Mission, Jocko Valley irrigation district issues have no bearing on FJBC litigation
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As commissioners in the Jocko Valley and Mission Irrigation Districts, we believe a response to Mr. Richard Erb’s Letter to the Editor in last week’s Valley Journal is in order. As Paul Harvey used to say, here’s “the rest of the story.”
It’s hard to understand what Mr. Erb’s point is in this letter as he begins by talking about the Flathead Joint Board of Control’s annual budget and the fact that it is tight. That’s a profound statement of the obvious. The FJBC Commissioners have budgeted funds for a court challenge of the Confederated Salish and Kootenai Tribes’ Compact whose legislative passage is being questioned in the 20th Judicial District. Then there is the litigation to require the BIA to turn over to “... the owners of the lands thereby irrigated ...” after repayment of the construction costs per the Flathead Allotment Act. This repayment was accomplished in 2004 and the Project remains in the BIA’s hands due to pro-compact shenanigans of 2013-2014 . Since the former Kerr Dam utilizes a water right appropriated for irrigation power production, the former Kerr Dam license required that a low cost block of power equivalent to 15,000 horsepower to be provided to the project as a “quid pro quo” for the use of that Project water right. The CSKT Compact proposed a reduction in the amount of power by approximately 70 percent and the FJBC has requested a hearing with the Federal Energy Regulatory Commission to determine the irrigators right to power and under what terms and conditions it should be made available to the irrigation project. Remember, the FJBC did not ask for any of this litigation. The FJBC has the right to defend these long held claims against the egregious assault on them by the State, the CSKT and US.
Next, Mr. Erb brings up the unrelated issue of the debt incurred when two Commissioners in the Mission District and two Commissioners from the Jocko Valley District, against the wishes of their constituents, sought to destroy the FJBC by a withdrawal from the joint operations agreement. This was all done so they could approve the Water Use Agreement in the 2013 CSKT Compact. A Writ of Prohibition brought by the Western Montana Water Users Association stopped any approval of the Water Use Agreement.
In approximately nine months, these commissioners ran up a legal bill of approximately $186,000. For this $186,000 the irrigators got illegal meetings, saw their Administration fees raised from $2.50/acre to $9/acre, and funded the hiring of a highly paid consultant whose sole task was to advise these commissioners on how to disrupt the respective District Boards. It caused the FJBC to disintegrate, negating the 2010 Project transfer contract resulting in the BIA taking over the Project again. For their part, the offending Mission District Commissioners were recalled from office by the irrigators of the Mission District in a historic grass roots recall election. In the Jocko District, one of the offending commissioners chose not to run for re-election. Both Districts reverted to a majority anti-compact Commissioners in subsequent elections and the FJBC was re-formed in May of 2014.
So Mr. Erb says, “ ... the current Jocko and Mission Boards are faced with a $94,738.92 legal bill left behind by the previous Jocko and Mission Boards” as a result of legal actions (the word “legal” used here is debatable) they took in 2013. “To rub salt into the budget wound, unless a compromise amount can be negotiated, it will be necessary for the two districts to spend even more money in arbitration.”
But Mr. Erb misses the point. It is in the best interest of the District Commissioners to seek arbitration to reduce the amount of this legal bill that was not incurred with the best interests of our constituents in mind. It has nothing to do with the FJBC budget and is strictly an issue to be resolved by the Mission and Jocko Valley Districts. As we have always done, the present Commissioners will do what is in the best interests of our constituents and that is to attempt to minimize that cost, a cost that will inevitably have to be assessed on all district lands for payment. We made a settlement offer which was rejected and we are now considering the options, one of which is arbitration estimated to cost about $15,000. We believe we can settle this for significantly less than $95,000. So what would Commissioner Erb have us do — pay the $95,000 to avoid further litigation costs? It should be noted that none of these costs will be borne by Commissioner Erb’s Flathead District as they were not a party to this issue and there is clear language in the FJBC bylaws that preclude the Flathead District from payment of any of this debt.
In summary, the FJBC did not ask for this Compact, turnover, or FERC litigation and its attendant expense. Mr. Erb seems to imply the majority of Commissioners on the FJBC have a cavalier attitude about litigation and nothing could be further from the truth. However, as a matter of statute (MCA 85), the Commissioners have the right to defend the valuable property rights of the Districts and its irrigators. This maybe be expensive but is a pittance when compared to the valuable rights we are trying to protect.
As a Commissioner in the Flathead District, Mr. Erb has a right, if not a duty, to speak his mind on the issue of FJBC litigation. The issues that he raises that are pertinent to the Mission and Jocko Valley Districts have no bearing on the FJBC litigation and are certainly not in the purview of Commissioner Erb. If he insists on discussing them, he should, at the very least, provide the pertinent facts in this matter.
