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Elements of the Quantification

Based on the purposes of the reservation, the following is the most likely scenario quantifying the Tribes’ federal reserved water rights in the state adjudication proceedings.  It would require the United States and the Tribes to conduct investigations aimed at proving up water resources necessary to fulfill the purposes of the reservation. In this regard, the federal reserved water right would be confined to the reservation.  The elements of the federal reserved water right quantification would include:

Practicably Irrigable Acreage (PIA).  Enough water to irrigate all of the Tribes PIA which would include acres historically irrigated and those that could be practicably irrigated (future).  We estimate that there are at present 10,000 acres of historically/presently irrigated land and up to 50,000 acres of lands that could be practicably irrigated.[1]  Sources of water: Flathead River and tributaries, Flathead Lake, deep ground water.[2]  All but the deep ground water would carry an 1855 priority date. Estimated amount of water: 200,000 AF

    1. The standards for determining PIA include studies of soils, economic and engineering feasibility, and the amount and source of water.  We believe that the Tribes have already performed these studies and are ready to submit their PIA claims.
    2. Instream Flow for Fisheries.  A minimum flow regime to support fishing on the Flathead Indian Reservation would be limited to naturally occurring streams and rivers where fish were historically present.[3]  No canals or ephemeral streams would be designated for instream flow. The flow regime would adjust for wet, normal, and dry years, and would consist of seasonal flow regimes.[4] Source of water:  Flathead Lake, River and tributaries.[5]  The priority date of these instream flows would be 1855. Amount of water: unknown
      1. The standard and most accurate method applicable to the Flathead Indian Reservation is most likely the Incremental Instream Flow Methodology (IFIM) and those studies would have to be completed by the United States to ensure its acceptance and validity in a court of law.[6]  We believe that some IFIM studies have been completed on the Flathead Indian Reservation.
      2. Wetlands and Alpine Lakes would most likely be included in this award.  The source of water for the wetlands would need to be determined.  Historic wetlands in existence before the irrigation project would carry a priority date of 1855; other more recent wetlands would carry priority dates of the time in which they were formed.  Constructed wetlands would carry a priority date of the date they were created.
      3. Domestic, Industrial, and Municipal Uses.  The Tribes would be awarded enough water to meet existing domestic, industrial, and municipal uses based on existing population and uses.  Enough water to meet future potential population growth and potential future industrial development would be claimed.  Source of water: existing sources plus deep ground water.  The date of priority of the water right would be the date these sources of water were used for these purposes.  Amount of water: unknown
      4. Kerr Dam. It is suggested that the Tribes will claim an amount of water necessary to operate Kerr Dam for hydropower purposes.  However, the operation of the Kerr Dam hydropower pool will be subject to the license conditions already existing on the facility, and subject to the priority dates of uses below Kerr Dam.  The earliest priority date for a Kerr Dam water right is 1939.  We are unsure at this time what volume of water-if any–could be claimed, as the upper 9 feet of the Kerr Dam pool is allocated to irrigation.

Flathead Irrigation Project
The Flathead Irrigation Project (FIP) is still a federal irrigation project and in all likelihood, the federal government would be responsible for quantifying the amount of water to be allocated to the FIP from surface water and all reservoirs constructed as part of the project.  However, over 90% of the FIP is irrigated by non-Tribal members whose water rights date from 1855 forward.  Many non-Tribal landowners within the project have “Walton Rights” which carry an 1855 water right and are legally managed by the State.

The water award to the FIP could consist of (a) a federal reserved water right to irrigate Indian lands within the project, a (b) project water right, including all reservoirs, to irrigate project lands of varying priority dates.  We estimate the amount of water required for all lands within the FIP would approach 1.5 million acre feet.  The distribution of water within the FIP is based on the water right priority date and historic practice.

The mechanics of determining the water rights in the Flathead Irrigation Project would most likely involve both federal and state technical analysis in the determination of Walton rights holders, other state water rights holders, and the portion of federal reserved water rights contained within the project.

The Quantification Process
The length of time it requires to quantify the federal reserved water right and the cost depends in part on how ‘hostile’ the environment is, that is the degree of Tribal resistance and the complexity. The State will have to have access to the reservation in particular to determine the Walton Rights holders and the volume of water associated with these and other state-based water rights in the FIP.  The data used to quantify the federal reserved water right will also need to be reviewed by the state. Court proceedings also depend on the challenges and the extent to which the State challenges any claims of the Tribes or vice versa.

If the focus of the initial quantification is limited to the determination of the CSKT federal reserved water right exclusively, it is possible the State could conserve resources for that effort.  The remaining balance of state water rights holders (i.e., cities, towns, individuals) could be determined at a later date.

Tribes’ Propensity for Federal Court
The Tribes would prefer that all of their water rights be determined in Federal Court, not State Court.  However, the U.S. Supreme Court and the Montana Supreme Court has already decided that the State Court is adequate to hear federal reserved water rights pursuant to the McCarran Amendment, which waived the federal government’s sovereign immunity for the specific purpose of resolving federal reserved water rights.  Make no mistake, every tribe appeals the state court decision to federal court, and it would not be different in the case of the CSKT federal reserved water rights.  The bulk of proceedings will be heard in state court.

We believe that the Tribes’ aboriginal rights would have to be filed and heard in a federal court, as all other ‘Stevens Treaty’ Tribes.  Again we do not presume that an aboriginal right to take fish translates into an aboriginal water right.  Indeed, there is more uncertainty on this issue than certainty.

The adjudication of the CSKT water rights in court is nothing to fear.  Montana has successfully defended its citizen’s rights in both state and federal court over history.  Indeed, the first Walton Rights case was heard in Montana.  Yes, the proceedings could be lengthy, and the state may have to hire specialized outside expertise and expand its Attorney General staffing.

If negotiations fail to produce a compact that can pass legal, legislative, public, and constitutional muster by 2015, litigation will be the next option.  It is nothing to fear.

We have no doubt that Montana’s citizenry would both support and appreciate a vigorous defense of the water rights and resources of the State of Montana.

[1] Land presently used for grazing could be determined to be irrigable

[2] It is unknown whether the United States would offer up any water from Hungry Horse Reservoir

[3] Since the Flathead Indian Reservation land base was diminished and the reservation opened for settlement, it could be argued that the fishing right was diminished or must be subordinated to existing uses.

[4] Only an ESA designation would change the nature of and requirements for these flows, and then the source of water for these flows could extend to Hungry Horse reservoir.

[5] Ground water may be of such different chemistry that it would not work for fisheries.