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Proponents, opponents fight to bitter end over water compact recommendations

HELENA – After a half-year and hundreds of hours spent analyzing legal and technical aspects of the proposed Confederated Salish and Kootenai Water Compact, proponents and opponents of the agreement devoted much of Oct. 29 and Oct. 30 airing the same talking points that have dominated the conversation since the compact failed to pass the 2013 legislature.  

The concerns were heard by the state legislative Water Policy Interim Committee. The committee made 11 recommendations to the Montana Reserved Water Rights Compact Commission for consideration in the water compact that is currently under narrow renegotiation. The compact would settle the Confederated Salish and Kootenai Tribes’ Water rights claims. If the compact is not completed in the next legislative session the Tribes have stated that they will file as many as 10,000 claims as far east as Billings in the state’s water court. 

An intense summer of research ensued for the committee, which was tasked with evaluating 50 legal, environmental and economic questions asked by State Representatives Nancy Ballance and Keith Regier about the compact. More than 50 legislators signed on to having the questions answered. 

State legislative staff spent an extensive amount of time evaluating the questions and found that for the most part the technical scientific data and legal implications of the compact were sound. An economic study commissioned on the compact was not completed in time for the committee to hear its finds. 

Despite the findings that spanned more than 100 pages, Rep. Ballance and Rep. Regier said they could not support the compact because some of their questions went unanswered. 

“It would be easy to say that it was disappointing to see many of the questions about the compact were not answered,” Regier said. “But not receiving answers on the compact does give information to legislators. An example would be that the first and main questions about the compact … What is the purpose of the reservation and how much water is needed for that purpose? … It is disappointing that the compact commission or the Tribe have not talked with those who oppose the compact last session about how to improve it. It appears to me the CSKT compact will be presented to the 2015 legislature with very little change and still many unanswered questions.” 

Groups opposed to the compact gave several presentations that reiterated concerns that have been argued before: that the compact takes the water rights of irrigators and that irrigators don’t want to be placed under the jurisdiction of a water management board consisting of tribal and state representatives. 

“There is simply no factual or legal basis to conclude that the CSKT owns the water rights to other privately owned land,” Flathead Joint Board of Control Attorney Bruce Fredrickson said. 

He claimed the demands of compact opponents are reasonable and protected by the United States Constitution. 

A number of out-of-state people echoed Frederickson’s concerns, including Wisconsin-based scholar Elaine Willman and high-powered water attorney Jay Stein who practices water law in New Mexico. Stein was brought in by the Montana Land and Water Alliance, a freshly formed Polson-based corporation devoted to lobbying resources to defeat the compact. 

Stein said the compact would create a “taking of the water rights” of irrigators. 

Not so, water attorney Hertha Lund said. Lund is based in Bozeman and represents pro-compact irrigators. 

“New Mexico, Arizona has a vested right, but we don’t have that in Montana under the Water Use Act,” Lund said. “There is no taking.”

Tribal attorney John Carter also took issue with the arguments. 

“The 9th Circuit Court of Appeals … determined that the for the Flathead Indian Reservation water was reserved by the U.S. out of the larger reserved water rights for the Tribes, and therefore no individual irrigator can have a vested right unless they have satisfied the terms of Congress. And that has not happened,” Carter said.

Carter also took issue with the assertion made that the Tribes have not reached out to those opposed to the compact. The Tribes invited all legislators to a meeting about the compact this summer, Carter said. Only 20 or 25 legislators showed up. 

The next meeting of the Montana Reserved Water Rights Compact Commission was set for Nov. 5 in Polson. It was unclear what role the committee’s recommendations would play in the commission’s decisions, but time for negotiation is short. The legislative session begins in January. 

 

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