RONAN — Prior to the regularly scheduled Flathead Reservation Water Management Board (FRWMB) meeting Thursday, the Board and Ethan Mace, the director of the Office of the Engineer in working meeting met with its legal counsel attorneys John Tietz and Hallee Frandsen of Browning, Kaleczyz, Berry and Hoven, P.C. (BKBH). They covered an array of non-action issues of concern and in need of guidance.
Open Board Meetings
The issue of open meetings was discussed by the Board and legal counsel attorneys Tietz and Frandsen.
The main issues were centered on when and for what reason the Board could close its meetings, and when and for what reason it could withhold its documents from public perusal.
Board Chair Clayton Matt said there are “essential guides” to follow that cover open and closed meetings.
As written in Article II, § 9 of the 1972 Constitution: No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure. In 1975 and 1977, the Montana Legislature passed amendments that further buttressed the public’s rights to open meeting participation and access open public records.
Matt said the three areas of concern for the essential guides were: general open meeting with action item decisions; non-action executive open meeting; and, closed meetings for personal reasons.
The Montana open meeting laws don’t apply to corporations, individuals or tribal nations however, they do to the FRWMB and the Office of the Engineer.
The FRWMB is comprised of two members each chosen by the Flathead Nation and Montana as well as one chosen by both, and a non-voting federal representative. Thus, the Board is required to follow Montana open meeting statutes and laws. A quandary could arise when a closed meeting is called for various reasons related to tribal concerns.
Attorney Tietz said the board would need to specifically articulate why a meeting would be closed based on tribal concerns. He said they could include religious or cultural privacy interests. Minutes would have to be maintained.
Tietz said that challenges could be made related to the closure and discissions made.
Matt said actions taken as a result of the closed meeting would be made in public.
The Board and legal counsel agreed to provide the former with a Cliff notes of sorts guide on the “how and why” of meeting closures.
Board member Teresa Wall-McDonald asked if public access to documents is related to the drafts or the final documents.
Mace, who previously worked for the Montana Department of Natural Resources and Conservation (DNRC), and was its staff hydrologist advisory representative to the Board along with CSKT hydrologist Seth Makepeace, said the DNRC makes its drafts and final documents available for public review via its website posts or by requests.
“The drafts are released so the public can inform themselves and make comments as it makes its way to the decision phase,” he said. “All documents of the Board should follow state sunshine laws and be open to the public. When the Board has a draft document [it should be available to the public]. That is [the DNRC and state] practice.”
Further, attorney Frandsen said virtual (email, texting or telephone) non-face-to-face Board conservations could be subject to open meeting laws. “They need to be available to the public not deleted,” she said.
“Any communications between the Board and staff needs to be retained, not necessarily published but available to the public,” Tietz said.
Matt said that Mace and the Office of the Engineer staff have to begin a discussion on how records are to be preserved. He added that he uses his private cell phone to text and talk with other Board members, and suggested that the Board be issued cell phones to be used specifically for such Board communications, and retention thereof.
Process for Legal Counsel
A concern was raised about the legal indemnity of the FRWMB and its chair from actions taken, and how it would retain legal counsel. Attorneys Tietz and Hallee Frandsen of BKBH said they would be the legal counsel based on a case-by-case basis. However, if a legal challenge was related to the Board’s legal counsel, outside legal counsel, could —depending on the challenge specifics — be hired.
Tietz wanted clarification on how it would interact with the Board and director of Office of the Engineer Mace.
Matt said the Board needs to keep abreast of all legal issues pertaining to the Board and Office of the Engineer.
“The Board should be involved in whatever legal issues goes to the legal team,” said Board Member Ken Pitt, adding that would ensure a joint appropriate decision would result. “The information should be shared with the Board or Chairman Matt.”
Mace responded that the Office of the Engineer already provides the Board with any and all information to the Board.
The Office of the Engineer has a $10,000 monthly budget, and wondered about the process would be for going over the limit in scenarios such as addressing legal issues.
Tietz advised the Board and Mace to put together a work flow so they could both be on the same page when it comes to legal issues, working with legal counsel and funds necessary for them. “We need clear guidance on how to work with the Board and Ethan,” he said.
Office of Engineer logo
The Board discussed the proposed contract between it and the artist whose logo submission was chosen among a dozen or so submissions.
Board member Roger Noble expressed concerns about the logo ownership portion of the draft contact and that it needs clarification or changes. Saying it appears the Board could not trade mark the logo and thus it would essentially remain the intellectual property of the artist.
He advocated for the outright ownership of the logo and a redrafting of the contract to reflect that.
“We’re here to perpetuity and we want the opportunity to own it,” Noble said.
Wall-McDonald concurred. “We need to move in the direction of total ownership control,” she said, adding that without total ownership there could be potential problems or disputes if the logo was modified or the contract indicated the artist retained intellectual ownership of logo design.
Ethan Mace, Office of the Engineer director, said there are considerations about some minor changes in the logo. That could be a potential conflict if the Board doesn’t have complete intellectual ownership.
The Board was in agreement that complete intellectual ownership.
Tietz, said the concerns expressed could be moot if the artist gives up intellectual ownership. As a consequence, the draft contract would be amended to express the Boards concerns.
• In the regular scheduled meeting, Mace informed the Board James Frakes has been hired for the position of water conservation specialist, and that he has begun the process of hiring a second water conservation specialist.
Mace also presented the Board with a draft Frequently Asked Questions (FAQ) about the Flathead Nation’s Federal Reserved Water Rights Compact settlement. He said it is aimed at clarifying some of the inaccurate information being disseminated. (See FAQ sidebar below).
Frequently Asked Questions
1. Is your office or the Board going to meter all of our wells?
Answer: No, we have no plans to meter most of the wells on the reservation. The exceptions to this rule include 1) wells used for subdivisions, 2) larger new wells that might adversely affect senior water users, and 3) wells that may be involved in a water right complaint, where adjacent water users have filed a complaint(s) and well metering can be used to help resolve the situation. We expect these situations to be limited.
2. Will your office be charging us for our water use?
Answer: No, beyond a one-time application fee for a new use, our office does not charge for the use of water in any way.
3. Is your office a Tribal office? Is your office a State office?
Answer: Our office is independent of the direct authority of both Tribal and State government, but is authorized by the laws of both governments. Our office is directed by the Flathead Water Management Board’s six members. Two voting members are appointed by Montana’s Governor, two voting members are appointed by the Tribal Council, a fifth voting member is selected by the other four, and a non-voting member is appointed by the federal government. Funding for our office and Board operations comes partially from application fees and equal/matching appropriations provided by both the Tribes and the State.
4. Will your office set the fees and delivery quotas for the Flathead Indian Irrigation Project (FIIP)?
Answer: No, fees and quotas for the FIIP are set by the FIIP operator, not our office.
5. Who needs authorization to drill a well and put water to use on the Reservation?
Answer: Everyone needs to get advanced authorization before drilling a new well for a new use, this includes Tribal and Non-Tribal members. If you have questions, we are happy to help.
6. What is the status of my pending or suspended state-based registration?
Answer: Back before 2013, when the provisions that govern registrations of all those pending water rights were written, no one contemplated how many new wells would be drilled between then and the eventual passage of the Compact in 2021. But rest assured, our staff is working closely with our State partners to get these important registrations of existing uses reviewed and moved forward. If your filing met the terms and conditions of the registration filing requirements, you will get your water right. In the meantime, if you need a copy or verification of your filing, our staff can get you pointed in the right direction.
7. I didn’t file a registration for my existing use, what do I do now?
Answer: At this time, we don’t have a process for addressing the needs of those who didn’t file registrations, but the Board and our office is exploring options that will help water users get compliant.
8. When will your office start accepting applications for water uses other than Domestic Allowances?
Answer: Our office continues to release new application forms for other water right types. We are actively maintaining an ongoing list of people interested in certain appropriation types, so that we can contact them once their application form of interest is finalized.
9. Does your office have jurisdiction over water right administration off the Flathead Reservation?
Answer: No, our office only has jurisdiction over water rights on the Reservation, DNRC retains jurisdiction everywhere else.
10. How do we contact you?
Answer: We typically staff our office from 9 to 5 Monday through Thursday. We encourage calling ahead and making an appointment for better service.
The Office of the Water Engineer is located at 400 SW Main St., Ronan. PO Box 37. Phone number (406) 201-2532/