GOT WATER? HOW ABOUT THE RIGHT TO USE IT?
This blog is intended to provide a means for western Montanans to learn about the Flathead Reservation or Confederated Salish and Kootenai Tribes Federal Reserved Water Compact negotiated between the state of Montana, the federal government and the Confederated Salish and Kootenai tribes.
This product of more than a decade of negotiations is a 1,200 plus page document that will impact everyone living in western Montana. Do not be complacent. Do not be fooled. It is not just a Flathead Indian Reservation issue.
This site was established as a means to communicate to people throughout western Montana, and should they so choose, to express their opinions, concerns, comments, and suggestions about the compact.
The final compact includes 3 important documents and a multitude of water abstracts / appendices you should be aware of and informed about:
The Reserved Water Rights Compact
This document is supposed to “quantify” the federal reserved water right for the Flathead Indian Reservation. The current proposed compact was completed in February 2013 and consists of roughly 1,400 pages with the appendices and maps. Something striking about the compact is that it does not provide the quantification of the amount of water necessary to fulfill the purpose of the reservation. This is the very purpose of negotiations.
The compact gets off on the wrong foot beginning with an incorrect definition of the reservation that paves the way for the expansive taking of water within reservation boundaries: “all land within the exterior boundaries of the Indian Reservation established under the July 16, 1855 Treaty of Hellgate, notwithstanding the issuance of any patent, and including rights-of-way running through the Reservation.” This flawed premise ignores the private property of 80% of the reservation’s population that is non-Indian, and is used by the state as the foundational base upon which this compact is built. It is used to rationalize giving all water running through and under the reservation to the CSKT. Additionally the compact gives the federal government time immemorial water rights for every drop of water in Flathead Lake, it forces the relinquishment of ALL the water in the Flathead Irrigation project, and concedes significant instream flows with various priority dates throughout 11 counties in western Montana in the Clark Fork and Kootenai River basins.
The compact commission has refused to do any impact studies on these documents to help the public and decision makers such as legislators understand its environmental, economic and legal impacts. In other words, they have not provided enough information for people to truly understand its implications.
Remember, for all intents and purposes this is a forever document, and we only have one chance to get it right.
Flathead Irrigation Project (FIP) Water Use Agreement
The Water Use Agreement (WUA) for the Flathead Irrigation Project was negotiated between the Flathead Joint Control Board (now defunct) and the United States / CSKT - this document was once touted to be an important part of the settlement because it presented a “major piece of irrigator protections.” It was intended to address a large piece of the puzzle: how water rights and usage will be defined for the Flathead Irrigation Project going forward.
The current iteration of this document requires irrigators RELINQUISH their project water rights to the tribe (note the word relinquish, not make junior), in exchange for money for improvements (maybe), and an allotment of water that many irrigators say will not be enough for their operation to survive. Litigation on this component of the compact has led to a district court judge ruling this agreement to represent an unconstitutional taking without compensation. While the Montana Supreme Court subsequently overturned portions of this ruling, the “unconstitutional taking” language still stands.
The lawsuit and subsequent ruling forced compact commission discussion of ”other options” to this agreement. The state has conveyed to the public this is a “private” agreement that they are not part of. FOIA requests concerning this agreement, and comments made by the irrigation district attorney indicate otherwise.
We have asked if this agreement is merely a red herring because the compact is supposed to be about quantifying the federal reserved water rights for the tribe, not irrigator’s water rights. It has served to focus people on talking about how much water irrigators need for their operations rather than discussing the fact that irrigators were being forced to relinquish their project water rights, and that all water in the project was being given to the tribes.
The Unitary Management Ordinance
This document will also be included in the compact as an appendix. It forever banishes the state of Montana from administering water within the exterior boundaries of the reservation, and is the most egregious aspect of the compact. It proposes a Unitary Management Board that will determine how all water issues (state, federal and tribal) are managed within reservation boundaries. It also is a blatant violation of the equal protection clauses of the Montana and United States constitutions.
If approved, it will set a completely new precedent and will place 23,000 non-Indians living on the reservation under tribal jurisdiction for their water rights, and has far reaching implications in our country.
If you live within the reservation boundaries, it’s imperative that you understand this document and the impact it will have on existing and new uses of water going forward. Don’t let the state of Montana surrender your constitutional rights and protections concerning water rights to a political and likely tribal jurisdiction.
NOTE: DO YOUR OWN HOMEWORK ON THIS COMPACT. TAKE NOTHING AT FACE VALUE. WE CERTAINLY DON’T HAVE ALL THE ANSWERS, BUT PROMISE TO DO OUR BEST TO PROVIDE YOU WITH INFORMATION TO UNDERSTAND THE DIRECTION THIS IS HEADED.
The compact documents are available on the DNRC website for public viewing: http://dnrc.mt.gov/rwrcc/Compacts/CSKT/
WE STRONGLY ENCOURAGE YOU TO CONTACT THE COMMISSION WITH ANY QUESTIONS, COMMENTS AND CONCERNS YOU MIGHT HAVE CONCERNING THIS COMPACT. BE SURE TO ASK THEM FOR FACTS, NOT TALKING POINTS
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