One of the more contentious issues of this legislative session has been the Confederated Salish and Kootenai Tribes Water Compact.
The compact is the culmination of several years of work by the Montana Reserved Water Rights Compact Commission and interested parties both on and off the Flathead Reservation.
A version of the compact came before the 2013 Montana Legislature and was rejected. The Compact Commission went back to work to revise the 2013 version and bring this final version forward. The 2015 version has passed the Senate and is working its way through the House.
The controversy surrounding the compact likely finds its roots in the complexities of Montana water law, the interpretation of the 1855 Hellgate Treaty and lingering tensions between the tribes and non-tribal members living on and off the reservation who have claim to water that originates there.
The compact deals with reserved water rights, which in Montana are a bit different from regular water rights. Reserved water rights are held by a federal reservation. Don’t think Native American, think federal government. In Montana, there are compact deals with agencies like the National Park Service, the U.S. Forest Service and the U.S. Fish and Wildlife Service, along with all Indian reservations in Montana except the Flathead.
These compacts are negotiated by the Compact Commission and then ratified by the Montana Legislature.
Specific to the compacts with the Indian reservations is the core premise of Montana Water Law -- first in time, first in right. This means the oldest rights are the most senior and take precedent over water rights with later priority dates. Legal battles over water rights have established that some water rights have a priority date of time immemorial, which essentially means they go back longer than any others.
The CSKT claim water rights that either have a priority date of 1855, when the Hellgate Treaty was signed, or time immemorial. Both dates would make them the most senior right on any stream on or off the reservation. Most of the rights the tribes could claim off the reservation are for instream flow. The tribes can claim these rights for fishing purposes throughout a large part of Montana. The logic being that long before settlers and explorers from the East began putting down roots in the Big Sky country, the tribes here were using the water in the lakes, rivers and streams for subsistence purposes. Courts have recognized these rights in the past and there’s no indication they won’t in the future. The rivers the CSKT could claim instream water rights on include the Yellowstone, Missouri, Clark Fork and Bitterroot, along with many others in southwest and western Montana.
However, the tribes have not filed claims on these waters while the Compact Commission has worked to find a suitable agreement. The final date for the tribes to file these claims -- and they could total near 10,000 separate water rights claims -- is June 30 of this year.
The conundrum is that while the Compact Commission has been busy negotiating the various compacts, Montanans have also been busy working through their own water right claims on rivers and streams around the state. On many rivers, water right holders have worked through the long arduous process of adjudication, which, through the Montana Water Court, establishes water right size and priority. Should the tribes file for instream flow rights, the water right holders on the various rivers will have to go back to court to defend their own water rights and try and prove the tribes don’t have claim to the water they say they do.
This re-adjudication process could cost Montanans more than $75 million.
The goal of the CSKT Water Compact is to avoid this lengthy process by simply quantifying the tribe’s water rights in one complicated and lengthy document.
Detractors say current water right holders on and off the reservation are giving up too much with this compact. We disagree. We believe the best way to deal with this mess is to have a document that settles the issue all together.
Under the current CSKT Water Compact, the tribes do receive some instream water rights off the reservation, but each right will be held jointly with Montana Fish, Wildlife and Parks and is currently an instream flow right. There will be no significant changes to off-reservation water users.
On the reservation the compact is far more complicated as it addresses water rights and operation for three large irrigation projects along with instream flow rights. However, this negotiated compact is still a better way forward than a lengthy court battle.
Water rights in Montana will always be controversial, but we implore the House of Representatives to pass the CSKT Water Compact and send it to the Gov. Steve Bullock. It’s the best way past the controversy and will finally sew up the reserved water rights in Montana.