Agenda 21 in Montana

GOT WATER? HOW ABOUT THE RIGHT TO USE IT? Posted on March 7, 2015 Written by westernmtwaterrights.wordpress.com

FA Note:  This arti­cle pro­vides back­ground for the sub­se­quent post, “CSKT Com­pact Breaches State Sov­er­eignty”. Agenda 21, Sec­tion II.  CONSERVATION AND MANAGEMENT OF RESOURCES FOR DEVELOPMENT, calls for con­trol of ALL nat­ural resources by the UN’s Depart­ment of Sus­tain­able Deveop­ment, through local indige­nous peo­ples, as with the ongo­ing efforts to remove all four Kla­math River dams in South­ern Oregon/Northern California.

The goal of this web­site is to pro­vide a means for west­ern Mon­tanans to learn about the Flat­head Reser­va­tion or Con­fed­er­ated Sal­ish and Koote­nai Tribes Federal Reserved Water Com­pact nego­ti­ated between the state of Mon­tana, the fed­eral gov­ern­ment and the Con­fed­er­ated Sal­ish and Koote­nai tribes.

This prod­uct of more than a decade of nego­ti­a­tions is a 1,200 plus page doc­u­ment that will impact every­one liv­ing in west­ern Mon­tana. Do not be com­pla­cent.  Do not be fooled.  It is not just a Flat­head Indian Reser­va­tion issue.

This site was estab­lished as a means to com­mu­ni­cate to peo­ple through­out west­ern Mon­tana, and should they so choose, to express their opin­ions, con­cerns, com­ments, and sug­ges­tions about the compact.

The pro­posed com­pact includes 3 impor­tant doc­u­ments and a mul­ti­tude of water abstracts / appen­dices you should be aware of and informed about, the Com­pact, the Irri­ga­tor Water Use Agree­ment and the Uni­tary Man­age­ment Ordinance:

The Reserved Water Rights Compact

This doc­u­ment is sup­posed to QUANTIFY the fed­eral reserved water right for the Flat­head Indian Reser­va­tion.  The cur­rent pro­posed com­pact was com­pleted in Feb­ru­ary 2013 and con­sists of roughly 1,400 pages with the appen­dices and maps.  Some­thing strik­ing about the com­pact is that it does not pro­vide the quan­tifi­ca­tion of the amount of water nec­es­sary to ful­fill the pur­pose of the reser­va­tion.  This is the very pur­pose of negotiations.

The com­pact begins with an incor­rect def­i­n­i­tion of the reser­va­tion that paves the way for the expan­sive tak­ing of water within reser­va­tion bound­aries:  “all land within the exte­rior bound­aries of the Indian Reser­va­tion estab­lished under the July 16, 1855 Treaty of Hell­gate, notwith­stand­ing the issuance of any patent, and includ­ing rights-of-way run­ning through the Reser­va­tion.”   This flawed premise ignores the pri­vate prop­erty of 80% of the reservation’s pop­u­la­tion that is non-Indian, and is used by the state as the foun­da­tional base upon which this com­pact is built.  It is used to ratio­nal­ize giv­ing all water run­ning through and under the reser­va­tion to the CSKT.  Addi­tion­ally the com­pact gives the fed­eral gov­ern­ment time immemo­r­ial water rights for every drop of water in Flat­head Lake, it forces the relin­quish­ment of ALL the water in the Flat­head Irri­ga­tion project, and con­cedes sig­nif­i­cant in-stream flows with var­i­ous pri­or­ity dates through­out 11 coun­ties in west­ern Mon­tana in the Clark Fork and Koote­nai River basins.

The com­pact com­mis­sion has refused to do any impact stud­ies on these doc­u­ments to help the pub­lic and deci­sion mak­ers such as leg­is­la­tors under­stand its envi­ron­men­tal, eco­nomic and legal impacts.  In other words, they have not pro­vided enough infor­ma­tion for peo­ple to truly under­stand its implications. Remem­ber, for all intents and pur­poses this is a FOREVER DOCUMENT, and we only have one chance to get it right.

Flat­head Irri­ga­tion Project (FIP) Water Use Agreement

The Water Use Agree­ment (WUA) for the Flat­head Irri­ga­tion Project was nego­ti­ated between the Flat­head Joint Con­trol Board and the United States / CSKT, but because of lit­i­ga­tion, it was never for­mally approved - this doc­u­ment was once touted to be an impor­tant part of the set­tle­ment because it pre­sented a “major piece of irri­ga­tor pro­tec­tions.”  It was intended to address a large piece of the puz­zle: how water rights and usage will be defined for the Flat­head Irri­ga­tion Project going forward.

The cur­rent iter­a­tion of this doc­u­ment requires irri­ga­tors RELINQUISH their project water rights to the tribe (note the word relin­quish, not make junior), in exchange for money for improve­ments (maybe), and an allot­ment of water that many irri­ga­tors say will not be enough for their oper­a­tions to sur­vive.  Lit­i­ga­tion on this com­po­nent of the com­pact resulted in a dis­trict court judge rul­ing that this agree­ment is an uncon­sti­tu­tional tak­ing with­out com­pen­sa­tion.  While the Mon­tana Supreme Court sub­se­quently over­turned por­tions of this rul­ing, the “uncon­sti­tu­tional tak­ing” lan­guage still stands.

This legal action by irri­ga­tors forced com­pact com­mis­sion into dis­cus­sion of “other options” to this agree­ment.  The state has con­veyed to the pub­lic this is a “pri­vate” agree­ment that they are not part of.  FOIA requests con­cern­ing this agree­ment, and com­ments made by the irri­ga­tion dis­trict attor­ney indi­cate otherwise.

We have asked if this agree­ment is merely a red her­ring because the com­pact is sup­posed to be about quan­ti­fy­ing the fed­eral reserved water rights for the tribe, not irrigator’s water rights.  It has served to focus peo­ple on talk­ing about how much water irri­ga­tors need for their oper­a­tions rather than dis­cussing the fact that irri­ga­tors were being forced to relin­quish their project water rights, and that all water in the project was being given to the tribes.

The Uni­tary Man­age­ment Ordinance 

This doc­u­ment will also be included in the com­pact as an appen­dix.  It for­ever ban­ishes the state of Mon­tana from admin­is­ter­ing water within the exte­rior bound­aries of the reser­va­tion, and is the most egre­gious aspect of the com­pact.  It pro­poses a Uni­tary Man­age­ment Board that will deter­mine how all water issues (state, fed­eral and tribal) are man­aged within reser­va­tion bound­aries.  It also is a bla­tant vio­la­tion of the equal pro­tec­tion clauses of the Mon­tana and United States constitutions.

If approved, it will set a com­pletely new prece­dent and will place 23,000 non-Indians liv­ing on the reser­va­tion under tribal juris­dic­tion for their water rights, and has far reach­ing impli­ca­tions in our country.

If you live within the reser­va­tion bound­aries, it’s imper­a­tive that you under­stand this doc­u­ment and the impact it will have on exist­ing and new uses of water going for­ward.  Don’t let the state of Mon­tana sur­ren­der your con­sti­tu­tional rights and pro­tec­tions con­cern­ing water rights to a polit­i­cal and likely tribal jurisdiction.

NOTE:  DO YOUR OWN HOMEWORK ON THIS COMPACT.  TAKE NOTHING AT FACE VALUE. WE CERTAINLY DON’T HAVE ALL THE ANSWERS, BUT PROMISE TO DO OUR BEST TO PROVIDE YOU WITH INFORMATION TO UNDERSTAND THE DIRECTION THIS IS HEADED. 

The com­pact doc­u­ments are avail­able on the DNRC web­site for pub­lic view­ing: http://dnrc.mt.gov/rwrcc/Compacts/CSKT/

WE STRONGLY ENCOURAGE YOU TO CONTACT THE COMMISSION WITH ANY QUESTIONS, COMMENTS AND CONCERNS YOU MIGHT HAVE CONCERNING THIS COMPACT.  BE SURE TO ASK THEM FOR FACTS, NOT TALKING POINTS

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  Filed Under: Agenda 21, Agriculture, Natural Resources, Property Rights, Sustainability, Water Rights
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