Don’t believe false Compact statements, look at facts
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Earlier this week, Terry Backs wrote on behalf of the Concerned Citizens of Western Montana perpetrating two false statements about the CSKT Compact. She argued first that the Water Use Agreement (WUA) is an unnecessary and illegal portion of the compact because “the CSKT do not own the irrigators’ water right and do not have the authority to dictate irrigation water use.”
The BIA and the FJBC have both filed claims to the Flathead Indian Irrigation Project (FIIP) water right in the statewide water adjudication. If there is no compact, the Tribes will likely file claims to the FIIP water right as well. Courts have consistently determined that project water rights are held by the project operator, whether that is the BIA or Bureau of Reclamation. In this case, the agreement by which the BIA ceded operation of the Project right to the CME did not hand over ownership of the project right itself. A strong argument can also be made for Tribal ownership, as BIA irrigation projects are operated to benefit the Tribes by the BIA in its role as trustee.
In any case, who has title to the Project right—a question that would only be resolved through a lengthy court proceeding—is irrelevant, because the 9th Circuit Court of Appeals has held not once, but twice, that the FIIP is a BIA project that must be operated in a way that will not harm the Tribes’ senior instream flow rights, which must be satisfied before Project irrigators receive their delivery of water. This is legal precedent that Backs and the Concerned Citizens have consistently ignored. Because of this precedent, the Tribes have a significant ability to “dictate irrigation water use.”
Contrary to Backs’ contention, the State of Montana has an obligation to provide a resolution of the competing claims of Project Irrigators and the Tribes’ senior rights in the Compact, whether or not that resolution is embodied in the WUA. The WUA as currently written protects project irrigators from the exercise of the Tribes’ senior instream flow rights, and ensures funding necessary to help repair the Project’s aging infrastructure. This funding certainly won’t be available in the absence of a compact that provides a resolution of Project claims.
Next, Backs asserts that the Compact is “fatally flawed and must be changed” because it includes off-reservation treaty rights in an “on-reservation federal reserved rights proceeding” and “further erred in giving up state water administration to the CSKT and federal government.” Backs’ first argument perpetuates a false distinction between tribal reserved rights and off-reservation treaty rights. Once again, Backs and the Concerned Citizens determinedly ignore existing legal precedent — in this case from the Montana Supreme Court — holding that the Compact Commission has authority to negotiate settlement of both on-reservation reserved rights and off-reservation treaty claims.
Separating these two sets of tribal claims would needlessly delay the adjudication process and would likely render all of west-central Montana vulnerable to a multitude of off-reservation claims by the Tribes. Under the compact the Tribes have settled for eight off-reservation rights, some of which are co-owned by the state of Montana. Without the compact the Tribes are likely to file off-reservation treaty claims for instream flows throughout western Montana and as far east as the upper Musselshell River.
Backs’ final argument — that the unitary management ordinance hands over control of all water rights on the Reservation to the Tribes — is blatantly false, which would be obvious to Backs and the Concerned Citizens if they took the time to read the Compact and Ordinance. The Board is not “designed for tribal control,” and the whole process is designed to dovetail with the DNRC’s administration of state water rights, while avoiding the bureaucracy and duplication of a dual administration system for water rights on the Reservation.
Once again Backs and the Concerned Citizens seek not to educate the public but to perpetrate misinformation about the Compact in a misguided attempt to defeat it. An attempt that will, if successful, deprive much of Montana of a viable resolution to Tribal water rights claims and subject Montana water users to years of divisive and expensive litigation.
