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Same song, Seventh verse

irrigationline“The bill will ratify a settlement quantifying the water rights of the Tribe and providing for their development in a manner that avoids harm to their neighbors It provides Federal funds necessary for water supply facilities and Tribal economic development, and defines the Federal role in implementing the settlement. This Settlement bill has the full support of the Tribe, the State of Montana, the Administration and the water users who farm and ranch on streams shared with the Reservation. The bill will effectuate a settlement that is a textbook example of how State, Tribal, and Federal governments can work together to resolve differences in a way that meets the concerns of all. It is also a settlement that reflects the effectiveness of Tribal and non-Tribal water users in working together in good will and good faith and with respect for each other’s needs and concerns.”

Sound familiar? This is a quote from The Honorable Rick Hill in the Congressional Record for Feb. 23, 1999 on introduction of the Chippewa Cree Tribe Reserved Water Rights Settlement Act.

Upon introduction of the Rocky Boy Settlement and Compact in the Senate in 1999, Conrad Burns announced the Congressional findings:

By reaching an out of court settlement, the parties will – once this package is implemented – go to the state water court and ask that all pending litigation involving claims by the Tribe, and by the United States on behalf of the Tribe, be dropped. The quantification of the Tribe’s water right will also clearly benefit upstream and downstream users of water in the effected drainage, including the Big Sandy and Beaver Creek as well as the Milk River. These other users will be able to plan for their future because they will know precisely how much water the Chippewa Cree Tribe is entitled to.

Then Governor Marc Racicot praised the Rocky Boy Compact saying:

The settlement of reserved water rights claims within the State of Montana is of utmost importance to the State… The Rocky Boy’s Compact provides for the development of much needed water resources on the Reservation, while at the same time protecting existing water development, adjacent to, and downstream from the Reservation. The federal funding for development will help alleviate some of the very dire needs of Montana citizens who are Tribal members living on the Reservation.

This week in a opinion piece published in several Montana newspapers, former Governor Racicot again reiterated his support for negotiated settlement as the best way to resolve tribal reserved water rights issues including the Confederated Salish and Kootenai Tribes Water Compact.

As a former governor and attorney general, I know that the process of settling tribal water rights is difficult and challenging. But, I also have no doubt that failing to do so will not only be exponentially more costly for Montana taxpayers and the tribes. It will also continue to be a source of stress and strain to our communities and relationships as well. I strongly and respectfully encourage our legislators to approve the water compact between the Confederated Salish and Kootenai Tribes and the state of Montana.

The CSKT Compact is the last of seven water rights settlements for Indian tribes in Montana to be negotiated between the Tribes, the State and the Federal Government. All of those agreements provided state and federal funds to improve water delivery infrastructure on the reservations. All of the agreements involved, to some extent, off-reservation and downstream water. Since the CSKT Reservation contains, by far the most water of any Montana reservation the current agreement may be a bit further reaching, but it is also, by far, the best deal for the State of Montana, the Federal Government and for the CSKT. Failure of this final negotiated agreement due to bigotry and fear will certainly be “exponentially more costly for Montana taxpayers and the tribes.”

Ad Nauseam 21

agenda21Thursday is Transmittal Day in the Montana Legislature. All non-appropriation bills must be transmitted by each house to the other in three days.

What important, last-minute bills are your legislators busy tidying up this week? How about the “Restore the Foundation of Montana’s Heritage of Individual Liberty, Privacy, and Property Rights Act” (HB583)?  This important legislation has been a silly part of each legislative session for the past decade and has gone exactly nowhere.

Yes, this is the traditional anti-agenda 21 bill that passed the House Judiciary Committee today on an 11-10 vote and now goes on to clog the workings of the entire Legislature. Agenda 21, if you don’t know by now, is a non-binding UN resolution signed by President George H.W. Bush and the leaders of 177 other countries representing 98% of the world population in 1992. The simple Agenda 21 planning document has no funding, is not legally binding on a single person on the planet and seeks only to “improve living standards, and manage the planet’s natural resources in an efficient manner.”

And yet, somehow over the last two decades this simple statement of principles has managed to become a Pavlovian bell used to induce a drooling fit in a small group of right-wing nutcases who believe it to be the root of all evil and a plan for a global Fascist dictatorship (what isn’t?). This, of course brings us to the Montana Legislature that manages to put this drivel on the agenda in each and every biennium. Rather than work on actual problems, which evidently aren’t really that important, or consider other serious nonsense, it seems that your representatives would much rather spend their valuable time and your valuable tax money foaming at the mouth over nonexistent conspiracies.

Absolute Jurisdiction and Control of the Congress

Montana: Brought to you by Koch Industries

Montana: Brought to you by Koch Industries

That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States;   Enabling Act of 1889 creating the states of North Dakota, South Dakota, Montana and Washington

In order to “extinguish” federal ownership of public lands in Montana, every hunter, angler, hiker, mountain biker, logger, birdwatcher and tourist in these United States who enjoys spending long summer days in Montana’s wild places would have to agree that the Montana Legislature, over which they have no control, would do a better job of managing their recreational lands than the federal government and they would have to let their elected representatives know that they are okay with more logging, mining and pollution of their favorite places. IMG_2593.JPG

These public lands don’t belong only to Montana politicians. They belong to every citizen of the country. Senator Jennifer Fielder (R) of Thompson Falls has proposed more than seven bills in the Montana Legislature to facilitate transfer of these lands to her and her cronies, Americans For Prosperity, ALEC, the Koch Brothers, big oil and mining companies. No matter how much these folks would prefer to have our public treasures in private hands, it ain’t going to happen. We already tried giving control of our natural resources to the Ananconda Copper Company  and that didn’t work out so well. Let’s quit spending our limited tax money and the valuable resources of the Montana Legislature to fiddle with bills that don’t have a prayer of passing through Congress and work on some real-world legislation that can improve the lives of real Montanans.

Stop the insanity!


Montana Legislature continues work on imaginary problems

Senator Jana Taylor (R)-Dayton has introduced SB199, a law to “Prohibit the application of foreign law in state courts.” If you weren’t aware that this was a huge problem in Montana, neither is Taylor. “In all of the cases she was aware of, Taylor said, higher courts had overturned rulings that sided with Sharia law. None of these cases have been in Montana, but Taylor wants to be certain the state’s citizens will be protected…”

The law is actually based on boilerplate legislation written by extremely conservative, racist Arizona lawyer David Yerushalmi founder of Society of Americans for National Existence (SANE). In their mission statement, SANE claims that “America was the handiwork of faithful Christians, mostly men, and almost entirely white.” The bill was originally written to ban Sharia Law, but that didn’t pass constitutional muster, so it was rewritten in the guise of banning all foreign law.

In his screed entitled The Shariah Threat to America Yerushalmi noted that:

our progressive elites, who control the educational system and mainstream media, reject national existence. These progressives despise and seek to destroy any vestige of national sovereignty by embracing a transnationalism that would render national sovereignty an anachronism in the face of world governmental bodies to which we should all bow, Obama-like, such as the U.N. or the International Court of Justice in the Hague.

Is this important legislation that needs to take up the valuable time of our Montana legislators? Evidently not, even Yerushalmi wrote that, “The purpose was heuristic — to get people asking this question, ‘What is Shariah?’”  To encourage people to hate. I doubt you would find many Montanans who have any understanding of Sharia Law, other than that it is somehow connected to the evil religion of Islam and brown people and therefore needs to be on everyone’s hate list.

There’s a conflation between the idea of Islam being a universalist, proselytizing religion and reducing it to a totalitarian movement,” said Mohammad Fadel, an associate professor specializing in Islamic law at the University of Toronto. “All good propaganda is based on half-truths.”

Smacking of popular Agenda 21 paranoia, Taylor “added that the imposition of global laws could also pose a similar threat, referring to the United Nations as a potential source of legal problems in Montana courts.” The entire purpose of SB199 is to toss red meat to the far-right haters and promote the idea that somehow anyone who looks, speaks, or acts differently than me is inherently evil. This bill serves no purpose other than to give racists and bigots a place to hang their hats while exclaiming their allegiance to their own God-given interpretation of the Constitution. Surely our legislators can find better ways to spend their time.

County Conniving Concerning the CSKT Compact

Irrigation-Canal-Jocko-DistrictSo, let’s talk about the Confederated Salish and Kootenai Tribes Water Compact. This session of the Montana Legislature will take up ratification of the Compact. The last session failed to ratify the negotiated settlement and extended the term of the Reserved Water Rights Compact Commission (RWCC) to make a few changes to the agreement.

Montana, the CSKT and the Federal Government have been negotiating this legal settlement for more than 20 years to quantify the CSKT reserved water rights. The Commission successfully negotiated 17 other agreements for federally reserved water rights including six water compacts with Indian tribes within the state. Reserved water rights are legally created with the creation of any federal reserve, such as an Indian reservation, national forest, national wildlife refuge, national monument, etc. There are two ways to quantify these reserved water rights, through costly and time-consuming court actions, or through negotiated agreements between the parties. In 1979, the State of Montana chose to create the RWCC to negotiate for the state all reserved water rights claims. The negotiated agreements settle for all time legitimate and legal water rights claims. All of these claims have been successfully negotiated with little or no opposition.

This is the last chance we have to reach an equitable negotiated agreement. Under state law, if this Compact is not ratified prior to June 30, 2015, the Tribes have no alternative but to attempt to quantify their legal water rights through the court system. This solution will cost water users across Montana millions of dollars defending their legitimate water rights and will take decades to reach a conclusion. The Tribes will likely gain many more, and stricter rights to Montana water through lawsuits, but would prefer the simpler and cheaper negotiated agreement they have spent many years to reach.

There have been many letters in the local press supporting and objecting to the ratification of the CSKT Compact. Most of the objections offer very little, if any, legal challenge to the Compact, but rather offer claims that seem to be based in biased opinion. The Flathead County Commission recently sent a letter to Governor Bullock objecting to the Compact. The letter was mostly written by Commissioner Phil Mitchell with the help of a supposedly anonymous lawyer. The letter was approved and sent by two of the commissioners with no public input. The commission letter makes virtually no sense and offers insubstantial arguments against the agreement. This week, the Governor responded with a memorandum from his legal staff including a point-by-point refutation of the letter from the County Commission. Mitchell, who was the primary architect behind the commission’s letter to the state, told the Beacon that though he hadn’t yet read the governor’s letter, he was going to stand by his opinions about the compact.”

In his response, the Governor told the County Commission that “based on my engagement with this issue over the course of the last two years – that many of your concerns are rooted in significant misunderstandings about the Compact. As the memorandum makes clear, the Compact protects the homes, businesses, and communities of Flathead County.” His reply is a lot more polite than I could have been in response to their delirious comments, but obviously not polite enough to sway crazy people.

In a news story this morning (01/27) on the Governor’s reaction, Mitchell said the HE is drafting another letter and that HE “will reiterate the commissioners continued opposition to the compact as it’s currently written.” This begins to sound more like a personal tiff between Phil Mitchell with his small cadre of crackpot stealth advisors and the Governor, and less and less like legitimate county business. Will this new letter get a public airing and public comment prior to being sent to the Governor’s office? Is Phil Mitchell willing to make changes to his response based on actual facts that have not been many times refuted? Will Mitchell reveal the names of the people who are helping to write his response? Will the county be billed for legal advice silently received by the Commission?

I, for one, personally resent that our elected county officials continue to misrepresent the opinion of the people of Flathead County in order to further their own personal bias. Mitchell is using intentional misinformation and falsehoods to support a position that does not represent the best interests, or opinion of most of the people who pay his salary. And on top of that, his position could cost his constituents a considerable amount in unwarranted legal costs.


Yellowstone Pipeline Breach, Redux


We don’t yet know the full extent of the latest pipeline breach that spilled thousands of gallons of crude oil into the Yellowstone River. The Bridger Pipeline Company is reporting that up to 50,000 gallons of oil spilled into the river. That sounds vaguely like the initial reports of the Exxon spill of 2011. Initial estimates in 2011 stated that 42,000 gallons had spilled. The actual final numbers came in at near 65,000 gallons, or half again the original estimate. Again, as in 2011, officials are saying“We think it was caught pretty quick, and it was shut down,”. Bridger spokesman Bill Salvin says that “Oil has been seen in the river in spots 15 and 25 miles downstream from Glendive. Some of the oil is trapped under ice.”

We don’t yet know the cause of the pipeline breach, although ice conditions on the Yellowstone River are a likely culprit. Federal rules require hazardous pipelines to be buried only four feet below the streambed, much less than likely ice, or high flow scour depths for the Yellowstone. The Silvertip pipeline, from the 2011 spill, was buried only five feet below the river and river scour uncovered and breached that line. Bridger Pipeline Co. said the pipeline was last inspected in 2012 and was “at least” eight feet below the river bed much like reports from the Silvertip pipeline in 2011.


This leads to my concern about the proposed Keystone XL pipeline. Both the lines breached on the Yellowstone River were older 12-inch pipelines. The Keystone XL will be a 36-inch line. Any breach in the Keystone will make these recent spills seem like a drop in the bucket. The Keystone line will cross both the Missouri and Yellowstone Rivers on a route very similar to the route of the Poplar pipeline. Keystone would make 1,904 stream crossings in the U.S. and 389 in Montana. The Keystone XL pipe would carry toxic tar sands oil from Northern Canada. Tar sands oil is much harder to clean up in an aquatic environment than the light crude from the Bakken. Tar sands oil does not float on the surface, but will sink to the bottom of the river making it much harder to even find, let alone clean up.

The Keystone XL will, presumably, be bound by the same federal rules for stream crossings and will be required to only be buried to a depth of four feet at most stream crossings. The Federal Department of Transportation has said that it has no plans to change the four-foot rule.TransCanada has said that it will bury the Keystone line ” 25 feet or more below the riverbed at major river crossings,  What does that mean for the 300+ Montana crossings that are not considered (by TransCanada) to be “major river crossings”? How will we know what the plans are? TransCanada has said it will not release its plan for spill response.  “This is a $5.5 billion piece of pipeline infrastructure. If we detail the exact location of our pipeline route and what we are doing to protect it along with our pump stations, it is not something we want to make available for the public because as you can appreciate not everyone is a supporter of our project.”

So, once again we wait. At the mercy of what the oil company chooses to tell the public. Exxon claims to have spent $135 million on cleanup of the 2011 spill, along with another couple of million in fines and yet the cleanup remains unfinished. The cost to Exxon of these failures and environmental disasters barely makes a dent in their tens of billions in profits. Our pipeline rules were not designed to deal with large pipes full of tar sands crude oil and yet, there are those who think we should proceed full speed ahead because the Keystone XL will create 35 permanent jobs (according to EPA) and the oil companies claim they can move the toxic oil safely. They haven’t done such a good job so far. “Of the 2.4 million gallons of oil, gasoline, propane and other hazardous liquids released [since 1993], less than 300,000 gallons was recovered.” A bit more delay and a little more information will likely prove to be beneficial to us all.


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