©2013 Concerned Citizens of Western Montana
Beyond the specific numbers and concepts proposed in the Comparative CSKT Compact are the more important principles of moving forward within a negotiation framework. This article is the second of three articles (PART 1) that discusses the principles behind, concepts of, and reaction to the Alternatives from around the region.
When the legislature rejected the CSKT Compact, it did not reject the idea of continuing negotiations, even with the public refusal of the Tribes to negotiate. Similarly, citizens who rejected the CSKT Compact and voiced concerns did so with the intention and hope that these concerns would be incorporated into and addressed through changes to the Compact documents, including the irrigation water use agreement involving the Flathead Irrigation Project (FIP) and the Unitary Management Ordinance. However, the Compact Commission made no substantive changes to the CSKT Compact and instead publically ridiculed opponents and dismissed citizen concerns. The Compact then failed in the 2013 legislative session because of these substantive issues that had been raised about the Compact.
So, the Alternative CSKT Compact was born of an analysis of why the Compact failed in the 2013 legislative session with an eye towards identifying what needed to change in order to pass both legislative and public muster, and how to change it. The primary criteria followed by the work group that put together the Alternative Compact included
- the directive for an equitable division of the waters between the Tribes claiming federal reserved water rights and the Citizens (MCA 85-2-701),
- principals of federal Indian law applied to the quantification of federal reserved water rights on Indian reservations,
- principles of state law guiding Compact negotiations with Montana Tribes, and
- existing information, concepts, and components of the CSKT Compact
Based on these criteria, the Alternative Compact revised definitions, quantified an amount of a federal reserved water right based on the purposes of the Flathead Reservation, provided for the Tribes’ future needs, preserved citizens’ rights under the Montana Constitution, and protected property rights. Though the Alternative Compact was never promoted as a replacement Compact, it demonstrates that a fair, equitable, and passable Compact could be developed.
Beyond the specifics of the Alternative Compact presented here, any new compact with the CSKT should have ‘sideboards’ for its resolution:
1. On Reservation-Only. Quantification of the CSKT federal reserved water rights is specific to the Flathead Indian Reservation lands belonging to the CSKT.
a. No-off-reservation aboriginal claims should be considered in Compact proceedings
2. Land Ownership and Water Rights Maintained. Maintain existing land ownership and surface and ground water rights, and water uses are main ‘grandfathered-in’
a. The waters within the exterior boundaries of the reservation are validly used by numerous individuals and entities as well as the CSKT and are not solely under federal control
3. State of Montana Retains Jurisdiction over its Waters, Uses, and Administration. A new Compact maintains a dual State-Federal/Tribal administration system and a with a Compact Board as in previous Compacts
a. The state of Montana continues to be responsible for state-based water users on the Flathead Indian Reservation
4. New State, Federal, and Tribal Contributions. The structural relationship guiding federal, Tribal, and state ‘contributions’ to a settlement requires each party to take responsibility for its own needs, for example:
a. The Federal contribution includes water from Hungry Horse reservoir, settlement of its claims with the CSKT, settlement of its claims with the irrigators on the federal project, and complete rehabilitation of the federal Flathead Irrigation Project
b. The State contribution in funding secures the things it needs for its citizens, including funds to cover in-lieu taxes from Kerr Dam to Lake County, a low cost block of power for the irrigation project, expediting permit processing, and providing economic and environmental studies of the new Compact prior to its ratification by the Montana State legislature.
c. The Tribal contribution would include cooperation on all water management issues including data sharing, effecting waivers of claims against the state; commitments to subordinate hydropower to irrigation in times of drought, and commitments not to use Flathead Lake or Kerr Dam to contest new and existing water rights upstream
We realize that the Compact Commission and the Tribes will balk at changing anything about the existing CSKT Compact. The trouble for them is that the ‘cat is out of the bag’—there are serious problems with the CSKT Compact that have not and cannot be explained and must be changed. The legislature and citizens are not going to ‘unlearn’ what they’ve learned about this deeply flawed CSKT Compact.
With a potential $1.4 billion dollars in federal funding available if a negotiated settlement is achieved, and zero funding resulting from the adjudication of CSKT federal reserved rights in the Montana Water Court, it would seem prudent to actually negotiate—make the changes that will provide the “win-win” solution that we know is possible.