© Copyright 2013 Concerned Citizens of Western Montana
The Alternative Compact was designed to address the problems identified in the Critical Review to demonstrate that solutions could be found to these issues. This article is the final of the series about the Alternative Compact, and addresses water administration—that is, who controls the permitting, use, management, dispute resolution, and development of water for the 28,000 citizens on the Flathead Indian Reservation, 5,000 of which are also members of the CSKT.
The most serious concern identified in the Critical Review of the CSKT Compact (Critical Review) was the proposed Unitary Management Ordinance that turned over state water administration functions to a politically-appointed Water Management Board. This was called the “Grand Bargain” by Compact Commission Chairman Chris Tweeten, stating:
“We agreed to do this extraordinary thing, frankly, with respect to agreeing to subject or to remove non-Indian rights on the reservation from the jurisdiction and control of the state, and place that somewhere else at the tribe’s request.”
The Grand Bargain actually had its roots in the use of a 1996 legal decision (Ciotti) which ruled that until the CSKT quantified their federal reserved water rights, the State could not issue any permits for water use within the exterior boundaries of the FIR. Theoretically, then, after the CSKT quantified their federal reserved water rights the state would resume the permitting and adjudication process for thousands of state water users.
But the Compact Commission decided to permanently extend the Ciotti decision ban on Montana’s permitting process and instead turn water administration over to the politically-appointed ‘Water Management Board’ guided by a new water administration system staffed by the Tribes’ natural resources department. Here is Chris Tweeten explaining in his own words the origins of the Unitary Water Management Ordinance:
“To the extent that there isn’t any exclusive jurisdiction on the part of DNRC to manage the water, that’s already gone. And the Unitary Management agreement would continue to extend the status quo with respect to that. ….”
He goes on to say:
“……because we as a compact commission agreed to remove the water from state jurisdiction, the supreme court has already done that. The compact as it’s approved by the legislature would extend that, but the ultimate decision to put that relationship in place, where the Unitary Management Board would have the authority to regulate non-Indian water uses on the reservation would be an act of judgment on the part of the legislature.”
The Compact Commission used the temporary jurisdictional vacuum on the Flathead Indian Reservation, created by the Montana Supreme Court, to rationalize and justify the imposition of the Unitary Management Ordinance (UMO) on reservation residents. The problems with the UMO were detailed in the Critical Review of the CSKT Compact, which identified key items that would need to be addressed for a CSKT Compact to be successful.
Alternative Compact Solutions
One of the major criteria guiding the Alternative Compact authors was the need to maintain the stability of previous Montana-Tribal Compacts. None of the other Compacts conveyed water administration authority to the Tribe. Instead, each of the Compacts maintained a ‘dual’ administration system wherein the State manages state water users on fee lands and the Tribe/United States manages the federal reserved water right. The Alternative Compact maintains the dual administrative system utilized in other Compacts, but ‘beefs up’ the Compact Board to assist DNRC and the Tribes in implementing the settlement.
The Alternative Compact suggests that the Tribe develop its own water code to manage its own federal reserved water rights for its tribal members, the federal government assists the Tribes, and the State manages its own water users and new uses pursuant to State law. The Alternative Compact proposes that the Unitary Water Management Ordinance become the Tribal water code, or, the “Tribal Unitary Water Management Ordinance”.
An important feature of the Alternative Compact is that it maintains the current management system on the Flathead Irrigation Project (FIP) which now consists of the Cooperative Management Entity (CME) operating pursuant to a BIA-FJBC-Tribal agreement on the operation and maintenance of the project. Since the drafting of the Alternative, we have learned of significant concerns with the CME’s ‘agenda’, decision-making structure, and violations of both state and federal law in its operations of the federal irrigation project. Concerned Citizens believes that the FJBC has within its power the authority and ability to resolve these issues using the Interior Department’s annual review process and other mechanisms. The authority for state management of a federal irrigation project would have to be fully examined.
The Compact Board
As in other compacts, the Compact Board in the Alternative has been designed to help reconcile any differences between Tribal and State law in the implementation of the Compact prior to the use of the court system. In the Alternative CSKT Compact, the role of the Compact Board is expanded to serve as the nexus between State and Tribal law in implementing the Compact.
In particular, it will be necessary to find the linkages between the Tribal Water Code and State law when permitting new or changing water uses. Those linkages rely a great deal on technically assessing the hydrologic impact of the proposed use or change of use on the federal reserved water rights of the Tribes.
Similarly, new uses of the Tribes’ federal reserved water rights should be evaluated for their impact on state water users in order to identify mitigation needs including Hungry Horse That requires data the combined use of Tribal and State data to develop the appropriate technical tool for decision-making in compact implementation.
To be able to resolve differences using both law and science, the Alternative Compact proposes a Compact Board that is led by a Montana Water Court Special Master and staffed by both Tribal and State technical personnel assigned to the Compact Board. Under the Alternative Compact, the Compact Board also reports to the Montana Water Court and the state legislature on the Compact implementation.
Water administration is an important consideration in a CSKT Compact. But keep in mind that in an adjudication of water rights, the only thing at stake is the quantification of the federal reserved water right, not necessarily their administration nor the administration of state water rights. It is presumed that the State and the Tribes will manage their own water.
The Alternative Compact proposes the same system used with all other Tribal Compacts in Montana and increases the ability of the Compact Board to serve as a vehicle to effective implementation of the Compact. More importantly, it serves as a starting point for further discussions on a more equitable Compact for all.
To learn more, visit these links:
Critical Review of Compact: Critical Review of the CSKT Compact
Alternative Compact: Alternative Comparative Compact
Part 1 of this series: Confirming the Alternative CSKT Compact Quantification
Part 2 of this series: Alternative CSKT Compact: Principles of Moving Forward