© 2012 Concerned Citizens of Western Montana

Note:  This article assumes you understand why water rights are being negotiated at this point in time for the Confederate Salish and Kootenai Tribes (CSKT).  If you don’t, please take a look at these short videos, to provide some background:

Part 1:  https://vimeo.com/42995856

Part 2:  https://vimeo.com/45990766

The very purpose of the CSKT Reserved Water Rights Compact is to QUANTIFY the amount of water necessary to fulfill the purpose for which the Flathead Reservation was created by the federal government.

To quantify something means to determine, express, or measure the explicit logical quantity of something.  A reasonable person would think that quantification would be a fairly straight forward process, after all, how much water might 5,000 people need?

Unfortunately the reality is that a variety of contradictory court rulings through the years have complicated the process immensely.  When you couple that with the fact that with each compact negotiated, tribes more aggressively push for a broad brush approach to “quantifying” the water rights, and the state of Montana’s willingness to concede all non-Indian water rights before they sit down at the table, the general population of western Montana is left with uncertainty concerning their water, property values and the ability to use their land.

To complicate things even further, reserved rights are immune from state water laws and are not subject to diversion and beneficial use requirements written into state law.  Reserved rights cannot be lost by non-use as is the case for most citizens, and “future” uses of water must also be taken into consideration.

It is our basic understanding however, that the federal government is required to submit all reserved water rights claims to the state’s adjudication process, and these rights are supposed to be limited by the “primary purpose” and “minimal needs” for which the federal reservation of land was set aside.

AN INCONVENIENT INTENT

Much evidence exists that indicates the federal government fully intended for reservations to cease to exist over time, and for Indians to assimilate into society.  Unfortunately all parties sitting at the “negotiating” table to discuss reserved water rights choose to ignore any evidence that points in this direction.

The “negotiators” at the water rights table completely ignore any history or court cases that point to the diminishment of reservations post 1855, the date of the Hellgate Treaty.

They also choose to ignore government actions such as the 1904 Flathead Allotment and the 1924 Indian Citizenship Acts, both of which should have “diminished” or eliminated the reservation over time.

They also ignore documents from the Department of the Interior that indicate in 1915, they believed this reservation no longer existed.

Additionally, in 1994 the Supreme Court ruled in Hagen vs. Utah, “Congress intended to diminish the boundaries of the Reservation when it opened lands to non-Indian settlers.”  So why would this not be the case for the Flathead Indian Reservation?

So instead, water users throughout the western United States are forced to go through a divisive process that by definition, pits neighbor against neighbor, ignores history, and gives the federal government, under the guise of trustee for the Indians, the most powerful seat at the negotiating table.  Our government in effect, has created a class of super citizens upon which no others can compare, represented by all three seats at the table, and no one representing the interests of the remaining citizens.

We should also remember, it would not be unreasonable to assume the federal government fully understands the windfall given to the tribes via the Winters decision, and the money and power associated with controlling the water.  Because the federal government acts in the capacity of trustee for the tribes, we are told they hold the land and its “reserved waters” in trust for them.  A reasonable person can’t help but wonder if the tribes are being used by the federal government to control even more of western Montana than they already do, perhaps with the long term plan of restoring all of it to wilderness once again.

AGRICULTURAL COMMUNITY OR HOMELANDS?

So let’s play the game.

Assuming the government never intended for the reservations to be “temporary”, one must go through the exercise of determining the purpose for which the reservation was created before they are able to quantify the amount of water needed to fulfill that purpose.

The issue of how to determine the purposes for the creation of the reservation, as well as the allowable uses and the quantity of water required to satisfy those purposes, including future uses of water, is the basic foundation of disputes over federally reserved water rights.

Typically the debate seems to center around whether the reservation was created to become an agricultural community, however in recent years, tribes have asserted that the intention was to create a homeland for the Indians.

The courts have frequently used the agricultural community interpretation, and quantification has been based upon something called PIA or Practibly Irrigable Acreage.  This method isintended to provide a fixed calculation of future water need, rather than allowing an open ended approach leaving non-Indian water rights insecure into perpetuity.

Under PIA, Indian tribes are entitled to the amount of water needed to irrigate all practicably irrigable acreage within their reservation boundaries. These water rights have a priority date of when the reservation was established. Practicably irrigable acreage must meet two criteria:

(1) the land must be able to reasonably sustain crops; and

(2) the cost of supply water to the crops must not be unreasonable.

Quantifying the water right based on the reservation’s potential for agriculture—has been a plausible method by which Indian water rights are adjudicated, because it provides an objective standard tied to the primary purpose for which most reservations were established, including the Flathead Indian Reservation.

However, this approach has been changing as of recent years.  For all intents and purposes, the courts have ruled that the tribes get to do treaty interpretation, because they try to look at what the tribal leaders would have understood the treaty to mean in 1855.  The Confederated Salish and Kootenai Tribes use the homeland argument, throwing the PIA quantification method out the window (at least we can assume).

WATER RIGHT LIMITATIONS

There are a few federal court decisions that have served to limit federal reserved water rights. In the 1976 Cappaert v. United States of America, the Court ruled that a federal reserved water right as limited to the primary purpose of the reservation and only to the minimum amount of water necessary to fulfill the reservation’s purpose. In United States of America v. New Mexico (1978), the Court decided that the reserved water rights on national forests apply only to the preservation of timber resources and water flows. All other claimed needs were to be considered secondary purposes and the federal government would have to obtain rights like any other appropriator under state law.

Ruling such as these have served to narrow the scope of the Winters Doctrine. Let’s reiteratie:  federal reserved water rights should only include quantities of water necessary to meet the primary purpose for which the reservation was established (“primary purpose” requirement) and only in the minimum amounts necessary to meet those purposes (“minimal needs” requirement), including the ability to earn a moderate standard of living.

On the other side of the argument, state law water users frequently attempt to argue that the PIA standard results in reserved water rights in excess of those needed to achieve a “moderate living.  “This constitutes a “windfall” for the tribes, especially if they are allowed to lease their “excess” water.  Additionally, tribal leases of water appear to violate a moderate living standard, and play on the fears of non-Indians that the tribes will use their senior reserved rights to become western water brokers, selling valuable water rights.

SO WHERE IS THE QUANTIFICATION?

The parties to this compact have been negotiating for more than a decade.  One of the favored talking points of the commission is that there is much “misinformation” out there about the water compact, and the parties desire to set the record straight.  Unfortunately, the documents we find on the websites for public review are incomplete and we have yet to see any quantification of the water.

At a meeting on August 14, 2012, Alan Mikkelson, consultant for the Flathead Joint Board of Control stated that the state of Montana had indeed provided numbers quantifying the tribe’s water right.  He is not the only person part of these negotiations that tells us that quantification has taken place.

We have heard the question of QUANTIFICATION asked in a multitude of compact meetings, but to the best of our knowledge those numbers have not been supplied.

The only place we have seen numbers are within the incomplete Unitary Administration and Management Ordinance, definition 27.

“Flathead System Compact Water” means that portion of the Tribal Water Right consisting of 229,383 acre feet per year that the Tribes may withdraw from the Flathead River or Flathead Lake, which includes up to 90,000 acre feet per year stored in Hungry Horse Reservoir, with a maximum total volume consumed of 128,158 acre feet per year.

Is this the quantification Mr. Mikkelson and others keep referring to?

Considering the complexity of these compact negotiations, and the amount of time involved, surely there must be more to their quantification than providing three numbers without any explanation as to how they were determined.

AN INFORMATIONAL VACUUM

So let’s return to the recent lamentation of “negotiators” that there is so much “misinformation” out in the public concerning this compact.  Is it possible that the “informational vacuum” left by the negotiating parties is responsible for the problem they say exists?  We maintain, they absolutely are responsible for it, and have encouraged it by not providing enough information to the public concerning things like how much water is necessary to fulfill the purpose of the reservation, or defining the tribe’s right to “lease water.”

Most of the documents on the DNRC website concerning the compact documents include large holes and statements of “to be revised” or “to be completed” in them.  Residents have been wondering for ten years how this compact will impact their water rights and the ability of future generations to live in western Montana, and the compact commission has done nothing to provide that information and answer their questions.  Instead they get stonewalled with “we are still trying to quantify”, or discussions of expensive litigation.

Here we are, in the home stretch of the compact negotiation, and very large questions are still looming.  We are only a few short months from the 2013 legislative session, where this compact will be presented for approval, and numbers do not exist (at least for the public) as to the quantification of the tribe’s water right.

A reasonable person should expect that after 10 years of negotiation, enough information concerning the quantification of the tribe’s water right would be available to allay the fears of the average person concerning their water rights.  But alas, this is not the case.

By not quantifying the water right for the tribes, could a reasonable person assume the state of Montana has conceded that all of western Montana water belongs to the tribes?  Has this been done in exchange for the tribe’s promise to “protect all existing verified uses of water”?  This appears to be the case, otherwise we’d have the numbers by now.

So we ask the question again:  HAS THE TRIBE’S WATER RIGHT YET BEEN QUANTIFIED, AND IF IT HAS, WHEN DO YOU PLAN TO SHARE THAT INFORMATION WITH THE PEOPLE WHO WILL BE IMPACTED BY SUCH QUANTIFICATION? 

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