© 2013 Concerned Citizens of Western Montana

This is installment two of a three part series explaining the some of the issues and concerns with the existing proposed Flathead Water Compact.

The Critical Review of the CSKT Compact,  published last week, is intended to remind the public of the flaws with the existing compact, and to lay a workable and strong foundation for the Alternative Comparative Compact, a second document that was also published last week.  These two documents are the result of a collaborate effort of several former and current legislators and Concerned Citizens of Western Montana.  The comparative compact was developed to show what a good compact would have looked like had the state of Montana been well represented in these “negotiations”.

In Part 1 we talked about the recitals and assumptions in the compact that paved the way for the existing compact.  Covered in this article is another significant concern about the now Governor endorsed compact, its failure to quantify the federal reserved water right for the Flathead Reservation.

WHAT QUANTIFICATION?

For each water compact “negotiated” by the Montana Reserved Water Rights Compact Commission, the commission is tasked to:

1) determine the purpose for which the federal reservation of land was created, and
2) to determine how much water was necessary to fulfill that purpose.

This process is known as QUANTIFICATION, and it typically follows a rigorous standard and process serving to resolve the federal reserved water rights only for the land that was set aside or reserved.

After more than a decade of negotiations, the Flathead Reservation Water Compact presented to the public in late 2012 included a twist.  Rather than quantifying the on reservation federal reserved water rights, the commission gave in to demands for all the water on the reservation and proceeded to include off reservation waters for good measure as a “feel good” item.  The science, we heard, was based upon the desire for “robust rivers”, not necessarily the needs of the fish.  It was the state that proposed the off reservation water rights to the tribe.

This unbelievable capitulation was rationalized by the commission through the use of a very liberal interpretation of the Stephen’s Treaty language in the Hellgate Treaty and relying on very selective and expansive court cases as justification for their concessions.

Had it not been for the efforts of Concerned Citizens and the Western Montana Water Users Association, astute legislators, and the involvement of the public, they might have gotten away with it.

HOW MUCH WATER?

No one’s argued that the tribe doesn’t have a federal reserved water right, but reasonable people want to see the quantification in the context of what it means to their current situation, and to future growth and development.  So we ask the question, HOW MUCH WATER?

  • How much water is available in the Clark Fork and Kootenai River Basins?
  • How much water in these basins is being awarded to the CSKT in this compact?
  • How much has been spoken for in the state water claim and permitting process for these basins?
  • Will the compact close the basins in question, and what would that mean to future growth and development?

Instead of providing the public with this information, the commission continues to be noticeably silent.  How is it possible the governor, negotiating parties and compact proponents can call it a fair agreement if they don’t have the information necessary to make that determination?

When the public review and comments were released to the public in October 2012, Jay Weiner, attorney for the commission explained this lack of information:

 “Article Three, that’s the quantification article.  What this does is identify the various categories of water rights the tribes have that were recognized.  One of the things about this that you will notice as you look at the document, is there are not a lot of numbers in it.  Most of the other Indian compacts that we’ve done, have the quantification numbers up front.  And the numbers in them reflect gross numbers on the face of article three.  What we are doing here instead, and the reason we’re doing it here instead, is frankly we learned in doing the other compacts, is that putting the numbers on the face of the compact is an important part of getting the settlement, but what ultimately makes these settlements implementable and administrable, is to actually have the water right abstracts.”

In case you were wondering, or thought you missed it, he never explains why the numbers were not on the face of the compact.  He goes on to say if you want to know the parameters of the tribe’s water rights, you must refer to the abstracts.

We took up Mr. Weiner’s challenge to go through the 1,000 or so pages of abstracts, only to be criticized for attempting to estimate the numbers they refused to provide.  See our quantification pulled from the water abstracts here:

Comparison of Tribal Water Compacts in the state of Montana

We wonder, if all other Indian compacts included the numbers and this one didn’t, is it possible the gross numbers were excluded because they would have awakened people to the real scope and magnitude of this compact?

PROTECTING SOME BUT NOT ALL “EXISTING USES”

Time and time again, the commission conveyed to the public that the tribes made major concessions by agreeing to protect existing uses of water.

So exactly how much protection does the compact provide?  Without environmental or economic impact studies, it’s impossible to determine exactly how well anyone will be “protected” in this agreement.  But careful reading of the compact documents indicates that not all existing uses are protected.

For example, the Flathead Irrigation Project Water Use Agreement (FIPWUA)  was touted by the commission to be a major piece of irrigator protections, yet the front pages of the document require farmers to forever relinquish their project water rights to the tribe in exchange for an inadequate, one size fits all, unguaranteed allotment of water that will be meted out of the tribal bucket.  In many cases, the amount of water received by farmers will be less than what they already receive.

In February 2013, District Court Judge CB McNeil ruled this agreement an unconstitutional taking without compensation.  This decision was appealed to the Montana Supreme Court who ruled on other components of this lawsuit.  The unconstitutional taking language was not addressed.  See:

McNeil Decision 02-15-13
Supreme Court Opinion

Will wells or municipal waters be protected?  Again, without impact studies, we don’t have enough information to know.  We do know however, the compact includes the following language in its recitals:

“WHEREAS, the Parties agree that there is a clear hydrological interrelationship between the surface and groundwater of the Reservation, and each use of water on the Reservation may affect water use by all water users on the Reservation;”

How long before we see moratoriums on new wells throughout western Montana to protect federal government / tribal instream flows in dry years?   It’s happening in Washington and Oregon, and could very well happen here.

We also must question the protections afforded for existing surface water rights.  In our Peeling the Onion Part 1, we pointed out the following disclaimer on an OFF RESERVATION SURFACE WATER RIGHT FOR IRRIGATION WITH A MAXIMUM FLOW RATE OF 85 GALLONS PER MINUTE:

” This right is subject to all prior Indian reserved water rights of the Confederated Salish and Kootenai Tribes in the source of supply.  It is the Tribe’s position that the exercise of junior water rights either within or outside of the exterior boundaries of the Flathead Indian Reservation may affect the reserved water rights of the Tribe within the exterior boundaries of the Reservation.  It is the Tribe’s position that the economic investments made in reliance upon this right do not create in the appropriator any equity or vested right against the Tribes.  The appropriator is hereby notified that any financial outlay or work invested in a project pursuant to this right is at appropriator’s risk.  The issuance of this right does not reduce the appropriator’s liability for damage caused by the exercise of the right.  It does not make the Department liable for damage caused by the exercise of the right nor is the Department liable for any loss to the appropriator caused by the exercise of senior reserved water rights.”

Will this water user’s existing use of water be protected?  What does it say about future uses, and who in their right mind would want to buy property in western Montana with that language casting a shadow over their water and private property rights?

WHAT HAPPENED TO THE STATE OF MONTANA?

For decades, the state of Montana stood firm on protecting the water rights of its citizens. We believe this was the case as late as 2008 as evidenced by this memo from John Tubbs, the current director of Montana’s DNRC.

The Tubb’s memo was intended to set clear side boards for negotiations, but the commission moved away from these guidelines, giving in to federal government / tribal demands for ownership and control of the waters of western Montana.

The commission tells us that they negotiate on behalf of the governor, and the governor tells us this is a fair agreement.  In our book that means this compact is a poor reflection on the Compact Commission, and also on Governor Bullock and former Governor Schweitzer.

Was the failure of the commission to provide a true quantification of the federal reserved water right, and their refusal to complete economic and environmental impact studies intentional?

While we cannot say for sure, we do know that by not providing this information, the commission created an “INFORMATIONAL VACUUM” that conveniently allows them to say they can see “no foreseeable instances where this compact would hurt western Montanans.”

We wonder if a serious investigation of the leadership of the Compact Commission is in order.

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