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Informational meeting on water rights draws crowd

POLSON — A public information meeting about the proposed Flathead water rights settlement drew a crowd of about 100 on Wednesday, Aug. 1. The meeting was held because all the parties involved may be getting close to settling the compact.

John Carter, attorney for the Confederated Salish and Kootenai tribes, Chris Tweeten and the state of Montana’s Reserved Water Rights Compact Commission, Duane Mecham and his team representing the United States, and the Flathead Joint Board of Control presented an overview of the water rights negotiation process. 

Although no new information was presented, irrigators, ranchers, realtors, town dwellers and state and city officials attended.

The format allowed time for individuals to talk to officials before the presentations began and  to provide a comments and questions session at the end of the four-hour meeting. 

With a sunset date of July 2013 coming up for  the MRWRCC, all parties involved are soliciting public comments on the draft agreement.  They’ve been meeting almost monthly since 2001.

The tribes made a proposal in 2008 that would protect verified uses of water for the tribes, tribal members, allottees and non-Indians. The proposal would also provide additional water to meet tribal needs, including in-stream flows.   

They also proposed a unitary administration and management ordinance, which was new for water rights settlements in Indian Country. One facet of unitary administration and management was the formation of a five-member governing board composed of two members appointed by the Tribal Council, two by the governor of Montana and the last member chosen by the other four. This board would administer all water rights on the reservation and authorize future water uses on the reservation. 

 “We think this compact is a good idea,” said Chris Tweeten, attorney for the MRWRCC.

CSKT attorney John Carter agreed, noting that the Tribal Council is committed to making the process work. 

“It’s all in draft form. Nothing is final until it’s all final,” Carter said.

Giving some background on water rights, Carter noted that in the 1855 Hellgate Treaty, the tribes reserved an exclusive tribal homeland on the Flathead Indian Reservation and retained hunting, fishing, trapping and gathering rights throughout their aboriginal territory, a unique treaty in Montana. 

Aboriginal and Indian water rights generally carry a senior priority date, cannot be lost through non-use and provide for future uses, Carter explained.

There are two ways to resolve the water rights issue, Carter said, through litigation or settlement. 

 “Status quo is not an option for the future,” Carter said.

The Wind River Reservation in Wyoming is a “picture book of how not to settle water,” Carter said, since litigation has gone on for scores of years, cost multiple millions of dollars and is still lingering on.

Carter said the settlement components are: the compact, the unitary administration ordinance, the Flathead Indian Irrigation Project, passage by the CSKT Tribal Council, the Montana legislature and the United States legislature and then on to the Montana Water Court. 

The Flathead Joint Board of Control represents approximately 85 percent of all consumptive surface water on the reservation.

John Metropolis, council for the FJBC, spoke about litigation using the numbers “30-30-0.”

Litigation takes 30 years, costs about $30 million and in the end, the positive difference will probably be zero, meaning nothing will have changed. 

“Part of our agreement,” Metropolis said, “is to have the state of Montana establish funds that will help take over some of the cost of pumping, etc. Irrigators can’t afford that.”

“I want to make something very, very clear,” he added. “We aren’t asking for a gift.”

The settlement of the contentious, complicated water rights issue deserves some help, he said, and CSKT has agreed to help rehabilitate the FIIP. 

“One thing I’m sure of — we won’t get those positives if we litigate,” Metropolis continued, meaning monetary help for the FIIP and money from the state. 

The draft agreement for water use of the Flathead Indian Irrigation Project is posted on both the state and tribal websites and hard copies are available at the Flathead Joint Board of Control office in St. Ignatius, according to Alan Mikkelson, consultant to the FJBC.

Attendees’ comments and questions included some from irrigators concerned about whether they would get enough water to sustain their crops, if their water rights would remain viable if they didn’t use them, and how the amounts of water in the compact were agreed upon. Some other questions and comments were about property rights, senior and junior water rights, the process for drilling a new well, permitting for wells and downstream claims on Montana water.

People are encouraged to comment online or in writing. Draft documents are available on the CSKT website at www.cskt.org and the state website at www.dnrc.mt.gov/rwrcc.

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