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Off-reservation rights discussion dominates hearing

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HELENA – At an interim state legislative interim Water Policy Committee meeting last week, irrigators spoke both in favor of and against conceding off-reservation water rights to the Confederated Salish and Kootenai Tribes in a proposed water compact that was re-opened for narrow negotiation last week. Legal counsel for the Tribes made it clear that the off-reservation water rights and in-stream flow calculations already spelled out in the compact are non-negotiable, and that the Tribes are preparing to litigate for far more extensive claims if the agreement is not ratified by the state legislature in 2015. 

“Certainly we recognize that coming to an agreement in a compact is far preferential to adjudication, but we are prepared and are proceeding to file claims,” Tribes’ Attorney Rhonda Swaney said. “… The compact and off-reservation in-stream flow rights are a great, great deal for Montana. They are much smaller and in fewer places we plan to file if we have to file claims. Our off-reservation in-stream flow rights extend into eastern Montana and we will defend those if we have to. We made a great political sacrifice in negotiating the compact and accepting the narrowly defined water rights for off-reservation.” 

In the current compact there are eight new off-reservation water rights claims that are not currently in existence, according to Melissa Hornbein, attorney for the Reserved Water Rights Compact Commission, which is negotiating the compact. Hornbein said including the off-reservation water rights in the compact does not mean that the state believes the Tribes have a legal claim to the water, but that it was a compromise the state was willing to make in order to finalize the compact and close the door to future litigation. 

“This was simply the state’s proposed resolution of what we perceive to be a significant risk based on that treaty language that the Tribes would chose to file and litigate significant claims throughout both western and central Montana for off-reservation in-stream flow rights,” Hornbein said. 

Swaney argued that the Tribes’ water right is well-established and under the purview of federal, not state courts. 

“We think it is wise for you to accept them, because if you don’t we’ll have a big fight,” Swaney said. 

Attorney Hertha Lund said that businessmen and irrigators that make up a group called Concerned Citizens for the CSKT Compact are worried about how extensive the Tribes’ water claims will be if the compact isn’t signed. 

“They support this compact based on their understanding that they would be much more able to continue with their business if the compact is passed,” Lund said. “Now why would I say that? If the compact is not passed by the legislature and we don’t deal with these off-stream rights, there could be as many as 10,000 claims the Tribes would file all the way to Yellowstone and down to Dillon. That’s versus eight claim rights in the compact. Just think of that in terms of numbers.” 

Lund said the additional litigation would be expensive and might overwhelm the state’s water court. 

According to a report released by the Department of Natural Resources Commission last week, it took 8.5 years for the state’s water court to finalize 57,000 claims. Lund estimated it would take 10 to 20 years to handle the additional claims if the compact isn’t passed. 

“If we fight there won’t be enough attorneys because there are so many people who have water rights that would be implicated in adjudication,” Lund said. 

But many people testified that they want the state to reject the compact and hold firm to water rights that are off-reservation. Several argued that assigning ownership to the Tribes is an unauthorized violation of property rights. 

“I do reside in St. Ignatius, Montana within the exterior boundaries of the Flathead Indian Reservation,” David Passieri said. “I consider my land to be off-reservation and I assert that the Confederated Salish and Kootenai Corporation and/or Tribes have zero jurisdiction over my land as a result of my United States Fee Simple Land Patent.” 

Ronan landowner John Swenson made a similar argument that he doesn’t live on the Flathead Reservation, and said that the renegotiations of the compact should not be so narrow. Swenson believes the compact should be completely renegotiated to further protect private property interests. 

The narrow renegotiation of the compact is expected to take place this summer. The decision to re-open discussion was made after correspondence in March and April between Governor Steve Bullock and Ron Trahan. The renegotiation is narrowly tailored and will integrate a Water Use Agreement that was previously an addendum to the original compact. The use agreement spelled out protections for irrigators and was negotiated with the now-defunct Flathead Board of Joint Control that dissolved last year. 

The three individual irrigation districts that were part of the board have outstanding writs of prohibition that prevent them from negotiating, Swaney said. The Tribes are now negotiating the use agreement with the United States government, Swaney said. 

Some irrigators want a greater voice in the renegotiation.

“It appears we are trying to circumvent the irrigators in this equation somehow by having the BIA, the Tribe and the State work on inserting that Water Use Agreement into the document,” St. Ignatius irrigator Terry Backs said. “I don’t see how it provides irrigator protections by leaving them completely out of the equation.”

Rep. Jerry O’Neil, a Columbia Falls Republican, asked that the renegotiations evaluate the in-stream flow calculations made in the compact based on “rumors” that the amounts are incorrect. 

Swaney said this is not a part of renegotiations. 

“I just wanted to clarify that from the Tribes’ perspective we don’t intend to negotiate quantities or volumes,” Swaney said. “We just intend to move the water use agreement into the compact.” 

There may be a chance for that issue to be looked at in a three-pronged review that will investigate the economic, environmental, and legal impacts of putting the compact in place. 

The Water Policy Interim Committee assigned an individual non-partisan working group to evaluated the three areas of concern that were spelled out in a request signed by 50 legislators including Rep. Nancy Ballance (R-Hamilton) and Rep. Keith Regier (R-Kalispell).

Regier and Ballance testified that more information is needed before the water compact makes it to the floor of the 2015 legislature. The compact was brought before the 2013 legislature but did not make it to the floor. A 2015 deadline to get the compact passed looms. If the legislature does not ratify it then, the Tribes will have to go to court to stake their claims.

“The 1,300 page compact came late in the session,” Ballance said. “Not very many people read it. I’m willing to believe that still two years later not very many people have read it. I have read it twice and I have watched every proceeding … I can tell you it is still extremely confusing. It’s complex. What we need is clear answers to these very specific questions that unfortunately did not get answered in the governor’s report.” 

An economic study of the compact has been tasked to the Bureau of Economic Research at the University of Montana. The Montana Bureau of Mines and Geology will do the environmental assessment. A law professor from the University of Montana will evaluate the legal ramifications. 

More information and public education on the issue is important, most legislators and members of the public agreed. 

“I feel like there needs to be more information,” Susan Lake, President of the Montana Water Stewards said. “Quite frankly, and I’ve expressed this before, I think we are getting dumber, not smarter. We have so much anti-compact organization across the state, it’s really hard to get the message out. If you aren’t there first it’s really hard to get information out about the compact.” 


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