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Water rights negotiation draws crowd

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POLSON — The latest water rights negotiating session on June 27 turned into a marathon five-and-a-half hour meeting with a packed room and many comments and questions from the public. The Confederated Salish and Kootenai Tribes, the State of Montana Reserved Water Rights Compact Commission and the United States have been meeting on near-monthly basis for more than a decade and are slated to finalize an agreement on the issue next year.

Draft agreements are available on the CSKT and state websites. 

U.S. negotiator Duane Mecham, an attorney for the Department of the Interior, gave a presentation on the components of the proposed settlement and how they fit together. 

Mecham explained the Hungry Horse Reservoir would supplement other water sources on the reservation already being used. This hasn’t stopped folks from looking to Hungry Horse to augment flows all the way below Grand Coulee Dam for juvenile fish migration. 

“Our challenge was, ‘Could we weave through all those obligations through modeling and input from the tribes on how they would like to use that block of water?’” he explained.

Mecham also added that another chunk of compact system water will come from the Flathead River and be available over time as the need and uses arise.

Jay Wiener, attorney for the compact commission, described the negotiations by saying, “What we are doing here is trying to come up with the tribes’ needs and goals and the state’s needs and goals, and do that in a way to protect the users.”

A draft agreement for water use of the Flathead Indian Irrigation Project, which supplies irrigation water throughout the reservation and is managed by the tribes and the Flathead Joint Board of Control, is posted on both the state and tribal websites. Hard copies are available at the FJBC office in St. Ignatius, according to Alan Mikkelson, an FJBC consultant who is working on water rights.

FJBC chair Walt Shock has extended the comment period on the FIIP draft agreement until July 16. All comments should be submitted in writing.

During the public question-and-comment period, local realtor Rory Horning asked about water rights for wells drilled from 1996 to the present. 

The CSKT Department of Natural Resources and Conservation has not had the authority to permit wells since Aug. 22, 1996, Wiener said, and won’t until the compact is finalized.

Another question was asked about water rights on a 1940s hand-dug well and irrigation project water rights and whether they were junior or senior water rights. 
 
First in time, first in right, Wiener said. For lands taken out of the public domain, the priority date associated with those water rights is the date it was established. For tribal water rights,
that would be the 1855 Hellgate Treaty, which stipulated time immemorial water rights.
 
“It just means (tribal water rights) were first,” he explained.
 
As far as leasing and transfer, the tribes can’t sell the water rights because they are held in trust by the United Sates; however, the tribes would be able to have a long-term lease.
 
Compact commission chair Chris Tweeten noted that another overlay to a lease agreement could be the U. S. Congress.   
 
Other questions concerned the make-up of the management board, which is proposed to include five members, two appointed by Tribal Council, two by the governor of Montana and the last member chosen by the other four. This board would administer all water rights and authorize future water uses on the reservation. 
 
Rick Jore, Ronan, said the Tribal Council could influence not only the two CSKT appointees but also the governor’s appointees. 
 
Terry Backs, St. Ignatius, asked what would happen if the unitary management board were removed from the compact. She felt that the proposed board doesn’t reflect the fact that there are more non-tribal than tribal members living on the Flathead Reservation.
 
These water rights are unique and complicated, according to CSKT attorney John Carter. For example, if the tribes control Indian water rights, the state manages state water rights and the federal government administers the irrigation system, a landowner with a stream running through his property could face many potential conflicts.  
 
The goal is to devise a system with all water and people being equal, Carter said. Ultimately, if a person were aggrieved, he would have the right to appeal to a water board.
 
“If the board is removed from the compact, the mechanism for the compact to move forward would cease,” Carter continued. “Barring a sea change, that’s the way it will go.”
 
Several audience members questioned whether the compact date could be extended, if it’s not completed by 2013.
 
Montana Senator Carol Williams said because it was difficult to extend the date into 2013, she doubted the legislature would agree to extend it again. 
 
Tweeten agreed, saying probably two-thirds of the legislators will be new this session and would have little institutional knowledge about the compact commission. He also said the commission does not intend to ask for another extension.
 
Carter pointed out that the tribes did not ask to negotiate, but the state passed legislation in 1979 to negotiate rather than litigate tribal water rights. 
 
More information, draft documents and contact information is available on the following websites: 
www.dnrc.mt.gov/rwrcc/Compact/CSKT/Default.asp
www.cskt.org/tr/docs/nrd
 
The next negotiation session will be held Aug. 1 at either tribal headquarters in Pablo or at the KwaTaqNuk Resort in Polson. Check the CSKT website for updates.

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