County tables irrigation resolution following public meeting
When the Lake County Commissioners held a public meeting last Monday regarding collection of irrigation fees, only one thing was certain: Confusion and controversy continue to muddy matters surrounding the Flathead Indian Irrigation Project.
Commissioners sought public comment on a Resolution of Intent to cease billing, collecting and distributing fees or assessments related to the project, beginning in tax year 2022. Currently the county collects operation and management fees assessed by the Bureau of Indian Affairs, as well as administrative fees for the Flathead and combined Mission and Jocko irrigation districts.
Commissioner Gale Decker opened the meeting expressing his frustration about the lack of legal guidance from the state’s attorney general about how to proceed under the Montana Water Rights Protection Act (MWRPA) signed into law last year.
Commissioner Bill Barron noted that letters have been sent and phone calls made to no avail. “The only time Lake County gets noticed is if we sue somebody or do a resolution that nobody likes, then we get attention,” he said. “That’s part of what this is about for me and that’s why it’s stretched out to 2022, to give us time to find out what is legal.”
Although several irrigators and two attorneys attended the meeting, consensus was in short supply.
The majority of irrigators suggested the move was, at best, premature, especially since the Secretary of Interior hasn’t signed off on the act yet. There was also dissention about whether MWRPA effectively dissolves the irrigation districts, or even if the districts are currently legal.
“The county has no obligation to collect fees until there’s a deal and because there ain’t one we’re on thin ice,” said Wally Congdon, the county’s chief deputy attorney for civil matters. He argued that the contracts that give the irrigation districts legal standing expired two years ago.
“We believe the legal analysis is a little off – particularly with regard to establishment of each of the irrigation districts,” said Cassie Dellwo, an attorney for Five Valleys Law, which provides legal counsel to the Flathead Irrigation District.
She contends that MWRPA doesn’t dissolve the districts. “In fact, it reinforces them because it states that irrigation districts may enter into a cooperative management entity with the tribes.”
She also maintains that as long as the districts haven’t gone through a formal dissolution, “they’re still a living entity that has to be represented and that you guys have to work with as county commissioners. You have that duty and until some other process is in place, you can’t relinquish that duty.”
Susan Lake was concerned that if the county stopped collecting administrative fees, irrigation districts would lose “the only little voice we have left if we don’t think things are fair or done right. When there’s no money there’s no voice – across the whole reservation.”
The sprawling irrigation project was authorized by Congress in 1904 to serve the Flathead Reservation and its scope expanded in 1908 to serve non-Indian irrigators as well. According to Lake, the irrigation districts, which were grandfathered in as state entities in 1926, “never owned water, never delivered water, never maintained project infrastructure.” Instead, those duties have fallen to the BIA and Bureau of Reclamation, while the districts serve as an important interface between farmers, ranchers and water managers.
“I don’t believe in your interpretation of law that says it changed everything,” Lake added. “Our understanding … is it doesn’t negate districts.”
Three commissioners from the Flathead Irrigation District spoke of feeling “blindsided” by the commissioners’ Resolution of Intent.
Decker countered that his office “started raising issues about this a year and a half ago, before it ever got to the signature stage.” He said the county commissioners had reached out to the Secretary of Interior, the state attorney general and the BIA. “We’ve got zero, nothing in return,” he said. “Now, because we’re putting out a course of action, all of a sudden we’re the bad guys.”
“In the interest of dialogue, slow down,” suggested David Lake, a commissioner with the Flathead Irrigation District. “There’s no rush right now.”
He added that his district is working with the Confederated Salish and Kootenai Tribes to develop a cooperative management entity that would address fee collection. “The tribes are nervous about this, the irrigators are nervous,” he said. “It’s so easy to go down rabbit trails. But we’re trying to move forward to work with the tribes, we really are.”
A suggestion from Gale Decker that commissioners could collect fees but hold off on dispersing them until the issue is resolved drew a sharp response from Susan Lake.
“If we don’t pay the BIA every irrigator in Lake County would not get their water,” she said. “That would be a stupid game to play here.”
Paul Guenzler, a commissioner with the Flathead Irrigation District, acknowledged that fee collection “is a gray area. But look at the value to Lake County that’s at risk if this thing get’s pushed too far.”
“People can’t afford to lose a crop, Mother Nature does enough of that,” he added. “We don’t need bickering and battling to make that happen – we can’t afford it.”
The commissioners, after quizzing Lake County treasurer Robin Vert-Rubel on how long it takes her staff to add irrigation fees to tax assessments, voted unanimously to table the Resolution of Intent until early next year.
Barron said the BIA director had met with the commissioners for an hour earlier in the day. “We should have good idea by January what’s going to happen.”
As the meeting closed, Decker wryly noted that controversies surrounding management of the irrigation project are nothing new in Lake County. “I have a letter my dad wrote from 1944 about the irrigation project,” he said. “I take it out and read it every once in a while.”