The recent proposal made by opponents of the Confederated Salish and Kootenai Tribes Water Compact seeks to replace the long-negotiated agreement with a one-sided proposal that is illegal, illegitimate and unconstitutional. While being peddled as “a people’s compact” or “the mending fences act,” this proposal is an attempt to give the federal government greater control over Montana’s valuable water resources, while disregarding the constitutional authority of Montana’s popularly elected legislature.
The proposal from compact opponents was crafted entirely behind closed doors. There was no public input and no stakeholder review. Additionally, the proposal completely excludes the key parties required to create a legitimate legally binding compact — the state of Montana, the Confederated Salish and Kootenai Tribes, and the federal government. In order to define the federally reserved water rights of the tribes and to settle the legal claims of the CSKT, a legal agreement, or settlement, must be reached between these three governments. Without such an agreement, the CSKT are required by law to pursue their claims in the Montana Water Court to quantify their water rights. What’s worse, an attempt to force the proposal from compact opponents on the tribes or the state could jeopardize the authority of the Montana Water Court and the statewide general stream adjudication process.
By jeopardizing the CSKT Water Compact, the opponents' proposal will put Montana water users at risk by creating uncertainty, unleashing a wave of litigation, and costing Montana farmers and ranchers millions of dollars in unnecessary legal fees. Without the CSKT Water Compact, water users across Montana will be forced to spend decades in the Montana Water Court fighting to defend their individual water rights against tribal claims.
The opponents of the CSKT Water Compact would rather put control of Montana’s water resources squarely in the hands of the federal government. Their proposal disregards the tribes and the state of Montana and instead gives control of water management decisions to the federal Bureau of Reclamation.
In contrast, the CSKT Water Compact goes to great lengths to limit excessive federal control of Montana’s water. It even contains provisions that will help protect the endangered bull trout, through local water management to avoid the Endangered Species Act enforcement actions. Not surprisingly, the opponents' proposal fails in this regard too.
Finally, the CSKT Water Compact actually provides access to water in the federally controlled Hungry Horse Reservoir in northwestern Montana; water that will be used for the benefit of all of Montana. Under the proposal from compact opponents, the feds would maintain control of that water.
The proposal presented by compact opponents is bad for water users and bad for the people of Montana — plain and simple. All Montanans should oppose this dangerous and ill-conceived idea, and encourage members of our congressional delegation to do the same.
Wilsall Republican Nels Swandal served in the state Senate and previously was a District Court judge.