By Senator Verdell Jackson, Flathead County

 This is a response to Representative Daniel Salomon who used Compact Commission talking points instead of facts to rebut my recently submitted letter to the editor on the problems I see with the proposed Confederated Salish & Kootenai Tribes water compact.

Equal protection under the law is guaranteed in our Constitutional Republic by the Montana and U.S. Constitutions.  This means that all the laws apply equally to citizens, and does not mean, as Salomon states “everyone is treated equally under the new Tribal “Unitary Management Ordinance” that would control water administration on the reservation. Montana manages river flows and administers water rights for the benefits of its citizens and is accountable to the rule of law developed by the legislature. Montana cannot turn over its constitutional and statutory responsibilities to a sovereign nation with its own constitution and different laws that have no accountability to the Montana legislature or its citizens. It violates the equal protection clauses of the U.S. and Montana Constitutions.

Private property rights are vigorously protected by the Montana and U.S. constitutions. Salomon acknowledges that under the proposed CSKT Compact, private water rights belonging to irrigators are to be transferred to the Federal Government in trust for the CSKT.  The Compact should protect individual irrigation rights, not take them away. It a violation of Article II of the Montana Constitution and the US Constitution to take state based water rights from citizens on the reservation and transfer them to the CSKT or the federal government

Under the proposed Compact, the Tribe wants more water for in-stream flow on the reservation based on a “robust river” standard, not on the survival of fish standard.  The increased in-stream flow water will come from limiting each irrigator to 1.4 acre foot of water for each irrigated acre, (now you know why the individual water rights are important) and from water efficiency measures such as lining canals. Under state law, (which would no longer apply) transferring the use of water from irrigation to in-stream flow requires evaluation of the environmental and economic impacts before a change of use permit can be issued.

Salomon seems to forget that the CSKT off reservation water rights are not federal reserved water rights.  The Hell Gate Treaty secured for the Tribes the “right to take fish in common with the citizens of the Territory”, not a water right; other wise, a group of citizens of Montana, could get a water right to protect their favorite place to fish. The Tribes’ right is in common with the citizens of the Territory. Off-reservation claims do not meet the definition of a federal reserved water right which by law is restricted to the reservation land. No off reservation water rights have been previously transferred in a compact. 

The purpose of a federal reserved water rights compact is to determine the amount of water needed to meet the purpose of the reservation.   That has not been done.   When the amount of water needed to fulfill the purpose of the reservation is quantified (justified), there is enough water in the Flathead Basin to meet those needs without taking water from people who grow our food.  The Flathead Irrigation Project needs more water not less.

The Federal Government has water in Hungry Horse dam and all other Federal Dams in Montana which can be leased for future development and certainly can be used to fulfill Tribal needs.  I started the process to lease 100,000 acre feet of water out of Hungry Horse Dam for future development with Senate Bill 376 in 2007.   A cost allocation study set the cost of Hungry Horse water at $10 an acre foot.  The executive branch of the State of Montana reduced the request to 90,000 acre feet and placed it in the CSKT Compact.  Research models show that 85% of the time the release of the 90,000 acre feet of water from Hungry Horse would not affect other uses. The Tribe wants to take that water and lease it back to Montanans for $40 per acre foot.  The original request for the 100,000 acre feet was based on the water needed for future development for the next 50 years for the entire Clark Fork Basin.  Dividing the 90,000 acre feet equally between the State of Montana and CSKT would go a long way in developing a fair and equitable Compact as required by law.

                The Montana legislature at present does not have enough help to properly and responsibly review this proposed compact, 1200 pages, and House Bill 629, 130 pages, because state government has provided no legal, environmental, regulatory, or economic assessments to reveal the impacts of this compact on private property values, individual state based water rights, future grow, and economic development.  No legislator in good conscience could consider passing a document of this magnitude without this information

 

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