Montana Tribes Celebrate Purchase of Hydroelectric Dam*
A Montana state senator failed to persuade a federal judge that a hydroelectric dam should not be transferred to Native American tribes because of their ties to the Turkish government and fear of a terrorist attack.
State Sen. Bob Keenan sued the Federal Energy Regulatory Commission to try to stop the transfer of the Kerr Dam to a coalition of Native American tribes. In his Sept. 2 lawsuit in District of Columbia Federal Court, Keenan pointed out that transferring control of the dam on the Flathead River, near the Flathead Reservation, would be “the first-ever major hydropower facility/license conveyance to a Native American tribal government to take place since the events of September 11, 2001.”
Keenan, a Republican, obviously was unhappy with the tribes and with FERC. He accused FERC of “systemic abuse,” arbitrary and capricious friendliness to the tribes, and “perpetrat(ing)” a “grand deception” upon Montana by mismanaging the dam.
“This Court, out of an abundance of precaution, must view these failings in the context of the post-9/11 world in which we all live and work, where threats and isolated acts of terrorism are no longer uncommon occurrences, but are carefully considered, reviewed and assessed by federal agencies and law enforcement officials charged with protecting the public interest,” Keenan said in his complaint.
State Sen. Verdell Jackson and Pointer Scenic Cruises joined him in the lawsuit against the FERC, the Department of the Interior, the Bureau of Indian Affairs and the U.S. Fish and Wildlife Service. U.S. District Judge Rudolph Contreras didn’t buy the arguments, and refused to restrain the transfer on Sept. 4. The Confederated Salish Kootenai Tribes of the Flathead Reservation celebrated their acquisition of the dam the next day.
The Kerr Dam, near Polson, Mont., was built in the 1930s, despite tribal leaders’ objections, and has been controversial ever since. The dam was built on a place of spiritual importance. The Salish and Kootenai Tribes paid $18.3 million for the dam.
In his lawsuit, Keenan cast a cold eye upon Turkey’s efforts to build business relationship with U.S. tribes, including the Salish and Kootenai.
“Between 2008 and 2015, representatives from various U.S.-based Turkish American organizations and the Islamic Government of the Republic of Turkey have made considerable efforts to establish business and cultural exchange relationships with Native American tribes and their members, including students,” Keenan says in the complaint.
Keenan claims that the FERC and the Department of the Interior have “waived” far too many powers to the tribes, for decades.
“Since these requirements have long been waived in promotion of tribal self-governance, how then can FERC now be assured that proceeding with such transaction on September 5, 2015 is in the public interest, especially considering that we all are in a post-9/11 world and closely monitoring potential national security issues?” Keenan asks, quoting from an objection co-plaintiff Pointer filed with the FERC on Aug. 24.
Turkey is a U.S. ally a member of NATO. Nonetheless, Keenan says, the Turkish government has been “harbouring, funding and facilitating the broadcast disseminations” of the Muslim Brotherhood and Hamas.
“These disturbing media reports spanning 2012-2015 raise serious questions about the motivations underlying the Republic of Turkey’s extensive public outreach to the Native American community,” Keenan says in the complaint.
He claims tribal ownership of the dam could lead to terrorist attacks because the Salish and Kootenai tribes have “technical expertise in high profile” uranium cleanups.
“It is quite possible that the Turkish government, sponsored Turkish business enterprises and affiliated terrorist groups or members may be seeking access to such expertise for possible acquisition and use of incendiary devices to compromise Kerr Dam and/or other off-reservation targets,” the complaint states.
Judge Contreras called the arguments about the Turkish government “somewhat perplexing.”
“To the extent such injuries are cognizable, nowhere are those allegations substantiated in the record,” Contreras wrote.
“Indeed, at hearing, counsel for plaintiffs conceded that no such evidence has been submitted relating to the plaintiffs’ alleged economic harm.”
Keenan filed a motion for a week-long extension on Sept. 8, four days after Contreras refused to block the transfer and three days after the tribes celebrated.
Keenan is a member of his party’s right wing. He calls federal health inspectors the “food safety Gestapo,” opposes the Children’s Health Insurance Program, and home schools his children rather than send them to government schools, according to Governing magazine. According to Governing, a nonpartisan publication, Keenan has said,
“The federal government has no right to be involved with education.”
The dam itself is 541 feet long and 205 feet high. That’s 54 feet higher than Niagara Falls. It’s located on the Flathead River about five miles from Polson, Montana, and Flathead Lake, the largest natural lake west of the Mississippi.
Energy Keepers, Inc. is a corporation wholly owned by CSKT (Confederated Salish and Kootenai Tribes) and was established to acquire, operate and sell power from the Kerr hydropower dam which is located within the reservation.
“Our ancestors had the vision that we’d recapture the resources surrounding the dam,”
Ronald Trahan, CSKT Council Chairman said.
“Moving a step closer to that vision has been good for my heart and everyone else on Council. It’s been a long time coming. A lot of hard work and sacrifices brought us here. Through it all we must honour the ancestors who held the original vision to bring us this success.”
The dam was started in 1929 but lack of money delayed completion till 1938.
“It was built at a time when the reservation was in the process of being allotted to plat an Indian reservation,” Energy Keepers CEO Brian Lipscomb said.
“They built an irrigation allotment on top of that allotment. In the process of constructing the irrigation project they needed power to run the pumps so they developed an electric site where Kerr dam sits now.”
Montana Power arrived, determined the site was large enough to build a dam and agreed to provide power to run the pumps, and they would keep the rest of the power.
The initial license by the Federal Energy Regulatory Commission (FERC) expired in 1980. The tribes filed a competing license application in 1976 and after nine years of negotiating reached a settlement with Montana Power Company. “We would receive $9.5 million for land rental payment and have the opportunity to acquire the facility at the original cost of construction, less depreciation for the last 20 years of the license,” Lipscomb explained. That opportunity would occur after 30 years, or 2015. “The $9.5 million was to escalate at the CPI (Consumer Price Index) over the life of the ownership of Montana Power Company.”
That began in 1985 and has escalated upwards since. In 1999 Montana Power Company sold to Pennsylvania Power and Light and that’s who the Confederated Tribes have been dealing with via mediation that resulted in the purchase price.
Lipscomb pointed out that the $9.5 million annual payment in the first year has now reached about copy9 million and will approach $20 million when the tribes acquire the property.
When arbitration meetings began PPL-Montana was asking $49.4 million for the dam. CSKT was offering copy4.7 million.
“It took years of discussion and even arbitration” to reach this agreed on price of copy8,289,798 Chairman Trahan said.
The dam raised the level of Flathead Lake about 10 feet. Lipscomb explained,
“It doesn’t fill the lake fuller than it ever did, it just holds it full longer, so there’s been quite an impact around the shoreline.”
“The land payment will continue and there will be additional revenue above that which will come back to the tribe,” Lipscomb said.
Actual projections on how much this will benefit the tribe are confidential at this point, however Lipscomb was able to say,
“Kerr generates about 1.1 million megawatt hours of electricity on average per year. The current market price we project when we take over is about $32 per megawatt hour. That gives a sense of the gross revenues.” That’s enough to provide power for upwards of 145,000 homes.