Dear Senator, This email is to provide you the top six reasons why you should support the Compact and also to provide a response to Jon Metropoulos’ top three reasons to vote against SB 262. Why a Legislator Should Support the CSKT Compact: It is Good Policy: Even though there are noisy proponents and opponents, even though the bill is large and complex, even though the CSKT Compact could get caught up in this session’s politics, the main reason to support the Compact is because it is good policy and the right thing for Montana. The Compact Resolves the Last Indian Reserved Water Rights Compact: The CSKT Compact is good policy because it resolves water issues for the CSKT Tribes that if left unresolved could bring on decades of conflict for communities on and off the Flathead Reservation. Further, as in any settlement, neither the Indians, the non-Indians, the State of Montana, the CSKT Tribes nor the Federal Government are totally satisfied, which indicates it is a good settlement. The Compact is Good for the Economy: The CSKT Compact is good for the economy on and off the reservation because it provides certainty, keeps water rights holders from having to defend their rights in the Water Court, and it frees up at least 11,000 acre feet of water for new development. The Compact Will Cost Taxpayers Less: The CSKT Compact is good policy because it will cost the Montana taxpayers less than it would cost if the Compact is not passed. With passage of the Compact, the Legislature will commit to fund $8 million in this biennium. It may have to fund another $47 million in the future, if and when Congress approves of the Compact. Without the Compact, Montana taxpayers would pay at least $73 million for increased Water Court funding. It would take decades for the Water Court to finish adjudicating due the 10,000 or more new claims of the CSKT Tribes. The Compact Protects Water Rights Holders From Ongoing Litigation Costs: The CSKT Compact is good policy because it protects Montana water users from ongoing legal expenses and the risk of losing their water rights. If the CSKT Tribes are forced to file their 10,000 claims with the Water Court, then many water rights holders from across Montana will have to hire attorneys and reenter the legal battles fought in adjudication. These legal battles and the reopening of the objection process would cost farmers, ranchers, cities and other water rights holders many millions of dollars. A Bonanza for Lawyers is Usually Bad for Citizens: If the Compact is not passed, it will be the lawyer relief act of this century. Response to Jon Metropoulos’ Three Reasons: Introduction: It is important before I cover the specifics of Mr. Metropoulos’ assertions that you are aware of the Flathead Joint Board of Control’s (“FJBC”) history of litigation against the CSKT Tribes. From 1985 to 20051, the FJBC has sued the Tribes 34 times. In those 34 cases, pursued in Tribal Court, State Courts, Federal Courts, the Ninth Circuit Court of Appeals, the United States Court of Federal Claims, the United States Court of Appeals for the Federal Circuit, the United States Supreme Court, administrative law cases, and before the Federal Energy Regulatory Commission, the FJBC has only prevailed once. See Exhibit A, as attached. My clients, who include three members of the FJBC, do not support any further futile efforts by the FJBC, especially when the current Compact protects their interests better than if Mr. Metropoulos somehow prevailed in his arguments, which has not been the historic trend of FJBC’s litigation efforts against the CSKT. 1. There is Resounding Factual and Legal Basis for the United States to Hold the Water Right in Trust for the CSKT Tribes. Mr. Metropoulos’ first argument relates to his characterization of Congress’ flipflopping on Indian policy since the early 1900s. While interesting, this argument is not relevant to Indian reserved water rights. The key cases dealing with Indian reserved water rights have all taken place prior to, during, and after Congress changing its approach to Federal Indian policy. The Indian reserved water rights cases did not interpret Congress’ flip-flopping as evidence that Congress meant to give project irrigators ownership of the water rights associated with the FIIP. See e.g. Winters. v. U.S., 207 U.S. 564 (1908); U.S. v. Powers, 305 U.S. 527 (1939); Conrad Inv. Co. v. United States, 161 F. 829 (9th Cir. 1908); Arizona v. California, 373 U.S. 546 (1963); United States v. Adair, 723 F.2d 1394 (9th Cir. 1983); United States v. Finch, 548 F.2d 822 (9th Cir. 1976); In re General Adjudication of Gila River System, 35 P.3d 68 (Ariz. 2001). Further, it is my understanding that there has never been a situation where title to a BIA project water rights have been decreed in the name of an irrigation district. In fact, in one of the few cases where BIA project water rights were litigated, a Court in Washington State found that United States held the water rights in trust for the Yakama Tribes and that the non-Indian irrigators had rights with a junior priority date. See In the Matter of the Determination of the Rights to the Use of the Surface Waters of the Yakima River Drainage Basin, 850 P.3d 1306, 1331 (Wash. 1993). Mr. Metropoulos’ statement that there is no legal basis for the CSKT Tribes to own the water rights is simply not accurate, and, in fact, there is ample legal precedent that the only option is for the United States to hold the water right in trust for the CSKT Tribes. 1 I only have data compiled from 1985 to 2005. To the best of my knowledge, there have been no significant changes in the pattern since 2005. Also, in his argument, Mr. Metropoulos provided a “drive by” argument related to Congressional intent. However, as we know, the Court would not look to legislative intent unless the governing statute was ambiguous. Mr. Metropoulos conclusions about “clear legislative intent” do not provide any language from a supporting statute, which means there is no legislative intent to consider. Further, how could an irrigation board that was organized pursuant to State law in 1982 have been contemplated by Congress in 1908 when it amended the Flathead Allotment Act? Federal Indian policy has gone through many, often contradictory phases; however, legal precedent related Indian reserved water rights has, and continues, to stand apart from Congress’ mercurial policy shifts. As an aside, there is a legal argument that the FJBC, which was first organized in 1982, dissolved in 2013, and reconstituted in 2014, no longer has a legal basis for its existence because the FJBC no longer meets the statutory requirements of M.C.A. § 857-1612 (providing that the board of control exists for operation, maintenance and delivery of water). The FJBC does not maintain or operate the irrigation project and it does not deliver water. Additionally, the FJBC is no longer needed to pay off the debt incurred by the irrigation project, as the project has been paid off. Currently, FJBC’s primary activity is assessing irrigators $5 per acre to pay for its attorneys and lobbyists. Next, Mr. Metropoulos argued that the Tribes never put any of the water to beneficial use, which is inaccurate on factual and legal grounds. Factually, the Tribes do own land that is irrigated with project water. Legally, it is not relevant whether the Tribes have put the water to beneficial use. See State ex. rel. Greely v. Confederated Salish and Kootenai Tribes, 219 Mont. 76, 94, 712 P.2d 754, 765 (1985) (discussing that pursuant to federal law and the Montana Water Use Act Indian reserved water rights do not have to be put to beneficial use and are not subject to abandonment). To bolster his arguments that the FJBC should own the water rights, Mr. Metropoulos provided a string cite to Bureau of Reclamation lawsuits which do not apply to the CSKT water rights at issue. None of those cases dealt with Indian reserved water rights, and even though they may be interesting to read, these cases are not relevant. Trying to buttonhole Indian reserved water rights issues into Bureau of Reclamation project issues is like trying to make turn an apple into an orange. Not all federal irrigation projects are the same, especially if those projects involve Indian reserved water rights. Mr. Metropoulos argues that based on my Crow Allottees’ case, the cards would be stacked against non-Indian water rights holders in the Water Court. At best this is disingenuous, because the non-Indian water rights holders who objected to the Crow Compact are currently still involved in legal proceedings before the Water Court. My clients, the Crow Allottees, were dismissed because the Water Court held that the Federal Government represented their interests. The Crow Allottees’ case, if anything, demonstrates that non-Indian irrigators would have a much easier time maintaining their standing before the Water Court. Lastly on this issue, my clients who irrigate a majority of acres in the largest of the three Flathead irrigation districts, do not have faith in the FJBC’s ability to manage the water appropriately, even if the FJBC had a legal claim to the water. Based on the last few years of the FJBC’s leadership, my clients have more faith in the irrigation provisions provided by the 2015 Compact, combined with federal regulations and statutes governing BIA irrigation projects, than they have in the FJBC. 2. The Irrigators Will Maintain Their Historic Use With the Compact. Mr. Metropoulos’ paragraph about water quantity is not based in fact. In actuality, the irrigators will receive their historic use of water. See Declaration of Alan Mikkelsen at ¶ 9, attached as Exhibit B. Also, Mr. Metropoulos erred in his understanding of the WPIC report. Instead of finding that Hydross was inadequate, WPIC stated that the “HYDROSS modeling is a suitable planning model,” and that additional modeling based on HYDROSS would need to be done to create an operational plan. WPIC Report at 12. Additionally, Mr. Metropoulos erred in his statement that the Walker Report related to extra-duty deliveries of water. See Declaration of Alan Mikkelsen at ¶ 9. 3. The Tribes’ 10,000 Claims are a Reality, Not a Threat. In response to Mr. Metropoulos’ “Ash Wednesday Threat” argument, I say the 10,000 claims is not a threat, it is reality. Pursuant to the terms of the Water Use Act, the CSKT Tribes have to file their water rights claims by this July, if the Compact does not pass the Legislature. The Tribes’ claims filings have been deferred to allow for negotiations of a compact Knowing that this deadline was looming, I asked the CKST Tribes’ legal counsel how many claims they were preparing so I could better assess the risk to my clients. Counsel told me they estimated filing approximately 10,000 claims. In a water resource rich area of the state, like the Flathead Reservation, 10,000 claims is not a stretch of imagination; it is a realistic number. Just as other water rights holders in Montana had to file their water rights claims in the late 1970s and early 1980s, the Tribes will have file their claims or lose them if the Compact is not approved. Under the Water Use Act, a claim filing is considered prima facie evidence of the validity of the claim. The initial burden of proof rests with an objector to a claim. The objector must show that the evidence supporting the claim is insufficient or invalid. For example, if the CSKT Tribes file claims on the Musselshell River, this would impact my husband’s ranch and water rights on the Musselshell. We would then be forced to defend against the Tribes’ claims by providing evidence that the Tribes never used the Musselshell or its tributaries. Currently in water rights adjudication, we use affidavits of people who remember historic irrigation practices, aerial photos, or historic reports. In this case, we would have none of that type of evidence on which to rely. Instead, we would likely need to engage professional historians, possibly archaeologists, and other experts (at significant expense) to defend our water rights. Either that, or surrender our rights or have them subordinated and restricted. Therefore, my husband’s rights would be at substantial risk of impact from the Tribes’ likely instream flow right claims until I could prove that the CSKT Tribes had not hunted or fished in the area. If the CSKT filing 10,000 claims sounds scary, it is; not because it is an overblown number, but because it is a realistic estimate. It would also mean embroiling more than half the state of Montana in a water adjudication that would make the last forty years of water adjudication pale in comparison. Mr. Metropoulos was somewhat dismissive of the Court’s statements: “The federal Courts have developed canons of construction in Indian law that recognize the federal trust responsibility to Indians.” Greely, 219 Mont. at 791, 712 P.2d at 762 (citing Northern Cheyenne Tribe v. Hollowbrest, 425 U.S. 649 (1976)). “Any ambiguity in a treaty must be resolved in favor of the Indians.” Id. (citing Washington v. Fishing Vessel Ass’n 443 U.S. 658 (1979)). “Indian treaties must be liberally construed in favor of the Indian.” Id. (citing Tulee v. Washington, 315 U.S. 681 (1942)). He indicated again that Congress’ flip-flopping on Indian policy from 1855 to 1934 changed these doctrines; however, as is clear, all of these cases were decided subsequent to the time when Mr. Metropoulos cites the policy changes. Based upon the FJBC’s extensive history of losing cases on these issues, the United States Supreme Court’s rulings in favor of Tribes and Indian reserved water rights, and the horrendous estimated costs to Montana taxpayers and individual water rights holders to adjudicate the CSKT’s claims, my clients do not want to follow Mr. Metropoulos’ legal advice to roll the dice. I have seen conservative estimates that it would cost at least $73 million in order to pay for the increased costs for state-wide adjudication if the 2015 Compact fails. Further, it is my estimate based on conservative assumptions that no CSKT Compact would cost $1.8 billion to individual water rights holders in order to defend their water rights. Conclusion: Mr. Metropoulos is fighting on faulty factual underpinnings against legal precedent in order to win a lesser right than my clients would otherwise receive with the CSKT Compact. My clients want wet water, delivered in their historic quantities, with those delivery rights protected, as they are in the 2015 Compact. The reality, not the threat, is that Mr. Metropoulos’ path would lead to decades of litigation with, at best, an outcome that would subordinate my clients’ rights to the Tribes with no guarantee of ever having those rights delivered.
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