County says no to water compact

Flathead County Commissioners Phil Mitchell and Pam Holmquist on Thursday voted to send a letter to state officials opposing the proposed tribal water rights compact.

Commissioner Gary Krueger voted against the letter, pointing out the County Attorney’s Office hadn’t reviewed the letter because the office never received a copy.

Montana Attorney General Tim Fox spoke with the commissioners individually by phone on Wednesday and sent a formal letter asking them to postpone their consideration of the letter until they had time to fully review the revised compact document that was released Wednesday night.

The commissioners disregarded Fox’s request.

The proposed water-rights compact would take steps to quantify the Confederated Salish and Kootenai Tribes’ water rights and obligate the state to spend $55 million to improve the Flathead Indian Irrigation Project. The compact is the result of more than 10 years of negotiations and must be ratified by the state, the tribes and the U.S. Congress.

Mitchell, who said he drafted the letter with help from a group of about eight people, said he questioned the attorney general about the 11th-hour timing of the revised draft of the water compact.

“I resent this [revised compact] was sent out 48 hours before these [public] meetings,” Mitchell said, referring to compact meetings today in Ronan, Saturday in Kalispell and Monday in Helena.

Mitchell said he had quickly looked at the revised compact but still found it to be “a horrible document” and “unbelievable baloney.”

Holmquist said she wanted to proceed with the letter because she wants state officials and legislators to know about what she sees as a sizable amount of opposition by Flathead County citizens to the proposed compact.

“I’ve been wanting a letter of non-support for months now,” she said.

Several people spoke against the compact during the commissioners’ public comment session Thursday.

The commissioners approved a letter in January 2014 in support of the water compact process, and in October 2014 a second letter was approved outlining the county’s priorities as negotiations continued. Holmquist voted against both earlier letters.

The letter approved on Thursday specifies that it supersedes the other two letters from Flathead County.

Mitchell wanted to add language to his letter saying the earlier letters would be rescinded, but Deputy County Attorney Tara Fugina cautioned him against that, saying the public had not been properly notified of the intent to rescind the earlier letters.

“Those letters were approved by previous commissioners,” Fugina said. “I don’t believe those former letters ever go away.”

Krueger stood firm in his assertion that the letter wasn’t properly vetted because it wasn’t reviewed by the county attorney, which by law is the legal adviser for the commission.

“We’re about to deliberate on a letter that hasn’t been reviewed by our county attorney offices,” Krueger said.

When Mitchell said he had several lawyers look at his proposed letter, Krueger said those lawyers should then be paid for their legal services.

Krueger further said his information indicated a local attorney named “Duncan” had made the most recent revisions to the letter, so it appeared the draft “is a product of Duncan [Scott].”

Mitchell said Scott was only one of about eight people who helped him draft the letter.

Krueger countered, saying the letter was “no longer anything Commissioner Mitchell is working on by his own [self].

“If Commissioner Mitchell has taken professional services” without the county paying for them, it’s a code of ethics violation, Krueger maintained.

Mitchell’s letter instructs copies to be sent to not only Gov. Steve Bullock and Attorney General Tim Fox, but also the entire Legislature, all other Montana county commissioners, members of the Montana Reserved Water Rights Commission, the Water Policy Interim Committee and John Tubbs, the director of the Montana Department of Natural Resources and Conservation.

Alluding to the people who helped Mitchell draft the letter, Krueger said “a small group of radicals got our county commissioners to mass-mail a bunch of crazy propaganda.”

Mitchell’s letter says the county has concerns that the proposed compact may not comply with the Montana Constitution, but Krueger said the compact is constitutional.

Krueger, a West Valley farmer, cited a legal review by Hertha Lund, an attorney representing Montana Water Stewards, a private, nonpartisan organization made up of farmers and ranchers on the Flathead Indian Reservation and their supporters. Lund contended that the tribal water compact is in “total alignment” with the state Constitution.

A critique by Melissa Hornbein, an attorney for the Montana Reserved Water Rights Compact Commission, asserts there is no “taking” of individual landowner water rights in the proposed compact, and that an independent legal review conducted by the Montana Legislature found the Unitary Administration and Management Ordinance for the compact “to be a valid and constitutional means to administer water rights on the reservation.”

Features editor Lynnette Hintze may be reached at 758-4421 or by email at lhintze@dailyinterlake.com.