By Chris Tweeten
The recent “Another View” piece by Gene Erb and Skip Biggs regarding the water compact negotiations on the Flathead Indian Reservation requires an informed rebuttal, although the piece is so shot through with falsehoods and inflammatory innuendo that it’s difficult to find a place to start.
Perhaps the beginning would be best: the state of Montana, through the Reserved Water Rights Compact Commission, has for several years been conducting monthly water rights negotiations, open to the public, with the Confederated Salish and Kootenai Tribes and the United States. The negotiations exist under the legal authority provided by the legislature in the 1979 Water Use Act amendments, the same legislation that created the statewide Water Court adjudication.
The legislature decided as a matter of policy to attempt settlement of federal and tribal water rights out of court rather than through lengthy, costly and divisive litigation.
Since 1985, the Compact Commission has completed 15 settlements that have earned the approval of the Montana Legislature, saving Montana taxpayers and water users millions of dollars in litigation costs in the process, and clearing years of time-consuming litigation off the Water Court’s docket. The commission expects to bring three more settlements to this legislature. If they are ratified, the commission’s work will be complete, and it will sunset as of July 1o this year.
Which brings us to the Flathead negotiations. Erb and Biggs first raise the specter of the federal government disestablishing the Flathead Reservation and inheriting the tribes’ compact water rights. They provide no evidence for this theory, which is directly contrary to federal Indian policy as pursued by every administration, Republican and Democratic, for several decades. Congress has not disestablished a reservation in half a century. The compact negotiations are not a precursor to a federal water grab.
Next, they claim that there is no legal basis for recognizing a right for instream fishery flows under the Hellgate Treaty of 1855. They omit mention of the fact that the federal Ninth Circuit Court of Appeals has recognized the validity of the Tribes’ instream flow rights, in line with a number of other cases holding that the treaty language they quote created on- and off-reservation water rights for fishery flows.
Erb and Biggs next argue that recognition in the compact of the tribes’ instream rights would cause a taking of water rights granted by the federal government under the 1908 amendments to the Flathead Allotment Act. Montana has followed the law of prior appropriation — first in time, first in right — since before statehood. Courts have never viewed enforcement of a senior water right, such as the tribes’ 1855 treaty rights, against a junior right, such as a 1908 homestead right, as a taking. There is no reason to believe the courts would start doing so with this compact.
They claim that the compact allocates all of the groundwater on the reservation to the tribes, and allows the tribes to meter wells and charge for groundwater. This is patently false. There is no provision in the compact documents — none — that gives the tribes ownership or control of all groundwater on the reservation. To the contrary, the compact recognizes and protects existing privately held groundwater rights and provides an administrative process for the public to secure new groundwater rights in the future. There is also no provision in the compact documents — none — that allows the tribes to meter any wells or charge anyone for their groundwater.
Erb and Biggs assert that there is no basis in the Hellgate Treaty for tribal off-reservation water rights. False again. The courts have interpreted the same language as exists in the Hellgate Treaty to provide a basis for instream flows for fisheries in the tribes’ historical fishing waters, whether on or off the reservation. In the proposed compact, the tribes in fact give up the right to make such claims on dozens, if not hundreds, of streams in exchange for a mere handful of instream rights, most of which are shared with Fish, Wildlife and Parks’ existing instream rights. Without the compact, Montanans would be in litigation with the tribes for years over the off-reservation claims that the tribes have agreed to forgo in the proposed compact.
Erb and Biggs conclude by urging Montanans to “research the issues instead of relying on other’s [sic] agendas used to sway your opinion.” With this statement, at least, I can wholeheartedly agree. Repeating false statements, often and loudly, does not make them the truth. The proposed compact documents are posted on the compact commission’s web page, www.dnrc.mt.gov/rwrcc. Please don’t let the misinformed, the agenda-driven, and the knowing purveyors of bad information create false impressions about this historic compact. Look at the documents for yourself. Compact opponents like Erb and Biggs are certainly entitled to their own opinions about the settlement. They are not, however, entitled to their own facts.
Chris Tweeten is Chairman of the Montana Reserved Water Rights Compact Commission