©2014 Concerned Citizens of Western Montana

Part I

DSC_4144They had more than 10 years to develop a compact that was a fair and equitable settlement of the federal reserved water rights of the Confederated Salish and Kootenai Tribes (CKST).  They had a year of public meetings and workshops to win the ‘hearts and minds’ of Montanans.  And, after the Compact failed in the legislature due to lack of information upon which legislators could make an informed decision, the Commission had seven months to produce a report that would responsibly answer the questions raised by the legislature.  The Governor directed the Commission to do a professional report that would serve to answer questions and inform the legislature in case this compact was brought before the legislature again–either in special session or in 2015.

And they failed spectacularly with the release of the 39-page glossy Governor’s Report on December 12, 2013.

We have long said that if the proposed CSKT Compact was the great thing it was touted to be, the Compact Commission would not have to resort to tactics that obscure the truth, skirt open meeting laws, practice intimidation, threaten litigation, and demonize citizens in order to get public support and legislative approval.  And, if it was a good compact, that they could produce a document that clearly described the benefits of this Compact, not just “what the Compact doesn’t do.”

This post begins a series of articles which will examine the Governor’s report on the CSKT Compact and evaluate whether it did or did not answer the public’s questions.  As one person said eloquently in the January 6, 2014 hearing on the report before the Water Policy Interim Committee (WPIC), the Governor’s report was a “political response to factual questions raised by the public.”

Introduction to Concerned Citizens’ Review

The Governor’s letter vetoing Senate Bill 265 and directing the completion of this Report expressed disappointment that

 “…the Legislature failed—for the first time in the 34-year history of the Commission—to adopt a state-tribal compact negotiated in good faith.  The proposed water compact is the culmination of years of negotiation, legal, and technical work, and public involvement.  Despite the importance of this compact to the economic future of western Montana, the compact was never allowed a vote on the floor of the Senate or the House…instead the Legislature proposes to extend the deadline for the suspension of the adjudication of tribal water rights, presumably to allow for further negotiations of the CSKT claims…”[1]

While we acknowledge that the parties have been negotiating for many years, unfortunately that negotiation resulted in unproven and questionable economic benefits to western Montana, incomplete legal, regulatory, and technical work, and lack of significant, meaningful public involvement in its negotiation.  The Compact did not get to the floor of the Senate or House because there was insufficient information for legislators to responsibly evaluate and assess the proposed CSKT compact.

Like many other citizens, we were hopeful that the directive to produce a Report would enable the Compact Commission to truly address and incorporate the thousands of comments that were sent to the Commission regarding the Compact, and to use those comments to recommend changes to the Compact so that it could receive broad public and legislative support.  However, we find the Report to be unresponsive to the concerns raised in the 2013 legislative session such that the Compact is no closer to receiving broad public or legislative support than it was at the end of the 2013 legislative session.  The Report has utterly failed to provide any new information that would enable the responsible evaluation of this Compact.

For this reason, we have prepared this letter Report that we hope will compel  the production of the legal, regulatory, environmental, economic, and technical work required to achieve a fair and equitable settlement of the federal reserved water rights of the CSKT.  There are miles to go before this Compact can be readied for responsible consideration.

Our response is presented in several sections:

  • Historical Perspective on CSKT Compact Negotiations
  • The Report does not Accurately Reflect the Language in the Compact Documents
  • Governor’s Report Contains Numerous Misstatements
  • Implications of Certain Compact Provisions for Montana
  • Environmental, Economic, and Regulatory Review Required

In 2013, Concerned Citizens prepared an alternative corrective and comparative Compact that would demonstrate what a Compact would look like if (a) the Compact Commission actually represented state interests, and (b) if the Compact would follow the law regarding the quantification of federal reserved water rights as it had in every other Compact negotiated in Montana.

The Governor’s report simply ignored any suggestion that it actually quantify the federal reserved water rights of the CSKT, based on the purpose of the reservation and the amount of water necessary to fulfill that purpose.  Instead, the Commission ‘doubled down’ on its talking points, presenting Montana with a false choice:  this compact, or litigation.

Stay tuned.

[1] Letter from Governor Steve Bullock to Secretary of State Linda McCulloch, May 3, 2013, found here.