Without water compact, irrigators unprotected
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Editor,
The Montana water compact commission has successfully negotiated 17 water compacts. Their purpose was to negate the harshness of western water law, save the citizens and the state of Montana litigation fees and protect nontribal water user’s water rights.
The 18th and final compact with the Confederated Salish and Kootenai tribes is on the verge of failure. The compact, if ratified, would have done its job. Off the reservation, the state and tribe had negotiated rights, including co-ownership of some with Fish, Wildlife and Parks that protected existing users and would lead to no changing of water management off the reservation. On the reservation, irrigators would have been given the water they needed, and all wells and water not included in the irrigation project would have been adjudicated through the state process. All parties were protected.
Without the compact, the tribes will assert their off-reservation rights to in-stream flows in Western Montana, and possibly east of the Continental Divide as well. On the reservation, there are more than 700 wells in legal limbo with no right; all other wells and water rights will be adjudicated through the state but however they are decreed in the adjudication, they will be unprotected from the tribes’ 1855 Hellgate priority date and their time immemorial Stevens Treaty right.
The irrigation project may end up being a checkerboard of Walton Rights (rights arising from the purchase of allotment land with an 1855 priority date), homestead land with an early 1900s priority date and other land with possibly even later dates. Added to that, the tribe would assert their in-stream flows. Tribal in-stream flows would be given the senior water right, followed by allotment land, which would receive its water second; and homestead land would receive its water third. All irrigators will have less water to irrigate with.
All water users with a priority date before 1973 will go to the state water court; all other rights will be determined by the DNRC at the individual water user’s expense.
We are now in uncharted territory headed who-knows-where.
Susan Lake
Ronan
