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Irrigators to pursue project turnover in dual appeal, negotiation process

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RONAN – The Flathead Joint Board of Control will appeal a federal lawsuit to the 9th Circuit Court of Appeals in an effort to regain local control of the Flathead Indian Irrigation Project. 

The board’s attorneys said Aug. 25 that they will also try to work out an agreement outside of the courtroom with the Department of the Interior to plan for future management of the project, which irrigates 127,000 acres in Lake, Sanders, and Missoula County. 

In an Aug. 19 ruling, Federal District Judge Dana Christensen firmly turned down the irrigation board’s claims that the project should be turned over to local control. 

“Under no set of facts would plaintiffs ever be entitled to the requested declaratory relief,” Christensen wrote. “The court has no authority to order the formation of an operation and management entity that contravenes the will of the Secretary (of the Interior).” 

Christensen said the basis of his judgment was in the 1908 Flathead Allotment Act, which included a provision for the turnover of the project. 

“Though plaintiffs contend that the Transfer Agreement is void because the CME became defunct when the FJBC dissolved, this makes no difference,” Christensen wrote. “ Through the 1908 Act, the Secretary reserved to itself the discretion to determine the form and organization of any entity that would operate and manage the Project. In agreeing to transfer operation and management of the Project to the CME under the Transfer Agreement, the BIA memorialized this reserved authority through every provision of the Transfer Agreement, including the emergency reassumption provision. Until such time as an acceptable form and organization for operation and management of the Project by the landowners could be established, turnover is not required.”

The construction debt for the irrigation project was paid off in 2004 and in 2010 the project was turned over to a Cooperative Management Entity of three tribal representatives and three irrigation board representatives. 

The Cooperative Management Entity fell apart in late 2013 as two of the three irrigation districts that make up the Flathead Joint Board of Control withdrew in a bout of political infighting about the proposed Confederated Salish and Kootenai Water Compact. 

In 2014, irrigation commissioners for the reconstituted Flathead Joint Board of Control proposed a new project management entity comprised of 13 members, the majority of which were non-tribal irrigators. Federal officials 

countered with a proposed board of four irrigation commissioners, four tribal members, and a Bureau of Indian Affairs Chairman. An agreement could not be reached, and some members of the Flathead Joint Board of Control asked that the Bureau of Indian Affairs resume management of the project for the 2014 irrigation season. The bureau has been in charge ever since and the irrigation districts filed suit for a turnover to local control in April 2014. 

“We obviously disagree,” attorney Bruce Fredrickson said, saying that the board intends to appeal the judge’s decision. 

“We are also looking forward at moving forward on an administrative level with the Secretary of the Interior,” Fredrickson said. “The reason for that are some of the comments made by Judge Christensen, that we don’t necessarily agree with but that we believe that we at this point should take into account. We have been consulting with a group at our request to help us put together a package for a proposal for turnover that would include a proposal for operations, maintenance.” 

Board member Dick Erb proposed that the board ask for an immediate six-month stay in any appeal that was filed to create pressure for meaningful negotiation to occur between the board and Secretary of the Interior, but that proposal died for lack of a second. 

Frederickson said he is unsure what the venue for negotiations might be. 

“What we anticipated Judge Christensen would probably do was order some form of negotiation between the department (of the interior) and the joint board,” Frederickson said. “Part of that, we anticipated, would possibly be the appointment of a special master to help facilitate those negotiations. Obviously, we are not going to do that through the court system at this point so we would propose that (we negotiate) through the department at the administrative level.” 

The offer to negotiate also might be ignored. 

“We hope we get somewhere with it,” Frederickson said. “I will tell you that we are not optimistic that they will do anything with that, but we don’t think it hurts us with our appeal.” 

 

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