Six out of seven of Montana’s American Indian reservations have negotiated agreements to forever settle their water rights. Now the Confederated Salish and Kootenai Tribes are closing in on their own water compact, with the goal of having a document ready for consideration when the 2013 Legislature begins in January.
The Montana Reserved Water Rights Compact Commission is expected to decide at a Dec. 19 meeting whether to submit the compact to the Legislature, though multiple components of the settlement must come together before then. Some critics argue the process is being rushed even as large pockets of public skepticism remain.
Negotiators assure that the compact protects existing water rights and doesn’t grant the tribe any additional off-reservation management authority. They say many public concerns have been fueled by false rumors and misconceptions, and that the job will be done thoroughly, not hurriedly.
“There are a lot of facts that need to be put out there,” said Dan Salomon, a Republican House representative from Ronan and member of the Reserved Water Rights Compact Commission. “There’s a lot misinformation being spread. You know how rumors are.”
“We’re not going to pass it in the middle of the night and slam it through,” he added. “If we run out of time, we run out of time. Until that point, we’re working on trying to get it done.”
But a fellow Republican, Kalispell Sen. Verdell Jackson, says the compact raises a number of concerns and he believes there are too many unanswered questions to move forward. Jackson has been following the negotiations closely and has been involved in water rights issues for his 14 years in the Legislature.
“It came out so late, we can’t adequately do the research to make a good decision on it,” Jackson said. “This is something that’s been worked on for many years and we still don’t have final documents.”
Compact negotiations have been ongoing for years between the three primary parties involved in the settlement: the state of Montana, Confederated Salish and Kootenai Tribes and the federal government. If the Legislature approves the compact, it would then need approval from Congress, the tribal government and finally the Montana Water Court, a process likely to take years.
The negotiations seek to formally confirm and quantify the Confederated Salish and Kootenai Tribes’ water rights, while also establishing an administrative board to manage water on the Flathead Indian Reservation. The tribe’s “time immemorial” fishery rights, on the reservation and throughout its western Montana aboriginal hunting and fishing territory, stem from the 1855 Hellgate Treaty and were later upheld in federal court.
Jay Weiner, an attorney for the state compact commission, said it’s untrue that the compact’s off-reservation component is setting new precedent, as has been suggested. The state’s six other completed tribal compacts dealt exclusively with on-reservation water rights, but tribal compacts throughout the Pacific Northwest have included off-reservation rights, Weiner said.
“We are, in fact, on pretty well-plowed ground,” he said.
The off-reservation rights have prompted concern across western Montana that existing water rights will be adversely impacted. But negotiators say all non-irrigation uses will be protected, including domestic, stock water, municipal, mining and other purposes. The tribe has also agreed to relinquish its senior right to make a “call” against groundwater irrigators using less than 100 gallons per minute.
But the tribe retains its ability to exercise senior rights authority against 94 junior rights holders along the Flathead River main stem and three forks. Citing water abundance in the drainage, however, the commission says it’s unlikely the tribe would ever need to make a call.
Furthermore, the compact commission stresses that the tribe’s off-reservation rights are non-consumptive – meaning the tribe has the right to maintain streamflows sufficient to support traditional fisheries but not to manage the water for other purposes.
“They’re keeping water in the stream,” Weiner said. “They’re not taking it out.”
But not everybody is convinced. Irrigators in particular have expressed worries, as their agricultural livelihoods depend strongly on water rights. Jackson believes the tribe must prove that it uses its aboriginal western Montana territory for subsistence hunting and fishing to stake claim to those water rights. And he questions using an 1855 treaty as the basis for negotiations, arguing that the treaty lacks specific water rights language.
The commission, however, makes clear that federal courts have definitively upheld both the tribe’s on- and off-reservation senior rights based on the Hellgate Treaty.
“People are trying harass the legality of it,” Salomon said. “But it’s pretty iron-clad, crystal clear.”
The compact commission held a series of 12 public meetings across western Montana in late November and ending Dec. 4. The meetings gave the commission an opportunity to gather input, listen to concerns and answer questions regarding an updated compact draft released Nov. 8, along with a proposed administrative and management ordinance.
The compact, including its extensive technical documentation, is well over 1,000 pages.
A management board is being created to administer the compact on the reservation. The commission stresses that the board will only have jurisdiction over the reservation. As proposed, it will consist of two members appointed by the tribal council, two appointed by the governor and a fifth appointed by the other four members. The Department of Interior would appoint a sixth, non-voting member.
“Nothing we’re doing in this settlement gives the tribe any new or different authority off the reservation,” Weiner said.
Salomon says the commission addressed a long list of misconceptions at the meetings. He is in a unique negotiating position as a commission member, legislator and irrigator. Among other misinformation, he said some people are under the false impression that the tribe will begin charging for water.
“Most of the meetings lasted at least three or four hours,” Salomon said. “We got a lot of questions answered, I hope.”
Weiner said the commission will make revisions based on the meetings. As of last week, he didn’t know the specific revisions but said they would likely deal with clarifying parts of the compact that may be contributing to public misunderstanding.
The compact also provides for registration of previously undocumented water uses, along with a streamlined application process for new domestic and stock water wells, among other provisions. Additionally, it grants the tribe co-ownership of some off-reservation rights with Montana Fish, Wildlife and Parks, though Salomon said it’s important to distinguish that those rights are existing, not new.
The public meetings focused on the compact’s off-reservation issues, but the Flathead Joint Board of Control (FJBC) is conducting separate negotiations for a water-use agreement to determine how Flathead Indian Irrigation Project (FIIP) irrigators and the tribe will exercise and administer water rights on the reservation, including in-stream flow rights for streams used by the FIIP.
That agreement would be folded into the compact and Weiner said the commission considers it a critical component of the overall settlement. In May, the tribe, federal government and FJBC released a draft irrigation agreement and have been trying to hammer out a final document since. The FBJC was expected to address the issue at its Dec. 11 meeting with the hope of voting on an agreement, if one was ready.
Terry Backs, a grassroots activist who has raised doubts about the compact throughout negotiations, doesn’t believe the irrigation agreement should be separate. Backs says the state should be involved on behalf of the irrigators, who she says are being “bullied” in negotiations.
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An irrigation sprinkler sits in a field near Pablo. – Justin Franz/Flathead Beacon |
“I don’t believe the state should be allowed to wash their hands of this agreement and then include it in the compact afterward,” she said.
The final settlement will include federal and state monetary contributions. Gov. Brian Schweitzer’s budget has set aside $55 million for the state portion, $30 million of which is intended to go to the Flathead Indian Irrigation Project for pumping costs, Weiner said. Gov.-elect Steve Bullock has not released his budget yet. The federal portion, to be determined later, will go to the tribe.
The nine-member compact commission is set to expire in July of next year, with the anticipation that all of the remaining compacts on its docket will be submitted to the 2013 Legislature. The commission is also trying to finish up two other non-tribal compacts for the Upper Missouri River Breaks National Monument and Charles M. Russell National Wildlife Refuge.
The Legislature created the commission in 1979 to negotiate water rights settlements with Montana’s tribes and the federal government, under the premise that negotiation is better than litigation for all parties involved.
“Settlement leads to a more comprehensive and more flexible outcome and avoids the time, expense, risk and uncertainty of litigation,” the commission states.
Amid worries that the compact is being rushed to meet the Legislature deadline, Jackson says he has submitted a bill draft to extend the compact commission past its scheduled July expiration.
“That would give us time to work on it and make sure it’s fair and make sure that not only are present water users protected by the priority system we’ve put in place but also that our kids and grandkids have water,” he said.
Flathead county and municipal officials have been paying close attention to the compact negotiations. The Flathead County Commission has expressed worries over the compact’s provision that gives the tribe 90,000 acre-feet of water per year from the Hungry Horse Reservoir. The tribe would also be able to lease 11,000 acre-feet for off-reservation uses.
Whitefish City Manager Chuck Stearns is less concerned. Based on his research, Stearns said in a late October memo that “there should be no effect of the compact on our future ability to obtain or adjudicate additional water rights,” though he said he would continue to monitor negotiations.
With the clock ticking, Salomon couldn’t guess if all of the settlement’s different parts will come together in time for the Legislature.
“I don’t have a crystal ball,” he said. “I know we’re not giving up. We’ll keep plugging away.”
For complete details and to view the entire agreement, please visit www.dnrc.mt.gov/rwrcc/Compacts/CSKT/Default.asp