The CSKT water compact is just one of the many important negotiated agreements that our state has entered into over a long period of time with the Indian tribes of Montana. Through the years, numerous water compacts and other state-tribal agreements, such as the Flathead Hunting and Fishing agreement, which I reviewed as Montana attorney general for legal sufficiency and Gov. Stan Stephens signed in 1990, have been negotiated and passed with the best interests of all Montanans in mind.
The compact that is now being considered by the Montana Legislature is no different — it is a bipartisan agreement formed after extensive and difficult negotiations to clarify the federally reserved water rights of the Confederated Salish and Kootenai Tribes while simultaneously ensuring water access and water rights protection for all nontribal interests as well. After a thorough review of the compact and its impacts on all Montanans, Attorney General Tim Fox has concluded that the compact not only complies with both the U.S. and Montana constitutions, but that it also is a far better alternative for Montanans than if the compact is rejected and the tribes are left with no alternative other than to file their claims in the Montana Water Court to seek the clarification of their water rights.
Gov. Steve Bullock has also extensively reviewed and analyzed the CSKT water compact and has come to the same conclusion — that the compact defines and quantifies the rights of the tribes while also protecting Montana’s farmers, ranchers and water users from expensive litigation that would likely continue for decades.
The compact has gone through a great many changes since it was last considered by the 2013 Legislature. Although the 2013 compact was a good agreement, it needed some adjustments in some areas that were deemed appropriate and necessary to providing an assurance that the compact serves the best interests of Montana and the tribes. Since the last legislative session, Attorney General Fox and Sen. Chas Vincent from Libby have carefully scrutinized the compact in order to address the concerns voiced by the opponents of the 2013 compact and to remove any doubt that the interests of all Montanans are clearly represented and protected.
The current compact will ensure that irrigators receive water at the same level as their historic consumptive use. It also provides irrigators a guaranteed delivery entitlement, which can be transferred with the land through sale or when the property is passed down from one generation to the next.
By providing for the protection of existing water rights, the compact also protects private property. Experience has shown that uncertainty pertaining to water rights can decrease the amount buyers are willing to pay for property by 9 to 12 percent of the property’s appraised value. By preventing costly litigation that would cause uncertainty, the compact ensures that property values are not adversely impacted.
The compact, as it is currently structured, obviates the likelihood that, absent the compact, individual farmers, ranchers and water users, as well as the tribes, will expend millions of dollars on litigation that will inevitably continue for decades. It also allows those individuals who wish to file claims to do so, even if the compact is approved by the Montana Legislature. Passing the compact also leaves the option to pursue litigation up to an individual claimant — whereas failing to approve the compact will leave no other alternative but expensive and time-consuming litigation in state and federal courts.
Additionally, the compact includes many concessions on the part of the tribes, which will yield a far more advantageous result for Montana’s irrigators than if the tribes are forced to file their claims and enter into a court adjudication process that can be fraught with uncertainty and delay.
As a former Montana governor and attorney general, I know that the process of settling tribal water rights is difficult and challenging. But, I also have no doubt that failing to do so will not only be exponentially more costly for Montana taxpayers and the tribes, it will also continue to be a source of stress and strain to our communities and relationships as well. As a result, I would strongly and respectfully encourage our legislators to approve the water compact between the Confederated Salish and Kootenai Tribes and the state of Montana.
Marc Racicot is a former Montana governor and attorney general.