Education vs litigation: Water Compact proponents, opponents take different approaches
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WESTERN MONTANA – The Confederated Salish and Kootenai Tribes hosted a day-long informational session for state legislators in Helena last week about a proposed water compact that would impact much of western Montana. At the same time, irrigators of the Flathead Indian Irrigation Project expressed little enthusiasm for the compact’s passage and unveiled a plan to “lawyer up” and proceed with a litigation process with the potential to last several years, if not decades.
The divergent paths come with little more than 200 days left until the state’s next legislative session convenes. Legislators will have one last chance to pass a compact or throw tens of thousands of additional claims into a litigation process as the deadline to file claims approaches.
“(The Tribes) have made the collective political decision that negotiation is a much better route than litigation, in time, money and social resources,” Tribal Attorney John Carter told a few dozen legislators that gathered in Helena.
As part of negotiation the Tribes took decades worth of scientific data to come up with a plan to prevent basin closure that other tribal water compacts elsewhere in Montana had created in the past.
The Tribes made major concessions in the negotiations, technical experts and attorneys explained to the legislators.
The Tribes limited their claims to west of the continental divide, although historical documents from the Smithsonian show that their aboriginal territory stretched as far east as Billings as late as the 1800s. This means the Tribes could have as many as 10,000 claims in basins where adjudication of water rights has already wrapped up in a decades-long process. The Tribes believe they have a legal claim to those waters, but didn’t want to unravel decades of the states’ work in costly adjudication, tribal representatives said.
Under the proposed compact, the Tribes will own eight currently non-existent off-reservation in-stream flow rights, most of which would be shared with the State of Montana. Other in-stream flow rights take effect in the unlikely event dams are removed from certain rivers. A few others were carefully orchestrated to have minimal impact on current water users.
All in all, the state and Tribes deemed this to be a good deal, the presenters argued.
Much of the concern for the compact has been generated by irrigators and property owners on the Flathead Reservation who use the Flathead Indian Irrigation Project for farming, presenters explained. The reservation and the irrigation project are a checkerboard of private, tribal, state, and federal ownership that would be difficult to legally and practically untangle in adjudication, tribal attorneys said.
The majority of land within the external boundaries of the Flathead Reservation is owned by the Tribes, but the majority of the population is non-tribal, with those non-tribal people owning the majority of irrigated lands receiving water from the irrigation project. The last two facts don’t matter in the water rights battle, Tribal Attorney Rhonda Swaney explained, because in Montana, water rights are tied to property rights, which is why tribal membership was equally represented in a proposed Unitary Management Ordinance that would handle water disputes within reservation boundaries. Under the ordinance, the local water management board would consist of two people appointed by the Confederated Salish and Kootenai Tribal Council, two people appointed by the governor, one person appointed by the other four, and one person appointed by the Secretary of the Interior.
“This board has been much criticized, but it is the way we do business on the reservation,” Swaney said.
The board members would have to live on the reservation, do business on the
reservation, or have an interest in reservation matters.
“That alarms some folks,” Swaney said. “ ‘Oh my god, my peers, my neighbors, are going to be telling me what to do!’ Exactly. Local residents know best.”
The board would primarily be tasked with permitting water for new uses, Swaney said. In the event someone does not agree with the board’s ruling, appropriate appeal avenues to district, tribal, and federal courts are still open.
Besides the management ordinance, tribal representatives said they have worked out a plan for the Flathead Indian Irrigation Project that will curtail a complicated legal battle that if won by either side, will likely shut down the project because of lack of adequate infrastructure.
The irrigation project is built so water runs straight through. Currently, the dilapidating project is highly inefficient at getting water to some customers, especially those at the ends of ditches, according to Tribal Council member Terry Pitts who gets water from a problematic canal. But at the end of the day, water still makes it to the irrigators in some form.
If forced to litigate, senior and junior water rights would be tangled in a mess of tribal and non-tribal claims that simply can’t be rectified in practicality, tribal attorneys said. The infrastructure is not capable of diverting the water through the jumbled claims based on priority, they claim.
“Litigation will not address the insanity of management of this checkerboard system,” Carter said. He said the project would likely have to shut down if litigation ensues.
Litigation is a last-ditch option the Tribes have tried to avoid because it is costly, time consuming, and divisive to the community, Carter said.
Nonetheless, the Tribes are preparing to make a case in court if necessary. If that day comes, those who have to go to court against the Tribes will have to litigate against the United States government, Carter said.
“Not only will the Tribes be filing claims should negotiations fail, but the United States has a federal fiduciary responsibility to Indian tribes and it too will be filing claims both on and off the reservation, unless it wants to violate its trust relationship, at which point the Tribes will sue them,” Carter said.
The Tribes have given the state and federal governments thousands of pages of information legislators can use to inform their decision, but a small amount of information has been withheld for litigation, Carter said.
“There are certain bits of information that the Montana Water Policy Interim Committee is seeking from the Tribes that they will not get and they will not get that because it is in fact part of litigation strategy materials,” Carter said. “But they will be entitled to every single piece of information that the State of Montana Reserved Water Rights Compact Commission had obtained or the DNRC has obtained.”
Suiting up
A day before the Tribes made their case to legislators to avoid litigation, the Flathead Joint Board of Control authorized its attorney Jon Metropolous to hire additional help to meet deadlines in several ongoing suits regarding water rights on the reservation.
Metropolous will tap resources within the Gough, Shanahan, Johnson & Waterman firm, to contribute knowledge of Indian and water law. The additional attorneys charge up to $190 an hour, and are expected to have a lengthy fight before them. The time and costs required led to scrutiny from some irrigators, but Metropolous said it is necessary if the irrigators want to fight for their water rights.
“The way to get it done quick is to agree to the compact and the water use agreement,” Metropolous said. “You would agree the Tribes owns the water right and you don’t. They would agree to have your wells grandfathered in, but the compact has fundamental foundations that are unacceptable to this board and I think unfounded in the law.”
Metropolous said it could be a long road that leads all the way to the US Supreme Court.
“In all candor, it will mean this stretches out a while, but your choices are either to defend your rights or not, and this board has decided to defend the rights of its constituents, the irrigators,” Metropolous said.
Commissioner Jerry Laskody said that the irrigation districts are finally “lawyering up” to defend the rights of irrigators.
The move garnered some support from constituents.
“I’m really glad to see you are taking the step to get some additional help. I think that’s a really important step forward,” St. Ignatius irrigator Terry Backs said. “As you know, these are very complicated issues … it’s too immense for one person to deal with.”
More anti-compact legal help has also been announced from an outside source, separate from the Flathead Joint Board of Control. The Mountain States Legal Foundation, a Colorado-based nonprofit, is representing Robert and Judy Harms of Hot Springs and Betty Stickel of Lonepine in a federal suit filed Feb. 27 against them and other irrigators.
The Tribes claim the suit is narrowly tailored and asks the courts to declare ownership of the water delivered by the Flathead Indian Irrigation Project.
That would violate the rights of the Harms’ and Stickel, foundation President William Perry Pendley said in a May 21 press release.
“Our clients’ land was open for entry for 105 years, and in private hands for much of that time,” said Pendley. “The water rights appurtenant to those lands were owned fully by our clients and their predecessors for decades. We will vigorously defend those rights.”
The foundation has a history of working high profile cases that challenge affirmative action and land regulation.
