©2014 Concerned Citizens of Western Montana

One of the significant ways in which the proposed CSKT Compact differs from every other Compact in Montana, and every other litigated or negotiated Indian water settlement in the United States, is its imposition of the CSKT “Unitary Management Ordinance” (UMO) as a substitute for state water administration on the Flathead Indian Reservation.

The imposition of this water administration system on Montana citizens has been trivialized by Compact Commission members, who continue to call the UMO’s Unitary Management Board (UMB) similar to a political redistricting board, a lakeshore management board, or the FWP-CSKT board that manages wildlife issues on the Flathead Reservation.  But make no mistake–the UMB is a politically appointed board that will be controlled by the Tribes…by virtue of their control over the Governor’s appointees and their own.  The UMB, like the UMO, is accountable to no one.

This post transmits the review of the UMO conducted by Concerned Citizens of Western Montana and presented to the Water Policy Interim Committee (WPIC) meeting of July 8, 2014.

The Unitary Management Ordinance:  An Evaluation of Water Administration in the Proposed CSKT Compact

Quotes on the Unitary Management Ordinance

 “…the response is to remind the tribes about the Grand Bargain, and the fact that 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.” ~Chris Tweeten, Chairman, Montana Reserved Water Rights Compact Commission, August 2012

 “It’s a simple question. If the board’s removed from the compact, the mechanism for the compact to move forward ceases.  It’s pretty much that simple.” ~John Carter, Attorney for CSKT, October 2012, on the Compact without the Unitary Management Ordinance

 “The Unitary Management Ordinance is non-negotiable” ~Rhonda Swaney, Attorney for CSKT, June 2014

Introduction

This paper is submitted to the Water Policy Interim Committee (WPIC) by Concerned Citizens of Western Montana as an evaluation of the Unitary Management Ordinance (UMO) component of the proposed negotiated compact with the Confederated Salish and Kootenai Tribes (CSKT).  The purpose of this document is to demonstrate the foundational problems with the UMO and why it is an unnecessary component of the proposed Compact given the existing legally-based, tested, viable alternatives to it for water administration in the Flathead Compact.

We recognize that according to the Compact Commission’s (Commission) and Tribes’ negotiated agreement the UMO is non-negotiable. However, we are also cognizant of the facts of law, policy, economics, and other factors that suggest the UMO may be non-doable by any branch of state, federal, or local government. Thus it remains important to provide critical information to decision-makers so as to enable an informed assessment of the proposed CSKT Compact and whether the legislature is required to, can, or should include the UMO in the Compact. As Commission Chairman Chris Tweeten notes, this decision is ultimately up to the legislature:

… 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 in pursuit of its constitutional power. So in that sense, the state jurisdiction is being exercised, it’s just being done to vest authority in this particular body.

What is clear from this statement is that the Commission understands that the State has a constitutional duty to its citizens regarding the ownership and administration of water, that the Commission negotiated an agreement where the State’s constitutional authority was delegated to the CSKT, and that the final decision rests with the Montana legislature.

At the heart of the decision on water administration for the Flathead Compact, then, is the constitutional duty to all citizens and compliance with state and federal law. The following presents information relative to factual deficiencies of the UMO and the availability and viability of existing alternatives for water administration.

History: How the Stage was Set

The place that the legislature is in today regarding the approval of the unitary management ordinance (UMO) is a result of a series of decisions resulting from CSKT legal action against the state that ultimately culminated in the 1996 Ciotti decision preventing the State from issuing permits and changes of use on the reservation “until the Tribes quantified their federal reserved water rights”. In or around 2010, the Compact Commission decided to use a novel interpretation of this decision as a basis to promote the Unitary Management Ordinance in the CSKT Compact, which would overturn state administration and ultimately keep the Ciotti decision in place.

In 2001 and again in 2003, the CSKT announced their position that they considered themselves the owners of all the water within the exterior boundaries of the reservation. The Tribes asserted that since they were the owners of the resource, they had and should have the sole authority to administer water. The CSKT have never wavered from this position.

Currently, the abstracts of Tribal water claims contained in the proposed Compact verify that the Tribes are claiming most, if not all of the water within the exterior boundaries of the reservation. The Flathead Compact differs from all the other Tribal Compacts in Montana as in not having the quantified volume of the water right stated up front in the document. Instead the Tribes’ claims are listed in the abstracts, and they do in fact include all the water within the Flathead Indian Reservation and the tribe exerts ownership to a considerable amount of water off-reservation.

State-Federal-Tribal negotiations on interim water management plans post-Ciotti failed and in 2003 the CSKT submitted their first Unitary Management Ordinance to the Compact Commission. The UMO was rejected by the then Compact Commission. Subsequent litigation brought by the Tribes confirmed that the key to moving forward with state administration was the Tribes’ quantification of their water rights. Thus, once the Tribes water right is quantified, the State legally does not need the UMO to resume administering water for state users on the Flathead Reservation.

The Compact presumably quantifies the Tribes’ federal reserved water right. However, instead of proposing the resumption of state administration of state based water rights, the Commission negotiated an agreement that called for the state to turn over all of its authority to the Tribes’ UMO, using the Ciotti decision to claim a jurisdictional vacuum and to justify a UMO it had previously rejected. As recently as October 2012 Commission Chairman Chris Tweeten stated:

John, let me just add to that, you touched on the first part of the question about why the Unitary Board is a good idea.  On this caveat with respect to what you said, from our side of the table, going back to the beginning, I don’t think we ever conceded that dual administration would not work, on this reservation, and I think what we’re exploring to try to reach this compact, is whether or not unitary administration will work better in the context of this reservation in lieu of a dual administration work and I think we’ll just leave that question at that. 

To our knowledge, the Commission has never developed an alternative administration program based on previous models for consideration by the legislature. This has produced an informational vacuum, not a jurisdictional one.

Context and Framework for UMO Decision-Making

Whether in a negotiation or adjudication framework, the quantification of federal reserved water rights operates within the framework of history, individual state and United States constitutions, federal and state statutes, and case law. The evaluation of the UMO within this context can be tasked as four interrelated questions:

  1. Is the UMO legally required to settle the federal reserved water rights of the CSKT?
  2. Is the UMO necessary to resuming state administration of state-based water rights?
  3. Is there a reason why a dual sovereign state-tribal/federal water administration program as in other compacts would not work?
  4. Is the UMO legally, administratively, and constitutionally sufficient to implement Montana’s water administration duties and authorities for state water users on the Flathead Indian Reservation?

The first three questions can be addressed very simply and with adequate documentation to demonstrate that while the UMO may be the desired outcome of the negotiated settlement, it is not necessary to resolving the fundamental task at hand: the quantification of the CSKT federal reserved water rights on reservation. The answer to the fourth question, regarding the adequacy of the UMO as a substitute for the State’s system, relies on information gleaned from a broad scope and depth of existing law and precedent, as presented below.

  1. Is the UMO legally required to settle the federal reserved water rights of the CSKT?

No. Given the history and context of the CSKT Compact negotiations as discussed here and elsewhere, the UMO is not legally required to settle the federal reserved water rights of the CSKT either through a negotiation or adjudication. The controlling federal law regarding adjudication or negotiation of federal reserved water rights, the McCarran Amendment, defers to state administration of the water resources within its own state. Federal reservation and appropriation of water for the Flathead reservation was implemented pursuant to State law. The federal government severed its control over water resources in the states with the 1877 Desert Land Act.[2]  There is no compelling legal reason to adopt the UMO as it is an unproven, untested system that would put Montana citizens at risk because it removes them from the protection and laws of the State.

  1. Is the UMO necessary to resuming state administration of state-based water rights on the reservation?

No. The Ciotti prohibition on state administration is effective only until the Tribes have quantified their federal reserved water rights. Since the Compact Commission asserts that the proposed Compact quantifies the CSKT federal reserved water rights, technically the Ciotti prohibition is no longer effective and the state is free to resume administration of state-based water rights along the same model as every other Montana Tribal compact, where the state manages its water users and the Tribes are free to develop a Tribal water code for their water users.

  1. Is there a reason why a dual sovereign state-tribal/federal water administration program as in other compacts would not work?

No. Commission Chairman Tweeten concedes that no evidence has been submitted that would show why the dual sovereign system of administration employed in other compacts would not work. But the Commission failed to produce such an alternative water administration system modeled after other tribal compacts for consideration by the legislature and gave the legislature only one option—the UMO.

  1. Is the UMO legally, administratively, and constitutionally sufficient to implement Montana’s water administration duties and authorities for state water users on the Flathead Indian Reservation?

The overall answer to this question is also, “No”. The UMO is deficient and is not a good substitute for Montana law regarding water administration. This analysis requires a deeper study of the intent of the UMO to substitute for State law, and the statutory, legal, and policy context involved in discerning its effect on Montana’s statutory framework. In this context, and as described below, the UMO insufficient to substitute for Montana’s system, is inapplicable to non-Indian citizens, and is unnecessary to the resolution of the federal reserved water rights of the CSKT.

There are many interesting facets of this paper, which can be found here.

What Concerned Citizens found as part of this review is that no amount of additional detail provided for the UMO, or small adjustments to its contents, can change the fact that no state or federal law permits the wholesale abandonment of a class of state citizens to a new form of government regarding water use and development just because of where they live.   A negotiated settlement does not give carte blanche to any party to “work around” existing law, policy, legal prohibitions, or history.

 

 

Advertisements