Complex water rights issue deserves scrutiny
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The Flathead Joint Board of Control is hosting a very important public meeting June 21 at the Joe McDonald Center in Pablo. I urge all irrigators and interested people to attend and learn about the stipulation agreement, ask questions and give their comments.
I am a legislative member of the Montana Reserved Water Rights Compact Commission, the state agency charged with negotiating water rights agreements with Indian tribes and federal agencies claiming federal reserved water rights in Montana. A federal reserved water right is a water right created under federal law, as recognized by the U.S. Supreme Court in a 1908 case called Winters v. United States, which arose from a dispute over the Milk River in northern Montana. These rights are sometimes known as “Winters” rights. These federal Winters rights differ from water rights created under state law in two important ways. They have a priority date of the date the Indian reservation or federal enclave (such as a national park or a wildlife refuge) was created, rather than the date on which water was first put to beneficial use. And they are not measured by reference to beneficial use, but rather by the amount of water that is necessary to fulfill the purpose of the reservation or enclave. Because of these differences, it can be very challenging to integrate these Winters rights into the state law system. There are two basic ways to do so: litigation or negotiation.
Recognizing the extensive costs, long timeframes and uncertain outcomes associated with litigation, the Montana legislature chose to have Montana negotiate rather than litigate to achieve final quantifications of these Winters rights when it created the Compact Commission in 1979. The legislature assigned the commission the task of reaching agreements (known as “compacts”) to settle the federal reserved water rights claims of the tribes and federal enclaves in Montana. The Compact Commission consists of nine members, four appointed by the governor, four legislative members (one from each party in both the House and Senate), and one appointed by the Attorney General. To be effective, each compact the commission agrees to must be approved by the political branches of government of all sides – the Montana legislature, the U.S. Congress and the respective tribe, in the case of Indian compacts, and the Montana legislature and the appropriate federal agency, in the case of non-Indian compacts. Each compact must also then be issued as a final decree by the Montana Water Court, after the provision of notice to the public and an opportunity to object.
The Compact Commission has concluded compacts with the tribes of six of the seven Indian reservations in Montana, and is presently engaged in active negotiations with the Confederated Salish and Kootenai Tribes and the United States to resolve the CSKT’s water rights claims. These negotiations have been ongoing for over a decade. The CSKT, the State and the United States share a goal of having a compact in time for public review and approval by the Montana legislature during the 2013 legislative session. To reach this goal, we need to come to agreement concerning the CSKT’s rights both on and off the Flathead Reservation.
One of the Compact Commission’s critical objectives is to ensure that, as we recognize the water rights of CSKT, we also protect holders of state law-based water rights to the greatest extent possible from the exercise of those tribal water rights. In parallel with the Compact Commission’s work, the CSKT, the United States and the Flathead Joint Board of Control have been negotiating an agreement (known as the “stipulation”) that would spell out the relationship between the CSKT’s instream flow rights and the water rights used on the Flathead Indian Irrigation Project. The FJBC recently released a draft of this stipulation to the public for review and comment before the FJBC makes a final decision about entering into that agreement. Although the State of Montana is not a party to the stipulation, the document is available on the Compact Commission’s website (http://dnrc.mt.gov/rwrcc/Compacts/CSKT/Default.asp). The Compact Commission views the stipulation as an important part of ensuring protection for existing water users in the context of a settlement. The Compact Commission also expects that a successful settlement will include a commitment from the CSKT not to use their water rights to make call on any holder of a valid state law-based water right for a non-irrigation purpose, and to include protections for irrigation users outside the FIIP as well.
We need to reach agreement on off-reservation water rights because the CSKT are unique among the tribes in Montana in having language in their treaty with the United States (the 1855 Hellgate Treaty) that has been held by courts to secure for the Tribes’ rights to water both on their reservation and for the protection of stream flows at their “usual and accustomed” fishing places off the reservation. The Compact Commission has made a proposal to the CSKT regarding their claims for off-reservation water rights, and the CSKT recently responded with a counterproposal. These documents are available on the Compact Commission’s website.
We also need to address how water rights will be administered on the Flathead Reservation after a settlement is concluded. The CSKT has proposed a unitary administration system, under which all water use on the reservation will be regulated by a single entity, known as the Water Management Board. This board would be composed of five members, two of whom would be appointed by Montana’s governor, two by the CSKT Tribal Council, and the fifth selected by the other four appointed members. To be eligible to serve on the board, a person would have to be a resident of or engaged in business on the Flathead Reservation. If we are ultimately successful in these negotiations (as we anticipate), the rules of the road for this board to follow would be spelled out in a body of law (collectively referred to as the “ordinance” or sometimes as the “Law of Administration”) that would be adopted into both tribal and state law. This ordinance presently remains a work in progress, but drafts of it have been released for public review and comment, and are available on the Compact Commission’s website listed above. We anticipate finalizing a draft of the ordinance in time to allow for full public review and then legislative approval during the 2013 legislative session.
The Commission welcomes input from the public on our work. Please do not hesitate to contact me or any of the Compact Commission’s staff if you have questions or comments please contact me at dansalomon12@gmail.com or 675-0150. I look forward to keeping you informed as these negotiations continue to progress.
