© 2013 Concerned Citizens of Western Montana

This is the first in a series of articles that discuss in detail the Comparative CSKT Compact developed by Concerned Citizens and a group of current and former state legislators.  The Alternative Compact was produced as a comparative document to show what a good compact might look like and to reinforce several key points:

  • State interests were not well represented in the CSKT Compact negotiations
  • The existing CSKT Compact was/is not the only alternative to adjudication of the rights in the Water Court
  • The existing CSKT Compact violates the Constitution and laws of the State

The Alternative CSKT Compact added items that could assist the State and restructured the State’s financial and administrative contribution to reflect those needs; proposed an equally viable alternative Compact that quantifies the CSKT federal reserved water right;  and retained water administration functions within the parameters of state, Tribal, and federal law.

This article focuses on the quantification of the CSKT federal reserved water right in the Alternative Compact that followed the ‘well-worn path’ of “measuring” the amount of water required to fulfill the purposes of the Flathead Indian Reservation.  The two purposes that can be gleaned from the Treaty of Hellgate are agriculture, and the right to fish, hunt and gather on the reservation.

Water to fulfill the ‘agricultural purpose’
In the language of federal reserved water rights pertaining to an Indian reservation, the amount of water necessary to meet the agricultural purpose is ‘measured’ by the amount of water required to irrigate the reservation’s “practicably irrigable acreage” (PIA).  The test for PIA involves extensive engineering , economic, agronomic, and other studies which results in an acre-foot per acre determination for a certain amount of historic, current , and ‘future’ irrigable acreage.

We believe that the CSKT determined the amount of acreage through a gaggle of skilled engineering firms in this field, and further, believe these engineers employed the latest satellite and computer modeling technology to estimate the water use needs of crops theoretically grown for this acreage.

The Alternative Compact estimated the amount of current PIA on the reservation as 60,000 acres of currently irrigable land and 30,000 acres of ‘future’ practicably irrigable acreage, for a total of 90,000 acres.  Applying the figure the CSKT/US proposed of 1.4  acre-feet per acre, the total amount of water used to fulfill the agricultural purpose is 126,000 acre feet.

We recently found in the record of the Clark Fork  Task Force information that confirms the numbers presented for practicably irrigable acreage in the Alternative Compact.  In an October 2010 meeting of the Clark Fork  Task Force, it was reported :

The CSKT have requested 128,000 acre feet (128 Kaf) of supplementary water based on an estimate of practically irrigable acres on the reservation. Modeling by the Bureau of Reclamation indicated that this water could come from natural flows backstopped by 90 Kaf of releases from Hungry Horse without significant impacts on downstream threatened or endangered anadromous fish.

The 128,000 acre feet reflect 91,000 acres at 1.4 acre feet per acre, making the Alternative Compact’s estimate of 126,000 acre feet very close.  Our numbers will be adjusted upward based on the Tribes’ 2010 report.

Although the amount of water is measured by the amount of PIA, the Tribes are not confined to use the water for irrigation and could transfer it to another use such as instream flow.

Instream Flow Update
On the reservation, the CSKT’s Treaty-based exclusive right to fish has been found to include an amount of water necessary to support the fishery.  The Tribes began in the early 1980’s to try to secure instream flows in streams affected by the BIA Flathead Irrigation Project (FIP) and through legal action were able to order the BIA to provide minimum instream flows.

Recently we were able to find estimates of the current instream flows in place that effect the Flathead Irrigation Project, which uses natural stream courses as part of its irrigation conveyance system.  The current interim instream flow for reservation creeks affecting the irrigation project is 270,609 acre feet (see Footnote 1), and the table in the Alternative Compact will be adjusted accordingly.

Importantly, the Compact claims to increase the amount of these interim instream flows on the reservation by nearly 400% without the requisite studies that prove existing flows are not sufficient for the species.

Are the Tribes’ requested instream flow increases based on the needs of the fish?  From on the following and other remarks, we think not.  The CSKT is looking for ‘robust rivers’, not instream flow for fish.  In the October 2010 Clark River Task Force meeting, it was reported that:

These claims were based on the stream base and bank flows rather than a demonstration of the amount of water that would be put to a beneficial use for the fishery.

While there is clearly a federal reserved water right for a fishery, there is no federal reserved water right for a ‘robust river’, i.e., ‘bank flows’ as described above.

The Alternative CSKT Compact presents a reasonable path forward in crafting a settlement that could meet both legislative and public demands for equity and fairness.  Importantly, it demonstrates that the solution to the reserved water rights of the CSKT is not as complicated as the Compact Commission would have us believe.

Importantly, the Tribes reported their irrigable acreage and water volume in 2010, and the interim instream flows have been in place satisfactorily since 1987.  These are two fundamental pieces of the CSKT federal reserved water right that the Compact Commission could have built a Compact around.  Instead the Compact Commission proposed the transfer of ownership of water from the state to the federal government across western Montana, flanked by red herrings to mask the intent.

Footnote 1:  Interim Instream Flows from Department of Interior Letter dated 5/22/13