Commission Approves New Letter Opposing Water Compact

Latest letter causes tensions on county board when document's origin called into question

By Molly Priddy
Beacon file photo

The Flathead County Commission voted to send yet another letter to the governor and state attorney general about the proposed water compact with the Confederated Salish and Kootenai Tribes, and new dynamics on the county board brought more tension to an already-loaded topic.

The latest letter came from Commissioner Phil Mitchell, who joined the board on Jan. 1 after being elected last November. In it, the commission voices opposition against the water compact, writing, “[i]t will be harmful to Flathead County, as well to the rest of Montana and neighboring states.”

It notes that the compact between the CSKT and the Montana Reserved Water Rights Compact Commission grants off-reservation water rights for the first time in the state’s history of forming such agreements with tribes, and it disputes the amount of acre-feet of water per tribal member the compact would allow.

The letter also states: “We also object to Montana taxpayers writing a check to the CSKT Tribe (sic). For more than a century and a half, the federal government has had sole responsibility for supporting the Tribes. We have seen no justification for Montana taxpayers to assume this responsibility.”

There are also concerns that the compact doesn’t comply with Montana Constitution Article IX, which states “All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.”

The letter asks for five changes to the compact: to provide a specific amount of water quantification of the federal reserved water right for the reservation; to eliminate the mutual defense clause so Flathead County citizens “will not have to fight the state of Montana when defending their water rights;” to bring the compact into compliance with Article IX; eliminate taxpayers having to pay any amount of money to the CSKT; and that all claims of off-reservation water rights be removed from the compact.

Since January, the commission has sent three letters to the state about the compact. The first indicated support for the water compact process, and was followed up 10 months later by an October letter, drafted by Commissioner Gary Krueger, outlining some of the concerns the commission hoped the compact commission would keep in mind, such as ensuring Flathead County’s residential, commercial, and municipal water rights would be protected.

A public hearing had been scheduled before the October letter was sent, but it was canceled.

New dynamics on the commission came to light during the Jan. 8 hearing, when Commissioner Gary Krueger questioned the origin of Mitchell’s letter.

Krueger said the letter makes legal claims about the compact and the state Constitution, and asked if Mitchell had the Flathead County Attorney’s Office review the claims, to which Mitchell replied he hadn’t, but “several” attorneys had seen the letter.

Krueger responded that the county attorney’s office is “the legal advisor for this board of commissioners,” and said that if the letter was “reviewed by another attorney, I believe the county should pay for it.”

He continued that when reviewing the letter, the document included information that the last person to modify it was “Duncan.”

“I believe there is some questions of who is actually the owner of this letter,” Krueger said.

After it was determined that the county attorney’s office had reviewed the first two letters the commission sent about the compact and had not seen a draft of the Jan. 8 letter, Mitchell said it was written through a collaborative effort of “five to six people I have respect for.”

“It is a group of people who care about Flathead citizens,” Mitchell said.

He then said there were probably eight people who oversaw the letter’s creation, and that it is an opinion letter from a group who cares about Flathead County citizens, “who I respect.”

Krueger said he would not support the letter because it is someone else’s work.

“I don’t believe it’s a product of Flathead County,” Krueger said. “It’s currently a product of Duncan.”

Despite Krueger’s objections, Mitchell moved to approve the letter, as well as officially rescind both previous letters the commission sent on the compact.

Commissioner Pam Holmquist seconded the motion, but Krueger quickly contested it, saying the public had not been notified that such an action was going to take place.

Mitchell said he believed he had the right to rescind the previous letters, but deputy county attorney Tara Fugina said such rescission wasn’t valid, because the letters were the work of a previous commission.

“I don’t believe those former letters ever go away,” Fugina said.

Holmquist also said rescinding the letters wouldn’t give the public who supported the letters a chance to speak, and pulled her support for the motion.

Mitchell then made a motion to amend the Jan. 8 letter to have language at the end, noting that “this letter supersedes the previous two letters, dated Jan. 3, 2014 and Oct. 22, 2014.”

Krueger said approving the letter should only happen under the condition that it would be sent after the county received an invoice and purchasing paperwork from its writers and the attorneys who reviewed it, which Mitchell vehemently opposed, saying he never asked for or was charged fees during the letter’s creation.

To that point, Krueger said that if Mitchell is using outside professional services while performing county business, that it’s a code of ethics violation.

Neither Mitchell nor Holmquist responded, and then brought the letter to a vote, which passed 2-1, with Krueger opposed.

The commission also discussed its individual members’ conversations about the letter with Montana Attorney General Tim Fox, who asked the board not to send a letter of opposition until they had fully digested the latest version of the compact, which was released on Jan. 7.

Mitchell said he had read what he could of the newest compact, but said many of his concerns still stand, and that the latest document doesn’t include enough information because it refers to other documents that aren’t part of the packet.

“We have part of the new document, part,” Mitchell said. “This is a horrible document to send out when it’s not complete.”

He said the compact commission had a year to come up with a new document, and with meetings on the revised compact scheduled for Ronan on Jan. 9 and Kalispell on Jan. 10, it is “unbelievable baloney” to expect the opinions on it with only 48 hours of time to read and comprehend it.

The Jan. 10 public meeting in Kalispell will take place at the Hilton Garden Inn at 9 a.m. For more information on the Montana Reserved Water Rights Compact Commission and its upcoming events, visit www.dnrc.mt.gov/rwrcc/Compacts/CSKT.

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