© 2013 Concerned Citizens of Western Montana

The Montana Reserved Water Rights Compact Commission was created by the Montana legislature to “conclude compacts for the equitable division and apportionment of waters between the state and its people and the several Indian tribes claiming reserved water rights within the state.”  Their website references the process for accomplishing that objective:

Quantification, or the determination of the size of a federal reserved water right for the state adjudication process, requires the Montana  Reserved Water Rights Compact Commission (RWRCC) to reach an  understanding with the federal agency holding the water right about the purpose for which the specific federal reserve was created. The parties  must then come to agreement as to how much water is necessary to satisfy  the purpose of the reserve.

Quantification sounds like a fairly straight forward process, yet in the CSKT compact, it’s non-existent.  Instead of identifying the purpose of the reservation and quantifying the amount of water necessary to fulfill those specific purposes, the CSKT compact does something different.  It gives senior water rights to nearly all of the water of western Montana, and attempts to “protect existing water users (except for farmers)” through the wording of the compact documents.

WHY HASN’T THE COMMISSION PROVIDED A CLEARLY DEFINED QUANTIFICATION?

  • Because the governor and the compact commission leadership bought into the notion that the “right to take fish in common with the citizens of the territory” equates to water rights for massive amounts of water off the reservation.
  • Because the governor and the compact commission leadership allowed the CSKT to begin with the premise that the tribe owns all the land and waters within the exterior boundaries of the Flathead Reservation.  They use this flawed premise to rationalize their blatant attempt to rewrite the history of homesteading on the reservation in the thousand plus pages of compact documents.
  • Because over thirty years of “negotiations”, the compact commission figured out that it could be “creative” in finding solutions to these “complicated” water rights situations.  They’ve become pros at the logistics of pulling  the wool over people’s eyes with finely tuned talking points, threats of litigation and “legal speak” that the average person cannot possibly begin to understand.
  • Because at a 2011 Clark Fork Basin Task Force meeting Jay Weiner, attorney for the compact commission said “if the reserved right is quantified numerically, it will likely be larger than the available supply.”
  • Because they used a method called the “REVERSE QUANTIFICATION APPROACH”.

WHAT’S “REVERSE QUANTIFICATION”?

We recently came across an old article from the Charkoosta News WATER RIGHTS NEGOTIATIONS ON THE FLATHEAD INDIAN RESERVATION dated 11/21/2002.  It discusses the CSKT’s 2001 Proposal to the State, designed to establish their negotiating position, and says the following about quantification:

Primarily the State has negotiated water rights with the eastern Tribes by a method called the “reverse approach.” In this approach, first there is a process of quantifying or measuring the amounts of water on the reservations that non-Indians will need-currently and for the future. These claims to water are commonly referred to as junior water use rights. Once these amounts are determined, and junior water users’ rights are protected, the Tribes are left with the remaining amounts of water. Chris Tweeten, Chairman for the Montana Reserved Water Rights Compact Commission says this process has worked well so far, but that the differences in water availability throughout Montana makes each negotiation different.  “The compacts we have completed so far have been in the eastern part of the state which is an area where water is very scarce,” Tweeten said. “With the Blackfeet and the Flathead Tribes, water availability is not going to be a major limiting factor.”

Wait a minute.  These “negotiated” water compacts are supposed to quantify the CSKT’s water right, not everyone else’s.  What in the world is going on here?

We see this is little more than a compact commission sleight of hand.  Doesn’t estimating how much water is needed for existing uses of non-Indians and giving the rest to the CSKT ensure there will be limitations on the exercise of property rights by placing strict limitations on future growth and development?

The numbers tell the story.

If this compact is ratified, it will allow Montana to secure from the tribe a measly 11,000 acre feet of Hungry Horse water annually for growth and development needs.  On the other hand, the tribe will receive rights to somewhere between 48,000,000 and 52,000,000 million acre feet of water for fish and wildlife purposes, with a maximum of 179,000 acre feet designated for irrigation, but only if irrigators agree to relinquish their project water right to the CSKT!!!!

11,000 acre feet per year for the state compared to 50 plus million acre feet for the tribe.  What is wrong with this picture?  How is it that a compact commission, tasked with quantifying the tribe’s water rights, gets a free pass for it’s failure to do so?

Why did the compact commission attempt to give Montana a compact that does little more than give the federal government control of the waters of western Montana?

Why does Governor Bullock call this a “fair agreement”?

Is there something else going on here that we need to know about?

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