The Confederated Salish and Kootenai Tribes’ Water Compact is now in the hands of the 64th Montana Legislature.
The Montana Reserved Water Rights Commission voted unanimously in Helena on Monday night to move the compact on to the Legislature after a lengthy hearing. The compact would finalize tribal rights on several water sources on and off the Flathead Indian Reservation, and implement a management ordinance to administer water rights on the reservation. Passage of the compact would avoid a looming deadline for the tribes to file water rights’ claims that could number in the thousands and include river basins across Montana.
“This provides an element of certainty,” said Melissa Hornbein, attorney for the Montana Department of Natural Resources and Conservation. “The purpose is not to give water rights to the tribe; it is to quantify water rights they already have determined by the Supreme Court.”
Federal courts have decided the tribes hold water rights for instream flow to sustain traditional fishing know as “time immemorial,” meaning before legal history. The court could make instream flows senior to all water rights on several Montana waterways, and prevent irrigation and other uses in potential costly litigation.
The compact guarantees the tribes' instream flow with historic supplies of water for irrigators and domestic users with specifically monitored targets, Hornbein said. Irrigators’ water is protected by river diversion allowances as well as providing a delivery entitlement statement, or documentation proving water consumption in the Flathead Indian Irrigation Project.
Adjudication of water rights via the courts represents the alternative to the compact’s failure, which has happened in many other states, Hornbein said. Montana chose a different path by negotiating rather than litigating -- a process the state feels has the best chance to preserve the rights of junior users.
The commission spent more than a decade negotiating the compact, which now faces an expected battle for approval by the Legislature. If it does succeed at the state level, Congress and the tribes must also approve it, plus a final decree must come from the Montana Water Court to make it law.
The 2013 Legislature did not pass an iteration of the compact and the tribes have until June 30 to file water rights claims with the Water Court. In 2014, the state and the tribes resumed negotiations, agreeing on a compact in December.
The state will ask the Legislature for $55 million to implement the compact, including $30 million to offset pumping costs, $13 million for habitat enhancement, and $4 million each for water measurement, efficiency and mitigation for loss of stock water.
More than 100 people, many from the Flathead and Jocko valleys, sat and stood in the Great Northern Hotel for 3 ½ hours of public comment and discussion.
Approximately 30 people spoke in favor of the compact.
Ronan area rancher and deputy director of the Montana Department of Agriculture, Joel Clairmont, speaking for himself, noted the extensive work to protect water rights by the state and tribes in voicing his approval.
“As a producer this compact assures my future. This is very important for not only me but my children and grandchildren,” he said.
Ronan farmer Ken Cornelius said he wholeheartedly agrees with the tribes’ rights to immemorial instream flow, but that as stewards of the land, the compact lets tribal and nontribal farmers leave the land better than they found it.
“I sat down and read the whole compact and there’s not a thing in there I don’t agree with,” he said. “It’s good for farmers on and off the reservation.”
Around a half dozen people spoke out against the compact.
St. Ignatius realtor and irrigator David Passieri said he was offended by those calling the compact an Indian versus non-Indian issue.
“This is a political process that has served to divide people,” he said. “This I still see as a flawed compact.”
Passieri pointed to tribal water rights guaranteed off the reservation that would be jointly held with the state as a provision of the compact. With a federal jurisdiction through the Bureau of Indian Affairs, the unprecedented action would surely result in more litigation, he said.
Ultimately, the commission sided with the majority and after discussion passed the compact on to the Legislature.
Commissioner Sen. Debby Barrett, R-Dillon, asked several questions before casting her vote in favor.
Commissioner Dorothy Bradley called the compact “historic” and said she was emotional about how far the negotiations had come.
Commissioner Sen. Dick Barrett, D-Missoula, praised the staff for the extensive work that went into the project.
“A great deal of care has been exercised and as a result of that emerged with an agreement here that is very sound and which is a significant improvement over the prior water use agreement,” he said.
Chairman Chris Tweeten had the final word before the vote, and noted the many challenges the compact will face moving forward and opportunity for further public involvement.
“This is just the first step in a fairly lengthy process in getting one of these projects to finality," he said.