What happens now with the Flathead Water Compact?

Credit: Flickr,  Peggy2012CREATIVELENZ

Credit: Flickr, Peggy2012CREATIVELENZ

The Confederated Salish and Kootenai Tribes are now mulling their options after the 2013 Montana Legislature failed to pass the Flathead Water Rights Compact; but CSKT officials are hopeful the agreement can be passed by the 2015 Legislature.

The Montana Reserved Water Rights Compact Commission, made up of nine appointed members, has been working with the CSKT on the Flathead Water Compact for 12 years. The commission crafts agreements with the tribes to settle water disputes between the general public and tribes, who hold senior water rights guaranteed in treaties signed in the 1800s. Flathead is the last compact left for the state to pass with a tribe, and it’s the only one not to have passed through the Montana Legislature.

The House Judiciary Committee tabled the bill after its March hearing. Lawmakers heard long testimony from supporters and opponents of the compact. Some felt more time needed to be taken to evaluate the concerns of those opposed, who say the compact will be taking the water rights of non-tribal irrigators.

“Well, the Legislature hasn’t been working on it for twelve years,” said Sen. Jennifer Fielder, R-Thompson Falls. “It was dropped on our lap at the end of February and it’s a 1200-page document.”

Fielder said she wanted to understand a document as complex as the compact before voting on it. Fielder supports the House Judiciary Committee tabling the bill and hopes the Legislature will be able to take the next two years to address concerns.

CSKT Communications Director Rob McDonald says negotiations on the compact are finished.

“They’re hard-forged agreements that took a lot of hard work,” McDonald said. “(The negotiations) were aired out in the public very intensely for the last four years.”

Gov. Steve Bullock vetoed a bill from Sen. Verdell Jackson which would have attempted to re-open negotiations between the state and CSKT. Water Rights Compact Commission member Rep. Dan Salomon, R-Ronan, said he agrees with that veto.

“You can ask the tribes to come back and it’s entirely up to them whether they do or not,” Salomon said. “We can’t force anyone to renegotiate like some people want.”
In Bullock’s veto message, he directs the Compact Commission to draft a report addressing the concerns of Flathead Water Compact opponents. CSKT hopes the legislature decides to adopt the compact in 2015, otherwise the tribes have the option of taking their disputes to court. The state estimates as many as 10-thousand claims may be filed if that happens.
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Stakeholders can’t bridge the divide over Flathead Water Compact

(Photo by Montanabw, Some rights reserved.)

(Photo by Montanabw, Some rights reserved.)

The Flathead Water Rights Compact is now being considered by the Montana Legislature.

Montana’s last tribal water rights settlement is the result of 12 years of negotiations between the state and the Confederated Salish and Kootenai Tribes.

There are still a lot of people who don’t want the agreement to pass.

“This is a historic moment.”

Bozeman Democratic Representative Kathleen Williams speaking to the House Judiciary Committee.

She sits on the Montana Water Rights Compact Commission which voted in February to send the long-debated Flathead Water Compact to the Legislature for approval.

That commission was created decades ago to try to settle the state’s big water rights disputes with the federal government and the tribes—to settle those disputes out of court.

Chairman Chris Tweeten has been a part of the Compact Commission since the mid-80s.

He says Montana is the envy of Western states in being able to resolve these very complicated cases outside the court system.

“At a tremendous savings in money, in time, in controversy, in conflict.”

He says the Legislature has ratified 15 compacts from the commission, but nothing like this one.

“This bill has had more public process, by far, than any other compact we’ve ever done.”

Federal treaties signed back when the reservations were established give tribes water rights that go way back—in some cases to the 1850s, other times the water rights date back essentially forever.

And the way water rights usually work in Montana is the Senior Water Rights holder gets what they need from a water source.

All the junior rights holders, those who came in later, get whatever is left over.

Tweeten says ignoring the tribes water rights is not an option.
They will either be hammered out through litigation or through a compact—a compromise with the area’s other water users.

Chairman of the Confederated Salish and Kootenai Tribes, Joe Durglo, says the tribes are giving a lot of concessions to settle the dispute.

“This compact addresses the multiple needs in our community which includes the needs of our hunters, fishers, irrigators, business owners, community developers and future planners.”

Former Republican Congressional Candidate and Mission Valley Rancher Alan Mikkelson says the compact is the only rational way forward.

“Unfortunately, there is a lot of fear and hysteria out there. Whether through lack of knowledge, ignorance or malice, this compact is being ripped to shreds without any basis in fact.”

Mikkelson says no one will be losing irrigation water both on and off the reservation and wells are protected.

And a lot of folks testified agreeing with Mikkelson, in favor of the compact.

But there was just as much if not more testimony in total opposition.

“It will result in a taking of an irrigator’s valuable property rights.”
Attorney Brian Shuck represents the Western Montana Water Users Association, a group against the compact.

He faults the compact for giving irrigators what he calls a one-size fits all amount of water.

Shuck also claims the rights given to the tribes by the Federal Government were first given to the federal government by the state.

“And so what they have is a state based water-right.”

And he argues this compact violates state water rights and property law.

In February, District Court Judge C.B. McNeil ruled the compact unconstitutionally takes property from irrigators.

A number of those irrigators stood up in strong opposition. Like Daniel Cole.

“The opposition to the water use agreement and by extension the compact has been downplayed.”

He’s a Commissioner with the Joint Board of Control, which was responsible for working out a piece of the compact.

“We’ve been told for months or years that ‘Well, we never really had a water right.’ We know under the compact we will not have a water right.”

He says these complaints need to be looked into further before the compact is signed.

Thompson Falls Republican Senator Jennifer Fielder agrees.

“A yes vote on this compact is permanent, a no vote is not permanent. We can work on this through the interim and we can come back and if it’s a great compact, I don’t think it will have any trouble passing next session.”

Supporters of the compact warn if the legislature does not pass the compact, the tribes are taking it off the table—and will be heading to court.