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Stick to facts about historic tribal water right compact

2013-03-20T00:00:00Z Stick to facts about historic tribal water right compactBy Chris D. Tweeten Helena Independent Record
March 20, 2013 12:00 am  • 

A few weeks ago I wrote in this space about the water rights compact between the Montana Reserved Water Rights Compact Commission and the Confederated Salish and Kootenai Tribes. In that piece I responded to a group of complaints about the compact assembled by outspoken critics of the compact. More complaints have now surfaced, and they have no more merit than the ones advanced before. Here are the facts:

1. The proposed compact is squarely within the authority of the commission. Compact opponents argue that the compact includes off-reservation rights that they say are not within the technical definition of a federal reserved right, and conclude from this false premise that the proposed compact is beyond the commission’s authority. Montana law does not make the distinction these opponents rely on; in fact, the Montana Supreme Court has squarely held that all Indian water rights are within the Water Court’s jurisdiction. Ask yourself: “Why would the Legislature include all Indian rights in the adjudication and exclude part of them from the negotiating authority of the Commission?” Doesn’t make sense, does it?

2. The compact absolutely prevents the tribes from controlling water rights throughout western Montana. The Tribes relinquish their claims to off-reservation rights in all but a handful of streams outside the reservation. The Tribes also give up their right to call any household, municipal, commercial, industrial, or any other non-irrigation rights. The Tribes have approved an agreement with the leaders of the Flathead Indian Irrigation Project that provides adequate water to irrigators on the project to allow them to irrigate their crops. Irrigators on the Flathead River system could theoretically be called for water by the Tribes, but this has never happened in the 100-plus year history of the Flathead Indian Irrigation Project, because such a call cannot, as a practical matter, be effective in securing water for the reservation.

3. There is no grand conspiracy embedded in the compact. To tackle two of the prevalent theories: A) The Tribes’ rights are held in trust by the United States, but the same thing is true of all six compact that the Montana Legislature has already confirmed. Strict legal rules bind the United States in its management of tribal trust property, as the recent Cobell settlement dramatically demonstrated. The federal government cannot commandeer the Tribes’ water to serve some other federal purpose by, for example, piping it to California. B) The Tribes cannot lease their water downstream for the use of the Bonneville Power Administration. Under the compact, the Tribes have agreed not to lease water outside the state of Montana.

4. The compact negotiations were transparent. All negotiating sessions were held in public. Anyone who wanted could place their names on a mailing list and get actual notice of all negotiating sessions. After the commission and the Tribes agreed on the framework of a compact, more than 25 public meetings have been held throughout the area affected by the compact, during which commission members and staff explained the compact and answered any and all questions members of the public posed.

5. The compact will have significant impacts on western Montana water users, but not in the way that its detractors claim. It will protect all persons who have claims in the Water Court adjudication from years of expensive litigation, some of which will be paid for by Montanans’ tax dollars and some of which will be paid for by the water users personally. It will remove a huge potential litigation load from the Water Court’s docket, making it more feasible for the adjudication to complete its work within the time frames provided by the Legislature. It will provide a process for securing new water rights on the Flathead Reservation and adjudicating disputes over existing water rights that has been completely absent for the past 15 years because of adverse court decisions. It will remove a massive cloud of uncertainty that surrounds water use on and around the Flathead Reservation. It will pave the way for the infusion of millions of dollars for the betterment of the Flathead Indian Irrigation Project, providing for upgrades that simply will not happen without the compact. It will also enable improvements to fisheries on and off the reservation, all to the benefit of Montana’s recreational and biological heritage.

This compact is the product of years of careful work by dedicated public servants, both state and tribal. It deserves the Legislature’s approval. Please contact your legislators and tell them you support this historic agreement.

Chris D. Tweeten is the chairman of Montana Reserved Water Rights Compact Commission

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