Water compact legislation brought before Senate committee
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People from across the Flathead Reservation and the state packed themselves into the state Capitol last week to give testimony on a proposed bill that would approve the Confederated Salish and Kootenai Water Compact.
The compact quantifies the Confederated Salish and Kootenai Tribes’ water rights, and has been in negotiation for decades. If the compact does not pass by June 30, the Confederated Salish and Kootenai Tribes will be forced to file their claims in the state’s water court. The Tribes have indicated they intend to file as many as 10,000 claims as far east as Billings, potentially reopening adjudication of basins where water rights have been decreed final in the state’s decades-long water adjudication process.
Senator Chas Vincent, who is carrying the bill, explained how a previous version of the bill was negotiated and failed in the previous session.
“I went into the 2013 session still unconvinced that what we were doing was right,” Vincent said of why he couldn’t support the bill then.
Vincent and other members of the state’s Water Policy Interim Committee spent much of 2014 researching and attempting to validate the compact. A technical review by the Montana Bureau of Mines and Geology found the water science behind water allocation in the compact to be reasonable. A legal review by the state’s staff also was conducted.
At the same time Governor Steve Bullock and former Confederated Salish and Kootenai Tribes Chairman Ronald Trahan agreed to reopen negotiations with the federal government to hash out an agreement that better addressed concerns, primarily of irrigators who utilize the Flathead Indian Irrigation Project.
At the end of negotiations, the compact included additional provisions that allow the project irrigators to receive a written water delivery right, creates a plan for shared shortages between the Tribes and the irrigation during drought years and implements a technical team meant to verify that water delivery meets historic use. Additionally, the new compact includes language that defines a court of competent jurisdiction for future legal battles that might arise over water on the reservation, but does not preclude people who think they are getting the short end of the stick from the compact from going to Montana Water Court to fight for their water claims to be decreed a water right.
Tribal Chairman Vernon Finley pointed out that the Tribes have agreed to devote to the irrigation project much of the $55 million in settlement monies designated in the compact bill and a yet to be determined amount of federal dollars that will be available if it is ratified.
“From the position of a sovereign nation we have given up much,” Finley said. “There is much monetary, legislative and governmental power that we have that we are offering up …. in the spirit of being good neighbors, in the spirit of cooperation, even though historically that neighborly attitude and that cooperation has not been met with a lot of positive response. But we are offering it up because our children and our grandchildren don’t need to be fighting this battle. We’re neighbors, we are fellow citizens and we will cooperate.”
Finley said not everyone is in agreement on the issue, but that probably means the negotiators achieved their goal.
“You might hear that this is a one-sided agreement in our favor,” Finley said. “It is not, and when both sides feel like the agreement isn’t totally what they want then a wise man once said that you probably have a pretty good one.”
A number of Flathead Reservation residents, counsel from the governor and state attorney general’s office, the state’s farm bureau leadership, and out of area farmers from the eastern part of the state testified in favor of the bill.
Another line of on-reservation residents and out-of-area farmers also testified against the bill, claiming it was unconstitutional and does not guarantee delivery of water that is equal to historic irrigation use.
Flathead Joint Board of Control irrigation commissioner Boone Cole complained that the board was not involved in the renegotiation of the compact, despite several attempts. The board represents 2,300 irrigators on who utilize the Flathead Indian Irrigation Project.
“The concerns of our irrigators — which helped defeat the compact in 2013 — were met with silence,” Cole said. “We practically implored the parties to listen to us, to address the concerns of our irrigators, to no avail.”
A meeting with representatives of the governor and state attorney general’s offices in October 2014 was not fruitful for the board because state officials determined the boards’ demands were not reasonable.
Irrigation commissioner Tim Orr said the irrigators are still fighting the compact because they believe something is being taken away from farmers.
“We’ve all put our blood, we’ve put our sweat, we’ve put our tears, we’ve put our lives and beings into our farms,” Orr said. “I just can’t see giving up a water right and property rights and rights to our courts that have been fought for years in this nation.”
