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1 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 1 of 29 Jon Metropoulos METROPOULOS LAW FIRM, PLLC One South Montana Helena, MT Telephone: (406) Facsimile: (406) jon@metropouloslaw.com Attorneys for FJBC and FID Dana L. Hupp Murry Warhank GOUGH, SHANAHAN, JOHNSON & WATERMAN, PLLP 33 South Last Chance Gulch P.O. Box 1715 Helena, MT Telephone: (406) Facsimile: (406) dlh@gsjw.com mw@gsjw.com Attorneys for FJBC IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION FLATHEAD JOINT BOARD OF CONTROL; FLATHEAD IRRIGATION DISTRICT, vs. Plaintiff, SARAH SALLY JEWELL, Secretary of the Department of Interior, STANLEY SPEAKS, Portland Area Director, Bureau of Indian Affairs, ERNEST T. BUD MORAN, ) ) ) ) ) ) ) ) ) ) ) ) ) Cause No. CV M-DLC PLAINTIFFS BRIEF IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER, EXPEDITED DISCOVERY, AND REQUEST FOR HEARING

2 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 2 of 29 Superintendent, Flathead Agency, Bureau of Indian Affairs, DEPARTMENT OF INTERIOR, and BUREAU OF INDIAN AFFAIRS, Defendants. ) ) ) ) ) ) ) 2

3 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 3 of 29 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii EXHIBIT LIST... v I. STATEMENT... 1 II. BACKGROUND... 3 III. FACTS CONCERNING BIA S IMPLEMENTATION OF NEW POLICIES VIOLATING WRITTEN POLICIES... 5 A. BIA s non-communication policy with the FJBC this season Makes it impossible for the FJBC to fulfill its federal and State statutory duties to represent irrigators and for the irrigators to maximize the efficient use of irrigation water... 5 B. BIA s non-delivery policy of non-quota water causes immediate and future irreparable harm to irrigators... 6 IV. ARGUMENT A. Notice Was Provided to Defendants... 8 B. Issue Presented... 8 C. Legal Standard... 8 D. The FJBC requests this emergency relief because the facts show this situation fully meets all these requirements, and emergency relief is appropriate and should be issued V. CONCLUSION... 2 CERTIFICATE OF COMPLIANCE...22 i

4 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 4 of 29 TABLE OF AUTHORITIES Cases Alliance for the Wild Rockies v. Cottrell 632 F.3d 1127, 1135 (9th Cir. 2011)... 9, 10 Alliance for the Wild Rockies v. Krueger F. Supp. 2d, 2014 WL at *3 (D. Mont. Aug. 6, 2014)... 9, 10, 11 Ariz. Dream Act Coalition v. Brewer F.3d, 2014 WL at *4 (9th Cir. July 7, 2014)... 9, 10 Atlanta School of Kayaking v. Douglasville-Douglas Co. Water & Sewer Auth., 981 F. Supp. 1469, 1472 (N.D. Ga. 1997)...15 Cent. Delta Water Agency v. U.S. 306 F.3d 938, (9th Cir. 2002)...11 Drakes Bay Oyster Co. v. Jewell 747 F.3d 1073, 1092 (9th Cir. 2014)...10 FDIC v. Garner 125 F.3d 1272, (9th Cir. 1997)...10 Hunt v. Wash. St. Apple Advert. Com. 432 U.S. 333, 97 S. Ct. 2434, 53 L.Ed.2d 383 (1977)...11 Jones v. H.S.B.C. (USA) 844 F. Supp. 2d 1099, 1100 (S.D. Cal. 2012)... 8, 9 Laub v. U.S. 342 F.3d 1080, 1086 (9th Cir. 2003)...13 Native Ecosytems Council v. Krueger 2014 WL at *1 (July 21, 2014)... 9, 10 ii

5 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 5 of 29 Cases (cont.) San Luis & Delta Mendota Water Auth. v. Salazar 638 F.3d 1163, (9th Cir. 2011)... 11, 14 San Luis & Delta-Mendota Water Auth. v. U.S. 672 F.3d 676, 701 (9th Cir. 2012)...13 Swigart v. Baker 229 U.S. 187, 197 (1913)...16 United States v. McIntire 101 F.2d 650, 652 (9th Cir. 1939)...16 Wash. Utils. & Transp. Comm n v. F.C.C 513 F.2d 1142, 1151 (9th Cir.1975)...11 Winter v. Nat. Resource Def. Council 555 U.S. 7, 20 (2008)... 9 Mont. Code Ann. Mont. Code Ann , 12 Mont. Code Ann Mont. Code Ann Mont. Code Ann Federal Regulations 25 C.F.R (2014)... 2 Statutes 35 Stat. 448, May 29, , Stat. 453, May 10, , 5 iii

6 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 6 of 29 Statutes (cont.) 25 U.S.C. 463(a) U.S.C U.S.C. 371 et seq U.S.C U.S.C Other Authorities Bureau of Indian Affairs Manual Part 50, Chapter 1 (1999)... 2, 3 Operation and Maintenance Guidelines, Flathead Indian Irrigation Project Flathead Agency (2008)... 1, 2, 7 iv

7 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 7 of 29 EXHIBIT LIST Exhibit A: Act of May 29, 1908, (35 Stat. 448) Exhibit B: Decl. Johanna Clark (Aug. 28, 2014) Exhibit C: Operation and Maintenance Guidelines, Flathead Indian Irrigation Project Flathead Agency (2008) Exhibit D: Bureau of Indian Affairs Manual, Part 50, Chapter 1 (1999) Exhibit E: Act of May 10, 1926, (44 Stat. 453) Exhibit F: Tables of Relevant Policies Provided for in the Bureau of Indian Affairs Operation and Maintenance Guidelines (generated by counsel) Exhibit G: Decl. Ed Everaert (Aug. 25, 2014) Exhibit H: Decl. Tim Orr (Aug. 18, 2014) Exhibit I: Decl. Jerry Laskody (Aug. 26, 2014) v

8 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 8 of 29 I. STATEMENT For the 2014 irrigation season, Defendant Bureau of Indian Affairs ( BIA ) took over the operation of the Flathead Irrigation and Power Project ( Project ) in January. It did so after rejecting a proposal by the Flathead Irrigation District ( FID ) to maintain local control through an entity compliant with Congress mandate that the management and operation of the Project shall pass to the owners of the lands irrigated thereby when the charges for the construction of the Project had been paid. Act of May 29, 1908, (35 Stat. 448), Ex. A. The entire cost of constructing the Project was repaid in Decl. Johanna Clark 5 (Aug. 28, 2014), Ex. B. Plaintiffs (collectively, the FJBC ) are local governmental entities that represent the fee land irrigators who pay almost the entire cost of operating the Project. The FID initiated this action contesting that refusal, among other things, on April 2, This motion for emergency relief goes only to BIA s unlawful actions in operating the Project for the 2014 season. 1 Pl s Amend. Compl. 21 (July 28, 2014). BIA is implementing new, unpublished policies in conflict with those in its Operation and Maintenance Guidelines ( Guidelines ) for the Project, Ex. C, 1 This motion seeks only to require BIA to operate the Project in accordance with its own requirements. This does not require any argument or decision concerning the ownership, priority, or nature of any water rights whatsoever by any party or person, and the FJBC seeks no such ruling. Water Rights in the basin are the subject of an ongoing state-wide adjudication in the Montana Water Court, and this matter and motion do not and are not intended to trench on those proceedings. 1

9 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 9 of 29 regarding (i) providing information to and consulting with the FJBC about water availability, predicted availability, operation and maintenance (O&M) plans, and Project operations, as it has done for decades; and (ii) implementation of its nonquota water policy and delivery of non-quota water in accordance with its longtime practice, applicable throughout the irrigation season through September 15. See Operation and Maintenance Guidelines, Flathead Indian Irrigation Project, Flathead Agency (2008), Ex. C. Specifically, BIA (i) refuses to provide information and consult with the FJBC, preventing it from fulfilling its federal and state statutory duties and its constituents from maximizing their efficient use of irrigation water; and (ii) is implementing a non-delivery policy regarding nonquota water, automatically reducing the amount of water available to irrigators for irrigation purposes. Under specific regulations, however, BIA is required to administer the Project in accordance with its Guidelines and other written policies. 25 C.F.R (2014). BIA s new policies conflict with its Guidelines, federal regulations, rules, and Project operational practice of numerous decades. As stated on the homepage of the BIA website for The Indian Affairs Manual ( IAM ), [c]ompliance with the Manual is mandatory for Indian Affairs employees. BIA, The Indian Affairs Man., (accessed Aug. 2

10 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 10 of 29 25, 2014). Similarly, the IAM Part 50, Chapter 1, requires the Officer-in-Charge of each Project to [m]eet regularly with water users to discuss proposed O&M assessment rates, water apportionments, and general operation and maintenance of the project. BIA, IAM, Pt. 50, Ch. 1, 1.5, H. (17) (1999), Ex. D. Most importantly, the IAM declares that specific operating instructions for each project take precedence over the more general handbooks cited therein. Id. at 1.4 C. Thus, the Project Guidelines are not only the applicable requirements, they are mandatory, pursuant to the BIA s own Manual. Yet, BIA is operating the Project under policies that conflict with its Guidelines. If not enjoined, BIA s new policies will cause imminent, irreparable harm to the FJBC and the landowners it represents. A prohibitory emergency temporary order preserving the status quo before the controversy arose should issue. II. BACKGROUND The Project, the largest in Montana, delivers water for irrigation to more than 109,000 acres of land owned in fee by the FJBC s irrigator-constituents, hereinafter referred to as landowners. Decl. Clark 5. It also delivers irrigation water to approximately 10,000 acres owned in trust by the United States for the Confederated Salish and Kootenai Tribes ( CSKT ) or individual Indians. 3

11 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 11 of 29 Landowners yield nearly $100 million in economic activity from irrigation each year. Through property taxes levied and collected by the Districts, fee landowners pay almost the entire cost of operating the Project each season, approximately $3 million. 2 Decl. Clark 5. Congress specifically required the formation of the Districts and empowered them to operate pursuant to state law to represent the interests of these landowners. See Act of May 10, 1926, 44 Stat. 453, , Ex. E. The FJBC is the central operating authority for the three Districts, Flathead, Mission, and Jocko Valley formed in response to Congress mandate. See Mont. Code Ann et seq. (2014) (outlining powers and responsibilities of joint boards of control). policies: The Guidelines require, among other things, implementation of two vital 1. Communication of information to the FJBC needed by irrigators to effectively manage their irrigation seasons and maximize their efficient use of irrigation water. See Table 1, Ex. F. 2. Continued implementation of the Project s decades-old non-quota water policy, which is essential to irrigators under the Project and necessary to prevent the waste of water that could be applied to beneficial use and is not required for fishery purposes. See Table 2, Ex. F. 2 Some O&M funds derive from trust lands. The local entity the FJBC proposed BIA invest with authority to operate the Project would be composed of a proportional amount of representatives of trust land as well as the fee landowners, represented by their irrigation districts. 4

12 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 12 of 29 See generally Ex. F Tables. III. FACTS CONCERNING BIA S IMPLEMENTATION OF NEW POLICIES VIOLATING WRITTEN POLICIES A. BIA s non-communication policy with the FJBC this season makes it impossible for the FJBC to fulfill its federal and State statutory duties to represent irrigators and for irrigators to maximize the efficient use of irrigation water. For decades, the Project operator has made monthly reports to the FJBC concerning essential information about Project operations. This requirement is explicitly called out as an item of special concern in BIA s Guidelines. See Table 1, Ex. F. The provision of this information to the FJBC and Districts is required for them to execute their duties to represent fee land irrigators in dealings regarding the Project, as required by Congress, Act of May 10, 1926, 44 Stat. 453, , Ex. E, and authorized by the Montana Legislature. See generally Mont. Code Ann (Joint Operations), (Operation of Districts), and (Taxes and Assessments). It is also necessary for irrigators to plan and execute a successful irrigation season, both in the particular year and in future years. Decl. Ed Everaert 9, 11, 13, 16 (Aug. 25, 2014), Ex. G. Without such information in a timely manner they cannot maximize their efficient use of irrigation water, depressing crop yields while also, in some cases, causing a waste of water. Id. at 11, 12, 13, 14. This information includes water availability, prediction of future availability, anticipated and established and 5

13 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 13 of 29 amended quota amounts, planned O&M work, and operational decisions, such as the delivery of non-quota water. Id. at 9, 10, 18. Notwithstanding the special importance of communication and consultation with the FJBC, and in violation of its long-standing practice to do so, BIA has not communicated or consulted with the FJBC at all this irrigation season. Decl. Clark, 11. This refusal encompasses both written communications and the failure to attend regular meetings of the FJBC and FID, of which Defendants received notice and were well aware. Id. at 13. B. BIA s non-delivery policy of non-quota water causes immediate and future irreparable harm to irrigators. Without any consultation with the FJBC or any communication on the subject whatsoever, the BIA has not implemented the non-quota water policy. Indeed, it is implementing a new, opposite policy of non-delivery. Sometime prior to June 3, 2014, defendant Moran communicated this decision to representatives of the CSKT, as reported in the June 3, 2014, Tribal Council minutes. See June 3, 2014, CSKT Tribal Council Minutes, attached to Everaert Decl. 3 3 This information was published in the minutes of the June 3 meeting in a nonpublic supplement to the June 26 Char-Koosta, a tribal newspaper that is released to the public. The supplement with the Tribal Council minutes, however, appears to be reserved only for tribal members. This information regarding the nonimplementation of the non-quota water policy was received by the FJBC through unofficial channels on July 30, almost two months after the assurance was made. 6

14 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 14 of 29 This violates many decades of practice in addition to BIA s own Guidelines and regulations. Table 2, Ex. F. The non-quota water policy provides that water above interim minimum instream flow fishery needs that either cannot be stored in project facilities or that is otherwise available for irrigation use will be made available for irrigation and not counted against an individual tract s quota, hence its name. Guidelines, p. vii, Ex. C. (The quota is an estimate of the quantity of irrigation water available for delivery by the Project for a particular year expressed as a number of acre-feet per acre, which is calculated by dividing the forecasted water supply by the number of acres under the Project. Guidelines, p. viii.) Implementing a new policy of not delivering non-quota water, therefore, potentially adversely affects all the irrigable acres under the Project and directly detracts from the amount of water available for irrigation use. Non-quota water and its application to irrigation affect both the current season of irrigation and crop yields and future seasons. Decl. Everaert 7, 8, 17, 19. First, this is so because it allows landowners, when delivered, perhaps a full or one and a half additional irrigations on their land, in addition to the amount they can get from the quota. Second, non-quota water delivered in the fall can be used to re-charge the land, allowing it to store some water and be prepared for a successful irrigation season the next year. Thus, the delivery of non-quota water 7

15 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 15 of 29 has cumulative effects; and its non-delivery has long-term, cumulative effects as well. IV. ARGUMENT A. Notice Was Provided to Defendants An attorney for Defendants, Mr. Nate Watson, received notice of this motion on Friday, August 15, as well as subsequent information on the issues. His telephone number is (303) B. Issue Presented Whether this Court should exercise its discretion and issue a temporary restraining order ( TRO ) prohibiting the change in the status quo BIA is causing by implementing its new, unpublished policies of not communicating with the FJBC and not delivering non-quota water? The issue presented by the merits of this motion is whether defendants may operate the Project, which landowners pay for and on which they are utterly dependent, in violation of its own applicable rules, regulations, guidelines, and decades of past practice, inevitably causing ongoing, irreparable harm to the FJBC and the landowners it represents? C. Legal Standard The primary purpose of granting a TRO is to preserve the status quo and prevent irreparable harm before a preliminary injunction hearing may be held. Jones v. H.S.B.C. (USA), 844 F. Supp. 2d 1099, 1100 (S.D. Cal. 2012). The 8

16 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 16 of 29 status quo a TRO preserves refers to the legally relevant relationship between the parties before the controversy arose. Ariz. Dream Act Coalition v. Brewer, F.3d, 2014 WL at *4 (9th Cir. July 7, 2014) (citations and emphasis omitted). The standard for issuing a TRO is similar to the standard for issuing a preliminary injunction. Jones, 844 F. Supp. 2d at As this Court recently explained in Native Ecosytems Council v. Krueger, 2014 WL at *1 (July 21, 2014) [a] preliminary injunction is an extraordinary remedy never awarded as of right. (quoting Winter v. Nat. Resource Def. Council, 555 U.S. 7, 20 (2008)). A petitioner seeking an injunction, whether it is an injunction pending an appeal or otherwise, must show that (1) it is likely to suffer irreparable harm absent a preliminary injunction, (2) that it is likely to succeed on the merits, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest. Native Ecosystems at *1 (quoting Winter at 20). A plaintiff seeking an injunction must satisfy all four Winter prongs. Alliance for the Wild Rockies v. Krueger, F. Supp. 2d, 2014 WL at *3 (D. Mont. Aug. 6, 2014) (citing Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). 4 4 The FJBC relies on Alliance for the Wild Rockies for the Court s explanation of general preliminary injunction standards, not its discussion of harm related to an Endangered Species Act claim. 9

17 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 17 of 29 Irreparable harm is traditionally defined as harm for which there is no adequate legal remedy, such as an award of damages. Ariz. Dream Act Coalition at *11. However, while the threat of such an injury must be likely it need not be certain to issue an injunction. FDIC v. Garner, 125 F.3d 1272, (9th Cir. 1997). Moreover, because intangible injuries generally lack an adequate legal remedy, intangible injuries [may] qualify as irreparable harm. Ariz. Dream Act Coalition at *11. Regarding the other three factors, as this Court said in Native Ecosystems v. Krueger, [o]nce the petitioner shows that irreparable harm is likely, the other factors are assessed on a sliding scale. Native Ecosystems at *1 (citing Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). For instance, if, after demonstrating likely irreparable harm, a petitioner also makes a strong showing on the public interest and equities prongs, then an injunction may issue so long as the petitioner raises serious questions going to the merits. Native Ecosystems at *1 (citing Alliance for the Wild Rockies, 632 F.3d at 1134). A petitioner in such cases is thus relieved of the requirement that it demonstrate that it is likely to succeed on the merits, and may succeed on the lesser serious questions standard. Id. When the Federal government is a party, the balance of equities and public interest factors may be merged. Id. (citing Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014); see also Alliance for the Wild 10

18 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 18 of 29 Rockies v. Krueger, 2014 WL at *4 ( As to likelihood of success on the merits, the long-entrenched but lesser serious questions standards remains viable after Winter. ). D. The FJBC requests this emergency relief because the facts show this situation fully meets all these requirements, and emergency relief is appropriate and should be issued. 1. The FJBC has standing to bring this motion and assert these claims. The FJBC has both associational standing and standing in its own right. Cent. Delta Water Agency v. U.S., 306 F.3d 938, (9th Cir. 2002) ( [a] public agency has standing to seek judicial review of governmental action that affects the performance of its duties... Washington Utilities & Transp. Comm n v. F.C.C., 513 F.2d 1142, 1151 (9th Cir.1975). Because the Central Delta and South Delta Water Agencies are charged by the State of California with protecting a dependable supply of high-quality water for the Delta areas concerned here, CAL. WATER CODE APPENDIX, , both agencies have standing to bring this action under the test established by the Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). ); see also San Luis & Delta Mendota Water Auth. v. Salazar, 638 F.3d 1163, (9th Cir. 2011). 11

19 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 19 of Irreparable Harm to FJBC. The FJBC depends on the BIA following its Guidelines regarding information in order to perform its tasks. Per Montana statute, the FJBC was formed in order to operate, manage, supervise, and maintain the operation of [the] district[s]. Mont. Code Ann A necessary part of operating the Districts is understanding the facts on the ground, both so the FJBC may carry out its governmental functions properly and so it may be responsible to its constituents. The BIA itself recognizes in its Guidelines that the FJBC is a key entity with which the BIA must consult and to which it must provide necessary information to properly run the Project. If the BIA ignores its Guidelines requiring it to provide this information and consultation, the FJBC cannot perform its duties to irrigators because it does not have the facts to properly inform them of likely impacts on irrigation or assess BIA s policy decisions. This harm is intangible and thus irreparable at law. No monetary award will be able to allow the FJBC to retrospectively change the way the operations were run. Even if harms to irrigators could be monetized, potential harm to the FJBC caused by its inability to fulfill its duties cannot. The relationships between individual commissioners and their constituents are also threatened when the commissioners are not privy to the vital information the BIA is withholding. Money cannot repair trust in a governmental body. 12

20 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 20 of 29 The BIA s refusal to apply its non-quota water policy also sidelines the FJBC. If the Board continues to be isolated from the decision making process, it is institutionally weakened. This political harm cannot be corrected with traditional legal remedies. The proper course is therefore to avoid the harm by requiring the BIA to follow its Guidelines. 3. Irreparable Harm to FJBC s constituent-landowners. Irrigators depend on the reliable and predictable delivery of water to make a living. The BIA s failures have deprived the irrigators of information and nonquota water, which will lower crop yield and have a marked effect on the bottom line. See generally Declarations of irrigators Tim Orr (Aug. 18, 2014), Ex. H, and Jerry Laskody (Aug. 26, 2014), Ex. I. The harms suffered by irrigators are irreparable because they cannot be accurately quantified across the broad spectrum of conditions and crops grown in the project. Moreover, some harm will take place in the future. Similarly, implementation of a non-communication policy with the FJBC will, with certainty, harm irrigators by depriving them of essential information and of representation by their duly elected representatives. See San Luis & Delta-Mendota Water Auth. v. U.S., 672 F.3d 676, 701 (9th Cir. 2012) ( [T]he loss of affordable irrigation water for... agricultural lands is an injury in fact. (quoting Laub v. U.S., 342 F.3d 1080, 1086 (9th Cir. 2003)). The Court has also recognized that the adverse consequences flowing from a reduction in water 13

21 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 21 of 29 delivery are concrete and particularized and actual or imminent. San Luis & Delta-Mendota Water Auth. at 701 (quoting San Luis & Delta Mendota Water Auth. v. Salazar, 638 F.3d 1163, (9th Cir. 2011)). As explained in the Declaration of Ed Everaert, irrigators rely on information regarding irrigation water availability and project operations. Irrigators need to know how much of their quota has been delivered and therefore how much remains. They need to know what projections the operator of the project has made regarding the water season so that they can plan when to irrigate. Knowing what the operator s upcoming plans are can also alter an irrigator s selection of crops. While irrigators may guess at water availability or the operational decisions of the Project operator, actual information gathered by the Project and transmitted regularly as the year progresses is not only the duty of the operator and one of the functions of the FJBC but an essential ingredient to irrigation success. Decl. Everaert 7, 8, 9, 11, 12. As Mr. Everaert opines, the failure to reliably provide information decreases crop yield. Id On the Project, to varying degrees, the additional increment of water represented by non-quota water is essential to crop yields. Moreover, late season irrigation, with non-quota water or quota water if an irrigator has it available, is important to help prepare the land for the next irrigation season. Decl. Everaert 17. Thus, its delivery in the next month is crucial to the FJBC s constituents. 14

22 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 22 of 29 Decl. Orr 11, Decl. Laskody 7-8. Its non-delivery when in fact the water year indicates it is available, will cause irreparable harm that can be neither precisely measured nor repaired later. 4. The FJBC is likely to prevail on the merits. To demonstrate likelihood of prevailing on the merits, a movant for a TRO need not make that showing as to each claim. Atlanta School of Kayaking v. Douglasville-Douglas Co. Water & Sewer Auth., 981 F. Supp. 1469, 1472 (N.D. Ga. 1997) ( The Court need not conclude that plaintiffs have carried their burden of proof on any single claim or on all claims, only that the proof supports a substantial likelihood of success on at least one claim or theory which in turn would support a preliminary injunction. ). a. Turnover counts. The Amended Complaint states seven claims for relief. Counts 1 and 4 request declaratory and injunctive relief requiring Defendants to transfer the operation and management of the Project to an entity compliant with the 1908 Amendment to the Flathead Allotment Act in which Congress required this transfer of authority. The Flathead Turnover provision in that act reads in full: When the payments required by this act have been made for the major part of the unallotted lands irrigable under any system and subject to charges for such construction thereof, the management and operation of such irrigation works shall pass to the owners of the lands irrigated 15

23 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 23 of 29 thereby, to be maintained at their expense under such form of organization and under such rules and regulations as may be acceptable to the Secretary of the Interior. Act of May 29, 1908, 35 Stat. 448 (referred to herein as the 1908 FAA Amendment. ), Ex. A. The entire construction costs of the Project, both the irrigation and power divisions, were fully repaid in They had been a first lien on the land of the irrigators represented by the FJBC. The Flathead Turnover provision is mandatory. While the final clause indicates Congress, in 1908, reposed some discretion in the Secretary of Interior as to the form of organization and applicable rules and regulations, there is no room to deny or delay the Transfer itself. Quoting very similar language from the 1902 Reclamation Act, which in its words requiring transfer of operational authority is identical to the Flathead Turnover provision, the United States Supreme Court characterized the requirement as providing that the Project was later to be turned over as a going concern to the landowners. Swigart v. Baker, 229 U.S. 187, 197 (1913). The Ninth Circuit in 1939 stated this in regard to the Flathead Turnover provision in United States v. McIntire, 101 F.2d 650, 652 (9th Cir. 1939): Flathead Irrigation District, a Montana corporation, hereinafter called the district, will upon repayment to the United States of the project's cost, become the owner of it. 16

24 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 24 of 29 The Department of Interior s administration of identical Turnover language in the 1902 Reclamation Act, by which it has consistently transferred this authority to local irrigation districts and water users associations, informs the application of the Flathead Turnover language. See 43 U.S.C. 371, et seq. There, at 43 U.S.C. 498, Congress mandated that the management and operation of the irrigation projects built pursuant to its provisions shall pass to the owners of the lands irrigated thereby, with a proviso, the absence of which in the FAA Turnover provision, is significant. 43 U.S.C. 498 reads in full: When the payments required by this Act are made for the major portion of the lands irrigated from the waters of any of the works herein provided for, then the management and operation of such irrigation works shall pass to the owners of the lands irrigated thereby, to be maintained at their expense under such form of organization and under such rules and regulations as may be acceptable to the Secretary of the Interior: Provided, That the title to and the management and operation of the reservoirs and the works necessary for their protection and operation shall remain in the Government until otherwise provided by Congress. In addition to the plainly mandatory language it used, the fact that Congress viewed this language as mandatory, and, therefore intended the Flathead Turnover language to also be mandatory, is emphasized by a later enactment in which it authorized the Secretary of Interior to exercise discretion to transfer operational control to any legally organized water-users association or irrigation district 43 U.S.C That discretionary Turnover provision reads in full: 17

25 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 25 of 29 Whenever any legally organized water-users' association or irrigation district shall so request, the Secretary of the Interior is authorized, in his discretion, to transfer to such water-users' association or irrigation district the care, operation, and maintenance of all or any part of the project works, subject to such rules and regulations as he may prescribe. This 1914 enactment of a discretionary Turnover provision, without reference to repayment of construction costs, removes any doubt, if there ever was any, that the previous Turnover language, both in the 1902 Reclamation Act and the FAA Amendment is mandatory. The Flathead Turnover language, as to the mandatory nature of Turnover, is identical to the 1902 Reclamation Act Turnover provision. Hence, as stated at the outset of this section, Turnover is mandatory and it is ripe, as the entire cost of the Project has been repaid. That much is clear. It is sufficient to find the FJBC is likely to prevail on the merits of these claims. Follow-on questions need to be resolved, of course, such as whether Congress intended the Flathead Turnover provision to encompass the reservoirs and the works necessary for their operation and management. The answer appears to be yes, in light of the proviso in the 1902 Reclamation Act Turnover provision that Congress expressly declined to enact six years later in the Flathead Turnover provision. But that and other questions need not be resolved for the Court to determine for purposes of this motion that in fact the FJBC is likely to prevail on the merits of these claims. Turnover is clearly ripe, as all construction costs are 18

26 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 26 of 29 repaid, and it is clearly mandatory. That is all that is needed to find a likelihood of prevailing on the merits. b. Transfer of Land from Fee ownership to Trust. Counts 2 and 5 of the Amended Complaint seek declaratory and injunctive relief stopping the U.S. from continuing to transfer land under the Project and irrigated by it that is owned in fee into trust status. This violates the congressional prohibition in 25 U.S.C. 463(a), a key part of the Indian Reorganization Act of 1934, codified at 25 U.S.C It reads in full: The Secretary of the Interior, if he shall find it to be in the public interest, is authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public-land laws of the United States: Provided, however, That valid rights or claims of any persons to any lands so withdrawn existing on the date of the withdrawal shall not be affected by this Act: Provided further, That this section shall not apply to lands within any reclamation project heretofore authorized in any Indian reservation. 25 U.S.C. 463(a) (emphasis added.) In this section, Congress authorized the Secretary of Interior to restore surplus lands within reservations to tribal ownership. But it also specifically protected not only valid rights or claims of any person to reservation lands but it also excluded, explicitly, lands within any reclamation project heretofore authorized in any Indian reservation. Id. 19

27 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 27 of 29 The Flathead Project is a reclamation project. Despite this congressional prohibition, the United States has been transferring land from fee to trust. Clark Decl. 14. The FJBC is also likely to prevail on the merits of these claims. 5. Consideration of the equities and the public interest, separately or merged, weigh heavily in favor of the FJBC. An arbitrary, uncommunicated about-face in BIA s decades-old policies in violation of written Guidelines cannot be justified. On the side of the BIA, there is little to say in mitigation. Its own written policies require that it communicate with the FJBC and that it implement its non-quota water policy, including delivery of non-quota water. Literally nothing, it seems, argues for the fairness of allowing BIA to ignore these policies, install new, un-written and uncommunicated policies, and by doing so harm both the FJBC and its constituents. Communication with the FJBC is a matter of course, and can be performed easily. Delivery of non-quota water does not detract from any other priority. It explicitly recognizes the need to fulfill interim instream flows first. Non-communication of information lowers irrigation efficiency, lowering crop yields. Is the waste of not only the potential for irrigation efficiency but water itself not in the public interest to limit or stop? Nor is it in the public interest to allow a government agency to promise one thing in writing and do another, reversing decades of practice, at its whim. It is plainly in the public interest to allow 2,000 irrigation accounts to finish this irrigation season as well as possible, 20

28 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 28 of 29 in light of the violations of BIA so far. It is plainly in the public interest to allow these irrigators to have water for a final irrigation or to prepare their land for the next season by requiring BIA to implement its written policies. V. CONCLUSION The next month is critical for these irrigators and those who represent them. They need to know whether water delivered earlier in the season was non-quota so they can determine whether they can afford a final irrigation of crops before harvest. In addition, irrigators need to understand the rules under which they are operating and the forecast for the delivery of fall non-quota water so that they can make plans for which crops to raise in the coming growing season. Many will also want to apply fall non-quota water to their land to accrue the benefits next spring. If the BIA is not required to maintain the status quo and deliver non-quota water, irrigators will be deprived of these benefits. Similarly, if it is not required to convey the information it traditionally has regarding the water year, water availability, O&M work, etc. the FJBC cannot fulfill its duties and represent irrigators. DATED this 28th day of August, METROPOULOS LAW FIRM, PLLC /s/ Jon Metropoulos Jon Metropoulos Attorneys for FJBC and FID 21

29 Case 9:14-cv DLC Document 21 Filed 08/28/14 Page 29 of 29 CERTIFICATE OF COMPLIANCE PURSUANT TO LOCAL RULE 7.1(d)(2) I hereby certify that, pursuant to Local Rule 7.1(d)(2), the attached Brief in Support is proportionately space, has a typeface of 14 points or more and contains 5,052 words, excluding the caption, certificates of service and compliance, table of contents and authorities, and exhibit index. /s/ Jon Metropoulos Jon Metropoulos One South Montana Helena, Montana Attorneys for FJBC and FID 22

30 Case 9:14-cv DLC Document 21-1 Filed 08/28/14 Page 1 of 3 EXHIBIT A

31 Case 9:14-cv DLC Document 21-1 Filed 08/28/14 Page 2 of 3

32 Case 9:14-cv DLC Document 21-1 Filed 08/28/14 Page 3 of 3

33 Case 9:14-cv DLC Document 21-2 Filed 08/28/14 Page 1 of 9 EXHIBIT B

34 Case 9:14-cv DLC Document 21-2 Filed 08/28/14 Page 2 of 9

35 Case 9:14-cv DLC Document 21-2 Filed 08/28/14 Page 3 of 9

36 Case 9:14-cv DLC Document 21-2 Filed 08/28/14 Page 4 of 9

37 Case 9:14-cv DLC Document 21-2 Filed 08/28/14 Page 5 of 9

38 Case 9:14-cv DLC Document 21-2 Filed 08/28/14 Page 6 of 9

39 Case 9:14-cv DLC Document 21-2 Filed 08/28/14 Page 7 of 9

40 Case 9:14-cv DLC Document 21-2 Filed 08/28/14 Page 8 of 9

41 Case 9:14-cv DLC Document 21-2 Filed 08/28/14 Page 9 of 9

42 Case 9:14-cv DLC Document 21-4 Filed 08/28/14 Page 1 of 8 Part Chapter: 50 1 INDIAN AFFAIRS MANUAL Irrigation and Power Irrigation Page Purpose. This chapter identifies the authorities and establishes the policies and responsibilities for building, operating, maintaining, and rehabilitating Indian Affairs' irrigation projects. 1.2 Policy. It is the policy of Indian Affairs to: A Deliver irrigation water to those authorized to be served by Indian irrigation projects: B. Provide opportunities forwater user participation in matters impacting irrigation project operations; C. Construct, operate, and maintain irrigation projects in accordance with applicable technical and safety standards; D. Recover the full cost of irrigation project construction and betterment, where not deferred, and the full cost of operations and maintenance, when required by law; E. Prepare contingency plans forevents oremergencies which might interrupt the delivery of irrigation water; F. Ensure that users make beneficial use of irrigation water; and G. Ensure irrigation project requirements are considered in river basin management decisions. 1.3 Authority. A Statutes. These statutes apply to most Indian irrigation projects. Statutes which relate to specific projects are identified in Project Operating Instructions. (1) Title 25 U.S.C. 13, Snyder Act, provides authority "...forextension, improvement, operation, and maintenance of existing Indian irrigation systems and for development of water supplies:" (2) Title 25 U.S.C. Chapter 11, Irrigation of Allotted Lands; (3) Act of March 7,1928 (45 Stat. 200, 210) provides for assessments to recover costs and creates a first tien against lands charged with unpaid irrigation construction costs; (4) Missouri River Basin authorization (55 Stat. 887, 891) excludes Indian fee lands from construction debt deferral; and (5) Fiscal Year 1984 Department of the Interior and Related Agencies Appropriation Act (P.L , dated November 4,1983) authorizes the investment of operating revenues. B. Judicial Decrees. These decisions apply to all Indian irrigation projects. Decisions which relate to specific projects are identified in Project Operating Instructions. Issued: lam Release #99-06 Replaces: 50 lam 1 Release #98 07 Issued: 11/19/98 EXHIBIT D

43 Case 9:14-cv DLC Document 21-4 Filed 08/28/14 Page 2 of 8 Part: 50 Chapter: 1 INDIAN AFFAIRS MANUAL Irrigation and Power Irrigation Page 2 (1) Winters v United States, Court Judgment entered in 1908 (Winters Doctrine) which determined that rights to water to fulfill the purposes of a reservation were implicitly reserved when reservation lands were withdrawn from the public domain; (2) Arizona v, California, Court Judgment entered in 1963 which quantified water rights for reservation lands using practicably irrigable acreage; and (3) Scholder's Decision, Court Judgment in Civil Case $, entered July , which clarified construction repayment requirements. C. Regulations. These regulations apply to most Indian irrigation projects. Regulations which relate to specific projects are identified in Project Operating Instructions. Projects; (1) (2) (3) (4) (5) 4 CFR Chapter 2, Federal Claims Collection Standards; 25 CFR Part 134, Partial Payment Construction Charges on Indian Irrigation 25 CFR Part 159, Sale of Irrigable Lands, Special Water Contract Requirements; 25 CFR Part 160, Inclusion of Liens In All Patents and Instruments Executed; 25 CFR Part 171, Operation and Maintenance; and (6) 25 CFR Part 173, Concessions, Permits and Leases on Lands Withdrawn or Acquired in Connection With Indian Irrigation Projects. 1.4 Guidance. This guidance applies to most Indian irrigation projects. Other guidance which relates to specific projects is identified in Project Operating Instructions. A Solicitor's Opinion M issued April 13, 1939, clarifying deferral of construction repayment debt on Indian trust lands; B. Handbooks. The following handbooks apply to project operations until specific Project Operating Instructions have been promulgated. These handbooks are available from the Irrigation and Power Liaison and Compliance Section, Western Bank Plaza, 500 Marquette NW, Room Albuquerque, NM 87102; (505) (1) Land Classification for Irrigation Projects; (2) Operation and Maintenance of Irrigation and Power Utilities; (3) Irrigation Construction; (4) National Irrigation Information Management System (NIIMS); and (5) Irrigation Debt. Issued: lam Release #99-06 Replaces: 50 lam 1 Release #98-07 Issued: 11/19/98

44 Case 9:14-cv DLC Document 21-4 Filed 08/28/14 Page 3 of 8 Part: Chapter: 50 1 INDIAN AFFAIRS MANUAL Irrigation and Power Irrigation Page 3 C. Project Operating Instructions. As Operating Instructions are developed for each project, they will have precedence over the handbooks listed in 1.48 of this chapter and will be available from the cognizant Agency Superintendent, Irrigation Engineer, or Officer-in-Charge. 1.5 Responsibilities. A Assistant Secretary-Indian Affairs. (1) Approves Public Notices of rate setting; (2) Coordinates with Bureau ofreclamation to ensure fair representation for irrigable Indian land which is included in irrigation projects undertaken under the Reclamation Act; (3) Concurs on cancellation ofreimbursable irrigation charges in an equitableandjust manner and submits reports of such adjustments or eliminations to Congress which may act favorably or unfavorably on the action; and (4) Concurs on the proposed elimination of non-irrigable lands included within an irrigation project boundaries from the benefits and responsibilities of inclusion in the project and refers such eliminations to Congress for approval. B. Commissioner or Deputy Commissioner of Indian Affairs. (1) Concurs on Public Notices of rate setting; and projects. (2) Concurs on debt cancellation and land redesignation proposals for irrigation C. Director, Office of Trust Responsibilities. (1) Defines and implements policies, standards and procedures for management of Indian irrigation projects; (2) Approves Funding Documents to projects; and (3) Concurs on land redesignation proposals. D. Chief, Division of Water and Land Resources (1) Coordinates IndianAffairs' irrigation management program and reviews activities; (2) Serves as liaison with otherfederal, state, local and tribal govemmentsregarding irrigation management; and (3) Provides technical assistance and training for IndianAffairs' personnelon irrigation construction; operation and maintenance; and requirements imposed by statutes, regulations, judicial decrees, and policies. Issued: 10125/99 lam Release #99-06 Replaces: 50 lam 1 Release #98-07 Issued: 11119/98

45 Case 9:14-cv DLC Document 21-4 Filed 08/28/14 Page 4 of 8 Part: 50 Chapter: 1 INDIAN AFFAIRS MANUAL Irrigation and Power Irrigation Page 4 E. Chief, Irrigation and Power Liaison and Compliance Section. (1) Maintains and operates the National Irrigation Information Management System (NIIMS) database; (2) Issues bills to waterusers for irrigation assessments, and follows upwith demand letters, as necessary; (3) Coordinates the investment of irrigation revenues with the Division of Accounting Management and the Office of Trust Funds Management (OTFM); securities; (4) Initiates, in conference with OTFM, the action to purchase or redeem long-term (5) Reviews debt referral packages before submitting to Department of Treasury; (6) Prepares Funding Documents for approval by the Office oftrust Responsibilities based on a review of revenue collected. interest eamed, and expenditures at each project; and (7) Serves as liaison between individual projects and the Regional Offices, the Division of Accounting Management, and the Office of Trust Responsibilities. F. Regional Directors. (1) Advise the Commissioner or Deputy Commissioner of issues affecting irrigation projects within the Region; (2) Evaluate and determine adequacy of project operations; (3) Recommend annual operation and maintenance assessment rates; (4) Designate an Officer-in-Charge to manage each irrigation project and (5) Refer debt cancellation and land redesignation proposals to Assistant Secretary- Indian Affairs after determining that proposals are equitable and just. G. Regional Irrigation Engineers. (1) Coordinate irrigation management activities in the Region; (2) Provide technical leadership, advice, and assistance to irrigation projects within the Region; (3) Train irrigation staff and distribute data and information applicable to irrigation project management; (4) Provide engineering or administrative support for any irrigation action under the Regional Director's supervision for which operating support is required; and Issued: 10/25/99 lam Release #99 06 Replaces: 50 lam 1 Release #98-07 Issued: 11/19/98

46 Case 9:14-cv DLC Document 21-4 Filed 08/28/14 Page 5 of 8 Part: Chapter: 50, INDIAN AFFAIRS MANUAL Irrigation and Power Irrigation PageS (5) Provide technical assistance in developing and maintaining Project Operating Instructions. H. Officers-in-Charge. (1) Provide operation and maintenance (0 & M) of Indian irrigation projects; (2) Evaluate adequacy of 0 & M program; anticipate evolving conditions and take action to ensure continued, successful project operations; (3) Develop and maintain the Project Operating Instructions; (4) Compile and maintain project monitoring reports, including surveys, crop production data, and tests of soil conditions, water tables, and water logging; (5) Train project staffin project operations and otherapplicable federal requirements; (6) Set schedule for irrigation season; (7) Determine availability of stock water; (8) Decide whether to construct more than one tum-out for a farm unit and manage project delivery point; (9) Manage excess water supplies, where authorized by law or regulation; (10) Receive requests for water delivery and maintain the record of water delivery; (11) Decide construction requirements and features to be provided for private use where justified by contract agreement; authorize transfer of property to private party where authorized by regulation; (12) Provide leaching water; (13) Deposit collections promptly to maximize earnings; (14) Maintain record of payment for irrigation assessments and prepare debt referral packages for Department of Treasury; (15) Prepare and justify debt cancellation proposals and submit to Regional Director; (16) Convene Land Designation Committee, as required, to determine irrigable status of lands included within the irrigation project; document and justify proposed changes and submit package to Regional Director; (17) Meet regularty with water users to discuss proposed O&M assessment rates, water apportionments, and general operation and maintenance of the project; and (18) Recommend to the Regional Director the annual O&M assessment rates. Issued: 10/25/99 lam Release #99-06 Replaces: 50 lam 1 Release #98-07 Issued: 11/19/98

47 Case 9:14-cv DLC Document 21-4 Filed 08/28/14 Page 6 of 8 Part: Chapter: 50 1 INDIAN AFFAIRS MANUAL Irrigation and Power Irrigation Page 6 I. Chief, Division of Accounting Management. (1) Invests funds received from paymentofoperation and maintenance assessments until the proceeds are needed for project operation; and (2) Apportions interest earnings to individual irrigation projects based on cash balances at the projects and records the distribution. 1.6 Project Lands. A Designation of Project Lands. Before an irrigation project is authorized by Congress, the specific parcels of land to be included in the project are identified in surveys, agricultural evaluation reports and environmental evaluations. After construction, a land designation committee is convened to officially designate those lands within the project boundaries, and the public is notified. Lands so designated receive all the benefits ofthe project, including increased land value, and landowners are subject to all the responsibilities for project inclusion including repayment of construction debt and O&M assessments. B. Redesignation of Project Lands. (1) Temporary Redesignation. Under the land redesignation process, land may be temporarily withdrawn from inclusion in a project based on soil or drainage conditions, topography, land preparation requirements, or engineering considerations such as the inability of the project to deliver water. Such lands are designated as temporarily non-assessable (TNA). In no case may lands be determined to be TNA based solely on the inability of a landowner to pay the assessment. (2) Permanent Redesignation. Redesignation of fee land within project boundaries as permanently non-assessable (PNA) must be approved by Congress. For lands to be permanently withdrawn from the project, full repayment ofthe owner's share ofthe construction debt and payment of all O&M debt is required unless such debt has otherwise been forgiven. 1.7 Collection of Construction Debt. Authorizing legislation requires some projects to recover the costs for construction from water beneficiaries. A Projects. The following irrigation projects require recovery of construction costs: (1) Blackfeet Irrigation Project; (2) Colorado River Irrigation Project; (3) Crow Irrigation Project; (4) Duck Valley Irrigation Project; (5) Flathead Irrigation Project; (6) Fort Belknap Irrigation Project; (7) Fort Hall Irrigation Project; (8) Fort Peck Irrigation Project; (9) Fort Yuma Irrigation Project; (10) Pima Irrigation Project; (11) Pine River Irrigation Project; Issued: 10125/99 lam Release #99-06 Replaces: 50 lam 1 Release #98-07 Issued: 11/19/98

48 Case 9:14-cv DLC Document 21-4 Filed 08/28/14 Page 7 of 8 Part: Chapter: 50 1 INDIAN AFFAIRS MANUAL Irrigation and Power Irrigation Page? (12) Pyramid Lake Irrigation Project; (13) Salt River Irrigation Project; (14) San Carlos-Coolidge Irrigation Project; (15) Uintah and Ouray Irrigation Project; (16) Walker River Irrigation Project; (17) Wapato Irrigation Project; and (18) Wind River Irrigation Project. B. Agreements to Repay. Water users for projects subject to cost recovery must enter into contractual agreement with the Federal government to repay project costs. To recover construction debt, each project must amortize the cost of construction over the life of the project as defined in the enabling legislation. C. Billing. Water users are billed for the annual installment in compliance with 4 CFR and federal debt management instructions. D. Trust Lands. The Leavitt Act, 25 U.S.C. 386a, provides that repayment of irrigation construction debt for lands in trust status is deferred until the land passes to fee status. 1.8 OtherProjects. Indian irrigation systemswhich wereconstructed undersnyderactauthority are not cost recoverable and thus are notrequired to follow this rigorous land designation process. 1.9 Operation and Maintenance (O&M) Assessments. A Full Cost. Calculation of full cost of project operation and maintenance includes: current operating expenses, replenishment of operating reserves and emergency funds, and creation of a sinking fund for future and current equipment and facilities replacement. B. Assessments. Assessments to recover thefull cost are billed annually to waterusers in compliance with 4 CFR and federal debt management instructions. C. Delivery of Water. Assessments must be paid prior to delivery of water unless an exception is granted under the circumstances specified in 25 CFR Referral of Delinquent Debts to U.S. Treasury Department. Delinquent irrigation debts are referred to Treasury in accordance with the ~Irrigation Debt Handbook~ and federal debt management instructions Cancellation of Irrigation Debt. A Legislative Cancellation of Debt. (1) Land Held in Trust Status. The Secretary may adjust or eliminate debts against individual Indians or Indian tribes in such a way as shall be "equitable and just in consideration of all the circumstances under which such charges were made." The Leavitt Act, 25 U.S.C. 386a, Issued: 10125/99 lam Release #99-06 Replaces: 50 lam 1 Release #98 07 Issued: 11/19198

49 Case 9:14-cv DLC Document 21-4 Filed 08/28/14 Page 8 of 8 Part: Chapter: 50 1 INDIAN AFFAIRS MANUAL Irrigation and Power Irrigation PageS requires the Secretary ofthe Department ofthe Interior to report proposals for debt cancellation for Indian irrigation projects to Congress. Congress has 90 days to consider a proposal. If Congress takes no action, the proposal becomes effective. (2) Land Held in Fee Status. The Secretary may adjust, defer, or cancel irrigation debt in whole or in part if he determines owners are unable to pay irrigation charges because of inability to operate such lands profitably by reason of lack of fertility of the soil, inadequacy afwater supply, defects of irrigation works, or for any other causes. The VVhite-Leavitt Act, 25 U.S.C. 389 requires the Secretary to report proposals for these debt cancellations for Indian irrigation projects to Congress, and Congressional approval is required for the cancellations to become effective, B. Administrative Termination of Collection Activities or Compromise of Debt. Collection activities may be terminated under 4 CFR based on: inability to collect any substantial amount, inability to locate debtor, cost ofcollection exceeds recovery, the statute of limitations has run, a claim which is legally without merit, or a claim which cannot be substantiated by evidence National Irrigation Information Management System (NIIMS), Billing and collection for irrigation debt are supported by the NIIMS data base. NIIMS maintains records of lands subject to cost recovery for each irrigation project. Based on land records, NIIMS generates bills for construction repayment and Q&M assessments. Bills for excess water sales are also generated by NIIMS. NIIMS interfaces all billing and collection records with the Federal Financial System (FFS) and maintains records of delinquent debts for referral to Treasury. Issued: 10/25/99 lam Release #99-06 Replaces: 50 lam 1 Release #98-07 Issued: 11/19/98

50 Case 9:14-cv DLC Document 21-5 Filed 08/28/14 Page 1 of 3 Be it enacted by the Senate and House of Representatives of the United States ot America in Congress assembled, That the Secretary of the Interior be, and he is hereby authorized to add to the final roll of the Indians of the (Jocko) Flathead Indian Reservation, Montana, approved January 22, 1920, under the Act of May 25, 1918 (Fortieth Statutes, page 591), and the Act of June 30, 1919 (Forty-first Statutes, page 9), the names of ~he folljwing persons, descendants of the Confederated Flathead Tribes of Indians: Lucy Contesto, Mary Sophie Contesto, Clifford Gendron, Adolph Squeque, Peter JOHuph Chalwain, Dennis McLeod, Margaret Louise Ashley, Veona Carlson, Lois May Houle, Norbert Marage, Eva Matilda Matt, Eneas Isadore Woodcock, Wilton Sidney Worley, Harry Leon Boauchaine, Henry Louzeau, and Louise Isaac. The Secretary of the Interior is also authorized to pay to each of the persons named a sum equal to that heretofore paid per capita to those whose names were on the approved roll, such payments to be made from any tribal funds in the Treasury to the Credit of the Flathead Indians. Approved, May 31, [May 10, 1926, 44 Stat. 453, 464] CHAP, An Act Making appropriations for the Dopartment of the Interior for the fiscal year ending June 30, 1927, and for other purposes. * For continuing construction, maintenance, and operation of the irrigation systems on the Flathead Indian Reservation, in Montana, by and under the direction of the Commissioner of Indian Affairs, including the purchase of any necessary rights or property, $575,000: Provided, That of the total amount herein appropriated not to exceed $15,000 shall be available for operation and maintenance of the project, the balance to be available for the construction items hereinafter enumerated in not to exceed the following amounts: Pablo Feed Canal enlargement, $100,000; Moiese Canal enlargement, $15,000; South Side Jacko Canal, $40,000; Hubbart Feed Canal, $7,500; Camas A Canal, $2,500; Continuing construction of power plant, $395~000, of which sum $15,000 shall be immediately available for additional surveys and preparation of plans: Provided further, That no EXHIBIT E

51 Case 9:14-cv DLC Document 21-5 Filed 08/28/14 Page 2 of 3 part of this appropriltion, except the $15,000 herein made immediqtej~ available shall be expended on construction work until An nppropriate ~epayment contract, in for~ approved by the Secret~ry of the Interior, shall have been properly executed by a di:;trict or districts organized under State law embracing the lands irrigable under the project, except trust patent Indian lands, which contract, among other things, shall reauire repayment of all construction costs heretofore or hereafter incurred on behalf of such lands, with provision that the total construction cost on the Camas Division tn ~xcess of the amount it would be if based on the per acre constructiod cost of the Mission Valley Division of the project, shall be held and treated as a deferred obligation to be liquidated as hereinafter provided. Such contract shall require that the net revenues derived from the operation of the power plant herein appropriated for shall be used to reimburse the United States in the following order: First, to liquidate the cost of the power development; second, to liquidate payment of the deferred obligation on the Camas DiVision; third, to liquidate construction cost on an equal per acre' basis on each acre of irrigable land within the entire project; and fourth, to liquidate operation and maintenance costs within the entire project. Provision shall also be contained therein requiring payment of operation and maintenance charges annually in advance of each irrigation season and prohibit the granting of a water right to or the use of water by any individual for more than one hundred and sixty acres of land irrigable under constructed works within the project after the Secretary of the Interior shall have issued public notice in accordance with the Act of May 18, 1916 (Thirty-ninth Statutes at Large, pages ); all lands, except lands owned by individual Indians, at the date of public notice in excess of one hundred and sixty acres not disposed of by bona fide sale within two years after said public notice shall be conveyed in fee to the United States free of encumbrance to again become a part of the public domain under contract between the United States and the individual owners at the appraised price fixed at the instance of the Secretary of the Interior, such amount to be credited in reduction of the construction charge against the land within the project retained by such owner. All lands so conveyed to the United States shall be subject to disposition by the Secretary of the Interior in farm units at the appraised price, to which shall be added such amount as may be necessary to cover any accruals against the land and other costs arising from conditions and requirements prescribed by said Secretary: Provided further, That trust patent Indian lands shall not be subject to the provisions of the law of any district created as herein provided for