PABLO – They saved the toughest for last, but now – almost 34 years after the Montana Legislature created the Montana Water Rights Compact Commission – the people of Montana have their last proposed compact to review.
Negotiating teams for the state, the United States and the Confederated Salish and Kootenai Tribes announced Thursday they have completed a proposed compact.
It was released Thursday on websites for the state and CSKT. A dozen meetings, where public comment will be taken, will commence the week after Thanksgiving.
The fact that nine of those 12 meetings are being held in communities off the Flathead Indian Reservation tells you this compact is unlike any the state has already completed with six other tribal governments in Montana.
Language in the Hellgate Treaty of 1855 gave the Confederated Salish and Kootenai Tribes “a strong legal basis to assert water rights off the reservation,” explained Jay Weiner, staff attorney for the compact commission.
Among other things, the treaty gives the tribes the right to hunt and fish in their traditional locations.
“How are courts going to interpret that?” Chris Tweeten, chairman of the compact commission, has asked. “The rights of tribes regarding instream flows off the reservation?”
The 1855 date supersedes all others, and, as Weiner noted, “first in time is first in right.”
The negotiations have been an attempt for the state and tribes to settle such questions before they wind up in potentially prolonged and costly courtroom battles where neither side can predict the outcome.
The proposed settlement, Weiner went on, “tries to recognize those rights in a way that balances those rights alongside the ability of people who are using water to continue to use that water.”
Negotiations, which first began in the 1980s but were cut off as all sides awaited decisions in lawsuits that would affect a compact, were re-started at the turn of the century.
For eight years now, all sides have met on a monthly basis, knowing there were no guarantees if they didn’t agree on a compact to submit to the upcoming Legislature.
The compact commission “sunsets” out of existence after the Legislature adjourns, next summer.
The settlement quantifies the rights of the tribes on and off the reservation, and provides for the administration of water rights on the reservation.
Weiner said the tribes agreed not to make a call against anyone already using water for any purposes other than irrigation, be it for domestic uses, stock, commercial, municipal, industrial or recreational.
It also, he said, “builds in protection for existing irrigators” and “protects existing water users throughout western Montana.”
Part of the years of discussions included the proposed creation of a water management board to deal with new water users on the reservation. As proposed, it would consists of two members appointed by the governor, two by CSKT and a fifth member selected by the first four.
All would have to be people who live on the reservation, Weiner said, who also meet certain professional criteria and experience.
“The idea is for it to be a locally driven solution,” he said. “If it goes forward it removes a huge cloud” concerning water rights.
The three parties released the Proposed Unitary Administrative and Management Ordinance, with minor changes from an Oct. 3 draft based on public comments, and seek public comment on it as well.
The compact tackled “a lot of complicated issues,” Weiner said. “It took time to make meaningful progress. Now, we need to hear from the public whether we hit the mark.
“We think we have,” he went on. “We certainly think we accomplished the twin goals of appropriately quantifying the tribes’ water rights in a manner that protects existing users in western Montana.”
After digesting the public comment, the compact commission will meet on Dec. 19 to decide whether to forward it to the Legislature for approval.
The U.S. Congress must also approve it.
It’s the last of 16 such compacts the commission was charged with completing back in 1979. In addition to half a dozen with Montana’s other tribes, nine have been completed with federal agencies such as the National Park Service and U.S. Forest Service.
The lack of this compact, Tweeten has said, would lead to a free-for-all in the court system over water rights.