Commissioners reach out to Biden to remedy "treaty depredation"

The Lake County Commissioners sent a letter to President Joe Biden June 6, asking him to intercede “on behalf of two counties and affected U.S. citizens visiting this area” and to make compensation for “depredations” by the Confederated Salish and Kootenai Tribes, mostly pertaining to the low water level in Flathead Lake last summer. 

The letter references the Blackfeet Treaty, signed in 1855 by the leaders of eight tribal nations including the Flathead and Kootenai, and refers specifically to Article 8, which states in part “that the navigation of all lakes and streams shall be forever free to citizens of the United States.”

The letter contends that the Tribes have “breached” the treaty’s promise of “free” navigation by charging property owners to use the lakebed for dock pilings. The letter also asserts that last summer’s low lake level, which commissioners say was caused by Energy Keepers Inc. releasing water from the tribally-owned Seli'š Ksanka Qlispe' Dam “for power generating purposes,” made “most of the dock, warfage, piers, and access unusable for boating purposes.”

The lower water level – up to 30.5 inches below full pool – caused “significant damage to businesses, the shoreline and also made many persons unable to utilize the marina facilities, including owned or leased boats,” contend commissioners, hence the charge that it impacted navigation.

The commissioners’ letter also says that by limiting access to parks or other facilities in Elmo and Polson that are held in trust for the Tribes or owned by the Tribes, to tribal members only, CSKT “denies access for navigation to all other citizens at those locations,” adding that those closures “also seem discriminatory.”

According to Lake County Commissioner Gale Decker, the letter was mostly authored by former Lake County civil attorney Wally Congdon, who is now deputy county attorney in Mineral County. Congdon “is very knowledgeable about the treaties,” Decker wrote in an email.

Although the introductory paragraph says the letter is written “on behalf of citizens of two counties,” Decker said that reference to a second county “should have been edited out,” because two of the three Flathead County commissioners either declined or weren’t available to sign on.

“The County is not interested, nor do we have the resources, to get involved in litigation with the Feds or anyone else over the lake level, but we are exhausting other administrative remedies,” Decker wrote. “Having a full lake during the summer months is in the best interests of our residents, businesses and visitors.”

FERC petition

The letter echoes some of the concerns that the commissioners expressed in a petition sent to the Federal Energy Regulatory Commission March 1. In that document, the commissioners urged the agency to take steps to guarantee that Flathead Lake be kept at or near full pool to ensure that lakeshore residents have an emergency escape route, especially during wildfire season.

The winter of 2023 brought low snowfall to the Flathead basin and unseasonably high temperatures in early May delivered an early and rapid snowmelt. Although the lake filled quickly, the water level began to plummet as the volume of water flowing into the lake dwindled and dam managers at both Hungry Horse and SKQ sought to meet downstream obligations.

While FERC ruled that Energy Keepers complied with license requirements last year, the commissioners say “EKI must be held to a higher standard than mere compliance with their license when it comes to public safety.”

Commissioners recounted several wildfires that have occurred on both the east and west shores of the lake and asserted that the low lake level “negates any use of a secondary escape route for residents due to wildfire.”

In their petition, commissioners encouraged the Bureau of Reclamation, which operates Hungry Horse Dam, and Energy Keepers to begin managing the two reservoirs for drought mitigation instead of flood control “if climate change claims are true.”

They also suggested that EKI “should consider leasing SKQ Dam to a corporation that has more experience and expertise in managing a hydroelectric dam,” and that the lease agreement “could contain a condition that the lessor maintain a lake level of no greater than one foot below full pool during the summer fire season.”

Previous license holders (Montana Power Company and Northwestern Energy) “were able to maintain the lake at full pool or very near in years when the snowpack and spring precipitation amounts were significantly below historical levels” reads the petition.

In its response, the Tribes called the petition “procedurally deficient and improper,” and charged that Lake County was “attempting to disguise its interest in keeping Flathead Lake at full pool to achieve recreational desires of a small group of lakefront dock owners in the cloak of a public safety concern.”

Instead, the Tribes suggested the county address their concerns about wildland fire “through land use planning and zoning on private lands within the county.”

According to Decker, FERC has not responded to the county’s petition.

“The letter to the President is another avenue available to the County in its attempt to keep the lake at full pool during the summer,” Decker wrote last week. “As an agency of the Federal Government, FERC is answerable to the President. He could – but he won’t – order FERC to order EKI to maintain full pool, but it is an administrative remedy that is available to us.”

The Tribes’ perspective

Jordan Thompson, an attorney who is currently CSKT’s acting executive officer, said the commissioners were meeting with the Tribal Council June 6, the same day the letter was dispatched to President Biden, to discuss the future of Public Law 280.

“There was no mention of the letter,” Thompson said. “So, this did come as a surprise to the Tribes.”

He added that discussions of treaty rights “are to be expected because we are living within the boundaries of the Flathead Indian Reservation, which was established by a treaty between the Confederated Salish and Kootenai Tribes and the U.S. government.

He did not believe, however, that the letter to the President conveyed “an accurate characterization of the relevant treaties and their terms on the Flathead Reservation or federal Indian law.”

As to the commissioners’ concern that certain areas along the lake are restricted to tribal members only, Thompson said, “CSKT honors our relationship and provides generous opportunities for everyone to experience our treaty-reserved homeland, which includes the southern half of Flathead Lake.”