Water Court stays adjudication of Flathead Basin until 2017
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BOZEMAN — Adjudication of water claims in the Flathead Basin will not take place until after January 2017, per a July 27 order issued by Chief Water Judge Russ McElyea, though the state of Montana will begin examining some claims that have been filed in two local basins.
The judge issued the stay to give the Confederated Salish and Kootenai Tribes Water Compact a chance to move through the United States Congress. The three-way agreement between tribal, state, and federal governments was ratified by the Montana Legislature in April, but it must also be ratified by the United States Congress and tribal government in order to be finalized. The compact would settle many claims in the Flathead Basin, and all claims for the Confederated Salish and Kootenai Tribes that number in the thousands.
“The (tribal, state, and federal government) requested a stay of four years to achieve their goal of compact approval,” Judge McElyea wrote in the order. “At the same time, they represented that odds of congressional approval of the compact are high during the current lame duck session, which ends in 2016. A stay of four years is well past that point and represents a substantial delay in adjudication of water rights in Basin 76L and 76LJ. A shorter stay gives the opportunity to achieve their goals and provides an earlier chance for the court to reassess the merits of the stay.”
Basin 76LJ includes most of the Flathead Basin from the Canadian border southward to Flathead Lake. Basin 76LJ includes the Flathead Indian Reservation. The deadline for issuing a preliminary decree of water rights in both basins is 2020.
In addition to issuing the stay, the judge also ordered the Montana Department of Natural Resources and Conservation to begin examination of claims that are not classified as reserved federal tribal water rights created by the Winters Doctrine. That means 450 claims filed by individual land owners in the basins will be entered in with a back log of 90,000 other claims that the agency has to examine by 2016. The 450 local claims are some of a handful in the state that have never been given a first examination because the agency was waiting to see the outcome of the water compact, Tubbs said.
Included in the examination of claims will be the Bureau of Indian Affairs’ claim to the Flathead Indian Irrigation Project and some tribal claims that were obtained by purchasing fee land from private property owners.
“They are held by the tribe, but they are claims that were developed outside the reserved water right of the tribe,” Tubbs explained.
The examination of claims could mean a number of things for private property owners.
Hypothetically, if land owners have an irrigation claim not tied to the Flathead Indian Irrigation Project, that no neighbors have filed against and meets certain parameters set out by the state, it might never have to be taken up in court, Tubbs said. But other competing claims will be flagged by the department and sent to the Montana Water Court for action.
When the water compact was presented in the 2015 state legislative session, officials who drafted the document stressed the point that the new compact, unlike a previous 2013 version, would not preclude individuals from taking the claims to Montana Water Court if the landowners wanted to go to water court to defend their claims. If passed, the compact does eliminate the need to go to water court for many individuals, with provisions to grandfather in many wells that were drilled on the reservation without legal pre-approval.
Judge McElyea’s stay will also give local irrigation districts time to make their case that the compact should be voided, because it was passed illegally.
The Flathead Joint Board of Control represents irrigators who utilize the Flathead Indian Irrigation Project. The board filed a lawsuit shortly after the compact’s passage alleging that the document should have required more than a simple majority vote for passage. That matter is pending before Judge James Manley in Lake County District Court.
