I live in an area of Montana impacted by one of three water rights agreements currently being negotiated by the Montana Reserved Water Rights Compact Commission expected to go to the legislature in 2013. These compacts are part of a process that came out of a 1908 Supreme Court case known as the Winters Decision, ensuring federally established lands, including reservations, have adequate water to fulfill their designated purpose.
Compacts for six of the seven tribes in Montana have been settled, and the commission is in the home stretch on the final agreement with the Confederated Salish and Kootenai Tribes (CSKT). This agreement is the subject of my letter.
This compact has been in “negotiation” for more than a decade. During that time, public interest and media coverage has waned, and is almost non-existent. This is troubling, because a cursory review of what’s on the table indicates that the state is negotiating away the water rights of people throughout western Montana with complete and utter disregard of its responsibilities to its citizens, or for the cost associated with the diminishment of those rights. Also, by even entertaining many of the proposals and documents on the table, it appears Montana is bargaining away its obligations to administer water rights within the state for all of its citizens.
The proper process of negotiating such an agreement includes first reaching an agreement with the federal government about the purpose for which the reservation was created. Next the parties must agree to how much water is necessary to fulfill that purpose through a process known as quantification.
This process appears not to have taken place, and as such, is an unacceptable relinquishment of the states’ responsibility to its citizens.
In addition to not establishing the proper framework for negotiations through quantification, here are just a few of the many troubling aspects of this compact that you should be aware of:
- Using a very broad interpretation of the Steven’s clause in their treaty, the tribe is requesting time immemorial instream flow rights for most major tributaries and streams in western Montana. This presents the possibility that instream flow rights controlled by the tribe could trump existing irrigation and other uses of water, harming property values and the economic lifeblood of many communities and landowners in an area covering 350,000 people.
- A Unitary Management Ordinance is being considered as part of this agreement. Proposed by the tribes, this document attempts to define how water rights are administered for all residents within the exterior boundaries of the reservation, tribal and non-tribal. The reality is that this agreement appears to be designed to take the administration of water out of the state’s control, and is an attempt instead to move it to a local board with the very likely potential of becoming tribally controlled. This document circumvents Montana water law, and if it becomes part of the compact, will result in non-tribal citizens being under the jurisdiction of the tribe for their water needs. This document is unprecedented and unconstitutional. Montanans should be very concerned about it.
- The stipulation agreement appears to be designed for time immemorial instream flow rights to trump any uses of water by the Flathead Irrigation Project. This agreement also makes several questionable concessions that indicate the Flathead Joint Board of Control is willing to give away significant rights of the irrigators in exchange for money, and an allotment of water that many say will put them out of business. The state calls this a “private agreement” and is sitting by allowing this relinquishment of rights to take place.
The reason for this article is to urge people to get informed about this compact. It has significant, unprecedented and far reaching implications. Time is running out, and if you don’t educate yourself and get engaged now, you might find your water rights compromised, your property values greatly reduced, and your local economies in worse shape than they’re already in.
Start with these two videos, and then check out the DNRC website. Review these documents, talk with your neighbors. Do not accept the “talking points” at face vaule, and question everything about this agreement. Weigh in with your representatives and the compact commission before this agreement is finalized and sent to the legislature for ratification.
Water Rights Part 1 https://vimeo.com/42995856
Water Rights Part 2 https://vimeo.com/45990766
We urge central or eastern Montanans to check out the other active compacts in your area. Do the documents reflect that the state has your best interests in mind, or are they also rolling over and playing dead with your water rights?
These compacts are an overreach by the federal government into the lives of Montanans via control of the water with the consent of the state of Montana. Water is a basic necessity of life, and he who controls the water, controls the people, or make their lives very miserable.