving the county is] one we need to take into consideration.”

According to Congdon, a Senate committee could take up the act as early as April before it moves to the Senate for a vote.