©2013 Concerned Citizens of Western Montana
This article is the first in a series of reports that introduces the Draft Proposed Alternative CSKT Compact. The proposed alternative is a collaborative effort between Concerned Citizens of Western Montana and several current and past legislators, and was written as a comparative document to demonstrate that other alternatives to the existing CSKT Compact do exist. Despite the Compact Commission’s assertion that it was either this compact or litigation, the proposed alternative demonstrates that there were in fact other options that could have been developed that would have been more acceptable to and considerate of State interests.
The Critical Review and the follow-up articles show clearly that the State did everything to accommodate the CSKT and little to secure the local or regional protections and assurances that are the hallmark of any water negotiation. It was as if the negotiations regarding the federal reserved water rights of the CSKT instead followed a different agenda that saw as its goal the federal control of land and water across western Montana. Other goals seem to propose the break-down of traditional decision-making structures (the UMO), state boundaries (all land in federal status regardless of state law), and individual property ownership and rights (conditions in water permits).
The Proposed Alternative CSKT Compact shows what a basic federal reserved water rights compact should look like if state and citizen interests were considered in the effort to develop a fair and equitable water rights settlement with the CSKT. This proposed alternative does what the Compact Commission was directed to do. The alternative contains:
- A quantified federal reserved water right based on the purposes of the CSKT reservation and the common ‘measuring sticks’ used to estimate the amount of water required. For the Flathead Reservation, the primary purposes appear to be agriculture and fishing, hunting, and gathering.
- A dual state-tribal administration system with a Compact Board similar to the other Tribal Compacts in Montana
- Maintains private ownership of land and use of water
- A provision for the joint state-tribal use of water from Hungry Horse Reservoir
- Complete rehabilitation of the federal irrigation project and dedication of water savings to Tribes
- Agreement on Kerr Dam power, revenue, and operations
- Use of deep ground water for future development
Notice that there is no FIP water use agreement. It is unnecessary to this alternative Compact and functioned as a red herring, distracting people from the theft of the underlying water right characteristic of the existing Compact.
The proposed alternative Compact does not include off-reservation Treaty rights but instead contains language where the State recognizes aboriginal treaty rights exist and reaffirming the State’s commitment to the protection of fish and wildlife habitat. The threshold reasons that off-reservation aboriginal treaty rights are not included in the alternative compact include:
a) the resolution of federal reserved water rights is a McCarran Amendment proceeding so the state is authorized only to hear matters of federal reserved water rights on federal reservations
b) a right to take fish does not automatically translate into a water right
A final major change in the alternative compact is the structural arrangements and payments from the federal, state, and tribal parties. The State’s contribution in the proposed alternative Compact focuses on securing benefits to Montanans more attuned to the local and regional circumstances. The federal contribution will include the complete rehabilitation of the federal irrigation project—a federal responsibility— instead of threatening irrigators with unreasonable demands of more instream flow. We suggest a number of concessions the Tribes could make—and be paid for—that would secure the support of local residents, County Commissioners, and importantly, the state legislature.
We hope that you will find the proposed alternative useful, and we urge you to support this alternative, comparative document as a starting point for the development of a fair and equitable settlement of the federal reserved water rights of the CSKT.
Here’s the Proposed Comparative Compact
We’re also circulating a petition in support of the Alternative Comparative Compact. We’d like to ask you to show your support of this effort to provide a compact that will work for everyone in western Montana, by signing and mailing the petition to the address on the bottom of the petition. Share it with as many people as possible: Petition of Support