The Montana Water Rights Compact Commission still plans to submit an expansive tribal water settlement to the Legislature, even after a Dec. 19 final vote was postponed and legal questions remain over an integral component of the settlement.
After years of negotiations, the nine-member compact commission is trying to finalize a settlement – called a compact – that will forever settle the water rights of the Confederated Salish and Kootenai Tribes. All six of Montana’s other tribes have completed a compact.
In an effort to finalize a document before the forthcoming Legislature, the commission was set to vote on the compact at its Dec. 19 meeting. But attorney Jay Weiner said the commission opted not to hold the vote because a water-use agreement for the Flathead Indian Reservation – considered an integral component of the overall settlement – hadn’t yet been completed.
While the commission has been overseeing negotiations for the compact’s off-reservation stipulations, the Flathead Joint Board of Control is conducting separate negotiations for the water-use agreement, which will determine how irrigators and the tribe exercise and administer water rights on the reservation.
A third major component of the compact is the creation of a management board to administer those on-reservation rights.
Lake County District Judge C.B. McNeil threw a wrinkle in the negotiations when he issued a Dec. 14 order requesting that the Flathead Joint Board of Control submit the water-use agreement to further review before approval.
Weiner said the commission already planned to delay the vote regardless of McNeil’s ruling, “because the agreement wasn’t ready and we were still taking public comment.”
“I don’t think we would move forward without the water-use agreement unless we had something else in place to protect the irrigators,” Weiner said last week. “What’s important is not just how this particular fight gets settled, but that we have protections for irrigators already embedded in the settlement.”
McNeil’s ruling came in response to a complaint filed by the Western Montana Water Users Association, a group representing irrigators from the Mission, Jocko Valley and Flathead irrigation districts. The group has argued that the Flathead Joint Board of Control – listed as a defendant – hasn’t sufficiently represented their interests during negotiations. The three irrigation districts are also listed as defendants.
Citing state law, the complaint contended that the agreement must be submitted to McNeil’s court for review and be approved by the irrigation districts – not just the joint board.
“Such a distinction is relevant,” the complaint states, “because the boards for all three irrigation districts do not support the proposed FIP Agreement and the related Compact and water rights settlement proposed by the CSKT.”
The complaint also stated that the agreement must be approved by a vote of individual irrigators. Additionally, the plaintiff argued that the agreement the joint board “seeks to approve is premised on the false assumption that a ‘cooperative management entity’” created by a separate agreement is “valid and enforceable.”
“It is not,” the complaint says.
McNeil agreed with the plaintiff’s assertions. He issued a writ of mandate requiring a vote from irrigators or a petition circulated to irrigators before the agreement can be approved. He also required the agreement to be submitted to his court or for the defendants to respond to the complaint, which would lead to a hearing.
Weiner said he expects the joint board of control to “vigorously respond” to the complaint. Meanwhile, the commission is making minor tweaks to the compact based on public comment, though Weiner doesn’t see the need for “any major course corrections.”
Though completing a final document before the Legislature convenes on Jan. 7 is out of the question, Weiner anticipates being able to get the compact – with protections for irrigators – ready for review at some point during the session.
“The clock is certainly ticking,” he said, “but we still intend to have something completed in time to bring it forward to the Legislature this session.”