Resignation signals ongoing rift within joint board

Lake County irrigator Dick Erb resigned from the Flathead Joint Board of Control last month, the latest sign that deep divisions remain within the Flathead Irrigation Project’s governing body.

“I’ve been considering it quite a few months,” Erb said in an interview following his resignation. “It’s a frustration with the board that has been building for a long time.”

Erb’s announcement came after several tumultuous years for the 11-member board. It comprises representatives from the three districts served by the irrigation project — five from the Flathead Irrigation District and three each from the Mission and Jocko districts. The project supplies irrigation to approximately 110,000 acres of agricultural land.

Erb cited the board’s ongoing lawsuit against the state — alleging that the water rights compact for the Confederated Salish and Kootenai tribes was illegally ratified — as one of his reasons for quitting his post.

“They’re putting a lot of effort into opposing the compact, and my greatest criticism of the board is it’s done no effort whatsoever on the alternative to the compact, which is water court,” Erb said. “They’ve been spending money on litigation rather than building up the expertise for these water-right claims.”

The far-reaching water compact generated bitter controversy in the Mission Valley and surrounding area. It remains a focal point for the joint board while becoming one of the most fiercely debated issues last legislative session.

Johanna Clark, the joint board’s executive director who was a vocal opponent of the compact, disputed Erb’s claims. She said the board has spent several months vetting legal representatives to retain should the compact fail to achieve ratification at the federal level. The board recently selected Helena-based water specialist Tom Hughes during its February meeting following Erb’s resignation, she noted.

“This board has taken significant interest in the water-rights filings that the DNRC is currently adjudicating here in our valley, and are completely aware of the calendar dates for our response,” Clark said.

While the compact awaits action in Congress, the tribes are pursuing their own water-rights claims in the state’s water court. The compact would avoid the need for that process to play out, but the tribes were required to file their claims by a 2015 deadline in order to pursue them in case the compact fails.

Hughes’ selection was resisted by a majority of the Flathead district’s members that have tended to align with Erb, who also represented the Flathead district. While Clark noted that Hughes was hired at a fraction of the cost of Erb’s recommendation, the former Flathead board member said he feels the larger issue is the cost of the board’s ongoing litigation projects.

“The problem here is the litigation has resulted in major expenditures and also in no successes,” Erb said. “... I feel at times that I am in a litigation hornet’s nest. I just don’t want to be caught up in any of those myself.”

For 2016 and 2017, those legal expenses have amounted to the lion’s share of the joint board’s roughly $550,000 annual budget. Last year, those costs included an ongoing lawsuit to retain access to a low-cost block of power for the irrigation project and legal challenges to the water compact, the 2016 irrigation-district elections and the BIA’s continued management of the irrigation project.

Clark pointed out that the compact litigation is a small portion of the overall lawyers’ fees. And fighting for the correct outcome in local elections or a low-cost block of power directly benefit the board’s constituents, she said.

“They’re trying to protect the costs to the rancher, to the farm, for him trying to get that water delivered,” Clark said.

While the board’s legal expenses alone exceeded the 2016 budget by more than $40,000, Clark defended the lawsuits as its primary purpose. The board is funded by $5-per-acre payments collected from irrigators served by the project.

“The board, as a governmental entity, has always been involved in some type of legalities,” she said. “That assessment is to be utilized to protect the legal rights of the irrigators, the landowners. That’s why [board members] are elected and put into office.”

In his resignation letter, Erb cited frustrations expressed by some irrigators in his district, who he said are under-represented within the joint board.

Irrigators in each district elect board members on a one-vote-per-irrigated-acre basis. They also make payments on a per-acre basis, meaning the Flathead district, containing about 80 percent of the irrigated land, contributes about 80 percent of the board’s annual budget. But its five members are outnumbered by the six combined representatives from the Jocko and Mission districts.

“Within the Flathead district, there have been many irrigators that were very unhappy, especially with how the joint board was reconstituted,” he said, referring to the board’s temporary dissolution three years ago.

In late 2013, board members representing the Jocko and Mission districts voted to pull out of the unified authority, prompting the Bureau of Indian Affairs to assume control over the irrigation project. Irrigators in the two districts subsequently replaced those board members with ones that reversed course and re-formed the joint board in 2014.

A group of irrigators are currently suing to have the board dissolved once more, alleging that its re-constitution was illegally carried out and lacked a proper vote. The case, brought by Mission Valley Irrigators United, is still awaiting a decision in Lake County District Court.

Erb said he has consciously avoided endorsing the Mission Valley United position, but echoed many of the concerns brought by the organization.

“It does reflect the broad view, I think, within the Flathead District, that they just don’t like the path this joint board is going down,” he said. But he added, “It’s not going to resolve anything, really. We’ll just have continued conflict among irrigators. What it will do is end some of the litigation that’s underway.”

Erb said he hopes the body is eventually restructured to reflect each district’s share of irrigated land. But he’s grown too frustrated with the actions of the other board members to continue trying to work within it.

In the meantime, the other four members of the Flathead district will appoint a replacement to serve the remaining year on Erb’s term.

Reporter Sam Wilson can be reached at 758-4407 or by email at swilson@dailyinterlake.com.