The Confederated Salish and Kootenai Tribes Flathead Reservation is the last of the Montana tribes to settle its water rights with the state. The Reservation encompasses the Mission Valley south of Flathead Lake.
The Lake family of Ronan has been raising potatoes on about 1,000 acres for about 50 years. Susan Lake says they’ve been watching the negotiations unfold. The family uses irrigation to grow their potatoes, and has been worried about having enough water to meet their crops demands. She said the negotiations protect irrigators rights.
“We have a legal right to the water,” Lake said on the non-irrigation side their wells will be grandfathered in place, “in this negotiation we feel like our water rights have been protected.”
Rancher Jerry Laskody retired from the Boeing Company and set up a 60-acre cow-calf ranch near Saint Ignatius about 10-years ago. Laskody said his property was allotted to a tribal member in 1910 who eventually sold the property, taking it out of tribal ownership. He says the water rights went with it.
“I have a water right with a priority date of 1855 and while the Tribe touts that they’re going to give all of the irrigators 1855 rights, most of the people in the area that I live in have already got that right. So, it’s not a gift to us, we already have it,” Laskody said. 1855 refers to the date of the Hellgate Treaty which created the Flathead Reservation.
A group called Concerned Citizens of Lake County and Western Montana is organizing opposition to the Compact. It hired Consulting Hydrologist Kate Vandemoer of Wyoming who worked on the Wind River state-tribal water rights settlement there.
“What has happened with this compact is that the Compact Commission has, quote- gone off the reservation – and is including in this discussion about 30 million acre feet of water off the reservation, what they’re calling “’aboriginal rights’,” Vandemoer said.
The 1855 Hellgate Treaty affirms the Tribes right to hunt on traditional lands, and fish where the Tribes have traditionally fished. Attorney Jay Weiner with the Montana Reserved Water Rights Compact Commission said that court rulings have found that protecting those traditional fishing rights mean making sure there’s enough water for fish to thrive. This means that the Compact deals with stream flow from water outside the reservation.
Vandemoer saidthe off-reservation water is not part of the federal reserved water rights. She said the Compact replaces existing water rights with a right-to-receive.
Weiner said the Compact does not take away anyone’s private water rights, he said it resolves the water rights for the Flathead Indian Irrigation Project.
Vandemoer and Laskody said they’d like to see the Commission sunset this year “and we go to water court with the Tribe and settle who owns the water right to begin with,” Laskody said. “They have come in here and basically said all the water is ours, and this is what we’re going to give you. That is not negotiation, that is unconditional surrender.”
Weiner said litigation is what they’ve been trying to avoid. He said they believe the Compact offers a reasonable recognition of the Tribes legal water rights off the reservation, “and done it in a way that is absolutely protective, and not disruptive of existing users throughout Western Montana, and we think that was a very important part of our mission,” Weiner said they think the Compact superior to going to court, “where the tribes potentially could come out with many more significant water rights than we’ve recognized- proposed to recognize in this compact.”
Lake said now her biggest concern is that the agreement will get scraped and the issue will get tied up in court.
“The Tribe has a first water right. They have the 1855 priority dates on their water. So, I feel like if we go to the litigation process, it’ll impact our project, our water project – it’ll be devastating,” Lake said.
The Flathead Joint Board of Control represents Irrigators in the area. In a split vote it recommended the agreement for approval and the vote will be going out to its 15-hundred-members. The Board is hosting public informational meetings next week. The agreement if approved gets folded into the entire Compact which negotiators hope to introduce in the current legislative session.