Lake County District Judge C.B. McNeil has issued an order that puts a planned vote on a Flathead Reservation water rights compact on hold.
In his Dec. 14 ruling, McNeil said that a negotiated water-use agreement must first be approved by reservation irrigators either through a vote or petition. He also ordered that the water-use agreement must be submitted to his court before it goes to the irrigators.
The agreement has been the subject of ongoing negotiations between the Confederated Salish-Kootenai Tribes, the federal government and the Flathead Joint Board of Control, a panel that is supposed to represent the interests of irrigators.
But McNeil’s ruling is in response to a complaint filed by the Western Montana Water Users Association, a group of about 100 member irrigators who claim that the Joint Board of Control has not adequately represented their interests. That is why the board is characterized as the primary defendant in the association’s lawsuit.
A nine-member Water Rights Compact Commission was scheduled to vote today on a compact that would quantify tribal water rights off the reservation and provide a framework for administering water rights on the reservation. The separately negotiated water-use agreement was considered an integral component of the overall compact. If approved by the commission, the three-pronged compact would be forwarded to the Montana Legislature early next year for ratification.
The association’s lawsuit cited Montana law requiring that any contract with the federal government affecting irrigators must be approved by three irrigation districts on the reservation, and the complaint charges that it can’t be approved by the Joint Board of Control alone. It cites another state law requiring that the contract must be submitted to the court and then be approved by a majority of irrigators either through vote or petition.
The complaint contends that the Joint Board of Control and the three irrigation districts “have failed to comply with Montana statutes put in place by the Montana Legislature to ensure that contracts with the United States are legal and fair to irrigators, subject to a vote of irrigators and have been approved by this court.”
McNeil agreed with the association’s arguments, but provided up to 30 days for the Joint Board of Control and the irrigation districts to respond. A hearing would then be scheduled.
Jerry Laskody, a St. Ignatius area rancher and a spokesman for the water users association, said there was urgency in getting a ruling before the scheduled Dec. 19 vote.
“What we argued is that the Joint Board was in the process of getting a vote, and the compact commission was in the process of getting a vote to go forward with the compact,” he said. Judge McNeil agreed.
Association members are entirely unsatisfied with the way the Joint Board has represented them in regard to a reservation-wide water allocation that is a main part of the water-use agreement, Laskody said.
That water allocation, providing for an average of 1.4-acre feet annually, is based on tribal hydrology studies that the Joint Board has not adequately challenged, said Laskody, adding that the models put forth by the tribes “are not valid. They don’t make sense with what we measure on the ground.”
But the Joint Board of Control has developed no data to counter the tribal water studies.
In a recent letter to the editor, Tribal Council Chairman Joe Durglo defended the water studies, saying they were corroborated by the state, the federal government and an independent study funded by the state. He said objections to the water allotment “are grounded in fear, not fact.”
Laskody, however, says he can demonstrate that the allocation would provide just over half the water he currently uses for irrigation. Some irrigators are concerned that the tribes would charge them unknown amounts for the water they have traditionally used, Laskody said.
Laskody contends those irrigators’ concerns and the information they have submitted to influence negotiations on a water-use agreement have been “ignored” by the Joint Board of Control.
Laskody added that “if you want public comment, you have to respond to public comment, too. It’s not been a two-way street. It’s like a big black hole.”
Jay Weiner, an attorney who represents the Water Rights Compact Commission, confirmed that today’s scheduled vote on the compact would be delayed. He said he hopes it won’t take a full 30 days to schedule a hearing on the association’s case, because the commission still intends to advance a compact to the Legislature in 2013.
If approved by the Legislature, the compact must then be approved by Congress, the Confederated Salish-Kootenai Tribal Council and the Montana Water Court, a process that is expected to take several years at least.
Reporter Jim Mann may be reached at 758-4407 or by email at firstname.lastname@example.org.