Without compact, rights not protected
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Editor,
Lake County District Judge McNeil has ruled that the agreement between the Salish and Kootenai Tribes and Flathead Indian Irrigation Project is unconstitutional. McNeil held that the water right of irrigators was a constitutionally protected property right and could not be taken without their consent or without payment of just compensation.
I agree. This result should have been foreseen the by legal advisors of the tribal and FIIP negotiators. However, a relatively simple fix is available. The compact and the FIIP agreement can be amended to provide that, within a time certain, any owner of a water right on the rez could opt out of coverage under the compact and agreement. If an owner did not, this would be effective consent as required by McNeil’s decision.
Under the amendment, those owners who opted out would not be subject to any “burden” they see in the compact and agreement. Their priority date, under the state law of prior appropriation, would be as it is today. The amount of water they would be entitled to would be as it is today. In short, their legal position as regards their right to the use of water would be as it is today.
Conversely, they would not be eligible for any of the benefits of the compact and agreement. The compact gives the irrigators the same priority date as the tribe, i.e. 1855. The opt-outers would be stuck with whatever priority date they now have. The compact provides that the irrigators would benefit from a low-cost block of power. Under the compact, irrigators would immunized from a tribal call for water in times of water shortages. The agreement provides funds for the repair of the irrigation system with the tribes and the irrigators sharing in the increased availability of water. The opt-outers would not get these benefits.
Finally, the compact and agreement settle the water rights of covered water users. To that extent, they would be immune from further litigation. Their right to use water, as opposed to the covered water users’ rights and the tribes’ and federal government’s reserved water right, would still be subject to litigation before the state water board, state courts and federal courts. The tribes’ priority date is 1855. The irrigators cannot have a priority date earlier than 1900. They should remember the old adage, “Be careful of what you pray for.” Your prayer may be answered.
Franklin Ducheneaux
Ronan
