Plaintiffs defend challenge to dam sale

Plaintiffs in a lawsuit over the transfer of Kerr Dam to the Confederated Salish and Kootenai Tribes say they were dismayed that initial media coverage of their legal battle chose to focus on national security issues rather than their ongoing work to protect the public’s interest as it pertains to water rights and usage.

State Sen. Bob Keenan, R-Bigfork, former state Sen. Verdell Jackson, R-Kalispell, and Pointer Enterprises Inc., doing business as Pointer Scenic Cruises, sued the Federal Energy Regulatory Commission to block the Sept. 5 transfer of Kerr Dam to the tribes from NorthWestern Energy.

A federal judge rejected their request, and U.S. government attorneys now are asking a judge to dismiss the lawsuit.

All three plaintiffs intend to continue the legal battle. Although a request for a temporary restraining order for the transfer was denied, the request for a preliminary injunction now will be considered by the court.

“My primary concern is the people of Flathead and Lake counties aren’t thrown under the bus, and that’s what the transfer and contract with Kerr Dam does,” Keenan said. “I jumped on the bandwagon with Verdell to make sure the irrigators and those who didn’t support the water compact [aren’t] being punished for the lack of support.”

Keenan said he told New York attorney Lawrence Kogan, who had approached the plaintiffs about suing because of their intervenor status in earlier court proceedings, that he wanted the lawsuit to concentrate on local issues, with little focus on national security concerns.

Several pages of the 54-page complaint outline allegations that the Turkish government may be trying to promote Islam on reservations or pursue access to uranium deposits and water sources to produce yellowcake for use in nuclear bombs.

While Keenan said there’s no question there has been some outreach by the Turkish government to American tribes, “this lawsuit wasn’t the proper place to bring all that up.”

Keenan said that except for one negative email from an American Indian from Browning, most of the public reaction over the lawsuit came from colleagues who good-naturedly asked him: “What’s this about Turkey?”

“I’m going to stand strong with Verdell,” Keenan said, adding that there are other citizens in Lake County who want to join the lawsuit.

Jackson said he, too, was miffed about an Associated Press article that focused almost entirely on the national security issue. He has been a vocal opponent of both the water compact between the state and tribes and the Kerr Dam transfer.

There are many issues that haven’t been fully considered in the tribal takeover of the dam, he said, including taxation, electric rates, water irrigation deliveries, water-rights management and integrated power and agricultural operations, discrimination and failure of the tribes to demonstrate management expertise.

The lawsuit alleges the Federal Energy Regulatory Commission should conduct hearings on the tribes’ ability to safely operate the dam, now known as Salish Kootenai Dam.

A tribal entity called Energy Keepers Inc. paid $18.2 million  to purchase the dam and operate it. Jackson said there is “no indication they’ll do anything by [federal] policy.

“If you read the Energy Keepers charter, they’ll restrict hiring to tribal members,” Jackson pointed out. “What worries me is they may not be hiring the most qualified people for the job.”

Jackson said he’s gotten a range of responses from the public over his involvement in the  lawsuit.

“Most call me a racist and being against the tribe. Other people don’t really understand the issue at all but thanked me for standing up for them,” he said. “They know I have their issues at heart and know I’m working for them.”

Bill Myers of Bigfork, who operates Pointer Scenic Cruises, said he has opposed the transfer of the dam to the tribes for 15 to 20 years, sending letters to the Federal Energy Regulatory Commission in the 1990s and again in the 2000s.

He believes dozens of amendments made to the 1985 original dam license, such as lowering the level of Flathead Lake in drought conditions, have negatively affected the business economy.

One of the claims of the lawsuit is that there has been a violation of the Fifth Amendment’s Equal Protection Clause. The tribes’ own bylaws “very clearly demonstrate a form of racial discrimination against persons that fail to meet some rather explicit blood line requirements,” the complaint states, referring to a requirement that to be a tribal member one must have one-quarter or more Salish or Kootenai blood or both and be born to a member of the confederated tribes.

“It should have been very clear to FERC this is an issue that violates the Civil Rights Act and amendments of the Constitution, clearly giving control of a federally licensed dam to a group based on one-quarter lineage,” Myers said.

He maintains the tribes aren’t being held to the same strict standard of scrutiny as other utility owners.

“I have a big problem with that, a so-called sovereign nation in control of a dam that is a Class 3 security issue,” Myers said. “In the water compact and the dam we [nontribal members] have no control. It’s discriminatory in terms of membership, ownership, control and employment.”

Myers further contended that earlier transfers of dam ownership were done among publicly traded entities such as Montana Power and PPL Montana, which “were held to strict scrutiny of rules, regulations and record-keeping. They’re open organizations where you can join to be a shareholder and have a voice.

“The tribe is the only shareholder of Energy Keepers. It’s owned and controlled solely by the tribe; it’s not being held to the same level of accountability.”

Myers agreed with Jackson and Keenan that the national security portion of the lawsuit has overshadowed several other claims.

“I’m also disappointed with the emphasis on Turkey in the Associated Press article,” Myers said. “There are national security issues; it’s one of many different arguments made, but AP went hysterical on the one deal, to the detriment of us all.”

Kogan said he got involved in bringing the lawsuit at the request of numerous residents of the Flathead Valley and decided to pursue it because of what he sees as “a large number of injustices.”

Kogan wrote to the Daily Inter Lake following the publication of the Associated Press story by Matt Volz, defending the inclusion of the national security claims in the lawsuit and pointing out the Republic of Turkey’s “extensive successful lobbying of the tribal leasing law and its ongoing ‘business opportunity’ outreach activities on specific Native American reservations, including the Flathead Indian Reservation.”

The crux of the lawsuit, Kogan stressed, is the ongoing failure of the Federal Energy Regulatory Commission, the Department of Interior, Bureau of Indian Affairs and Fish and Wildlife Service to comply with the provisions of the Federal Power Act and Administrative Procedure Act that provide for public hearings and adequate public comments.

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