Tribal, state authorities continue work on compact implementation
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HELENA – The fired up rhetoric that reached a din during the Montana Legislature has died down somewhat since the passage of the Confederated Salish and Kootenai Compact, but state and tribal workers who did the behind-the-scenes grunt work for the document are now facing another monumental task: getting the document implemented and making sure contingency plans are in place if the United States Congress decides not to ratify it.
The compact, passed by the state legislature in April, must be approved by the United States Congress and the tribal government before it is finalized. The document is a settlement of water rights claims between the tribes, state and federal government. It creates a framework for future appropriation of water within the Flathead Reservation, where a legal vacuum for legal appropriation has existed per court order since the 1990s.
Montana Department of Natural Resources and Conservation Director John Tubbs told members of Montana Legislature Water Policy Interim Committee last week that of the dozens of water-related bills passed in the recently ended session, the water compact was one of the two most important.
“We’re starting to get geared up on the implementation side,” Tubbs said. “We were allocated $3 million for implementation of the CSKT compact and we are just at the very beginning of defining the process for distributing the funds for their intended purpose. There are three possibilities: measurement, stock water and efficiencies on the (irrigation) project.”
Tim Davis, director of the Department of Natural Resources Water Division, said that by October, a technical team for the compact’s implementation must be in place. The team will be tasked with implementing operational investments, rehabilitation and betterment projects and adaptive management strategies. A compact management committee consisting of a representative from the DNRC, tribal council, and Bureau of Indian affairs also must be put into place.
One element of the water compact has already gone into place. The Milltown Water Right, which was previously 2,000 cubic feet per second has been reduced to 1,200 cubic feet per second, with 500 cubic feet per second designated for the Clark Fork River and 700 cubic feet per second designated for the Blackfoot River. The water right on the Clark Fork River will not be enforceable for another decade, until a plan for shared shortages in drought years can be developed as the compact is implemented.
“There is more water available,” Senator Chas Vincent, a Libby Republican, said of the change in water right.
In the meantime, the Confederated Salish and Kootenai Tribes have been working to get their claims filed in the state water court. Tribal spokesman Rob McDonald said the Tribes will still comply with a state law requiring them to file their water claims by June 30. There will likely be thousands of claims for waters in streams and rivers across the tribes’ aboriginal territory based on where they historically lived and fished, according to tribal officials.
“Upon filing, the Tribes and the United States will request that the DNRC stay any action on such claims, pending action on four events (that occur with passage of the compact),” McDonald said.
Tribal Fisheries Director Les Everts told the Flathead Reservation Wildlife Board in May that his team has been down a staff member for the past year, as the biologist worked to compile scientific data for the claims. The data for the claims could be used if the compact fails and the Tribes have to go to Montana Water Court to litigate.
“The claims could be characterized as a placeholder that ensures treaty rights are preserved while waiting for congressional approval,” McDonald said.
Still pending is a lawsuit filed by the Flathead Joint Board of Control in Lake County District Court that seeks a judgment saying that the compact required a super-majority vote on the legislative floor. The Flathead Joint Board of Control represents the three irrigation districts impacted by the compact.
“Not much has happened in the case,” legislative staff attorney Helen Thigpen said.
Judge James A. Manley denied the state’s request to move the case to a Helena venue. A status conference is scheduled for June 17.
