© 2014 Concerned Citizens of Western Montana
Today we find ourselves faced with the first meeting related to compact “re-negotiations”. While this session is billed as a “negotiation” session, we know the Compact Commission has already held private meetings wherein they most likely have already decided what they are going to do.
So looking toward the next phase of the Compact Commission and state of Montana’s “negotiation” narrative, now is as good a time as any to reflect on exactly what more than a decade of “negotiations” have gotten us related to the Flathead Water Compact, and to make a few predictions about where it all seems to be headed.
When the proposed compact was first introduced to the public, the Compact Commission’s narrative was all about science. It is difficult to say exactly how many meetings the public sat through where we saw hydrographs and charts designed to give the impression that not only the compact numbers were reasonable, but that the state had done their own analysis of the tribe’s work, and found the numbers to be in the “ball park”.
Then, at the compact kick off meeting in October 2012, the attorney for the commission explained that one of the things we would notice about the compact was that there weren’t a lot of numbers up front. He went on to say that while those numbers (the quantification of the amount of water being awarded to the CSKT) were important, the 1,000 pages of abstracts behind the compact were more important to the speedy implementation of the compact once it was ratified. As far as the policy and law of federal reserved water rights, this was the first and likely the biggest deceit of the compact commission–there is no quantification without the number, the volume of the federal reserved water right stated explicitly “up front”.
What other points are to be taken away from this?
- The state wants the public to focus on how much water irrigators need instead of the tribe,
- The state wanted to hide the fact that the CSKT were indeed claiming ownership of all the water on the reservation, not the “amount of water necessary to fulfill the purposes of the reservation”, aka, the definition of a federal reserved water right,
- The state was unwilling to provide the quantification of the tribe’s water right so that its impacts can be analyzed and studied, and
- The compact commission was hoping to put this monstrosity on a fast track for congressional approval and implementation
Note: As of September 2014, two years later, those numbers have still not been provided by the state. We think the reason for this could be because the commission knows the real numbers are staggering, and if provided, more citizens affected by it would be opposed to the compact than already are. Furthermore, if you don’t have a number to work with, you can’t evaluate any impacts to other water users or the water supply of the federal reserved right.
SETTING THE STAGE FOR “REOPENED NEGOTIATIONS”
Over the past few months we have heard that compact negotiations would be reopened, but with no changes to the compact, and only to insert the existing water use agreement into the compact. The CSKT have been very clear that there will be no changes to the compact, and have stated as much publicly. So why would anyone have high expectations for the process the state is getting ready to subject us to?
A SETTLEMENT AT ANY COST
We recently heard that as late as last week, an attorney general’s office representative lamented that adjudication was not an avenue they wanted to go down because it might cost the state $3 million per year over the next ten years.
Our calculations show that person estimating the cost for adjudication to be $30 million dollars, yet the existing compact proposes a far greater financial cost: that the state give up all its water to the federal government, severely limit its future growth and development, and the icing on the cake, provide an additional $55 million of taxpayer money as part of the settlement. And don’t forget that as much as $12 million has already been spent on fruitless “negotiations” over the last 10 years.
What is wrong with this picture? Is what this individual said code language by the attorney general’s office that they have no interest in defending or protecting Montana’s water if a reasonable settlement cannot be achieved? We fear that the likely answer to that question is yes.
(Note: it is not the Attorney General’s decision as to whether he chooses to defend Montanan’s water rights…it is up to the people of the state and the legislature. From his response in the tribe’s lawsuit, we already know the Attorney General is weak when it comes to defending Montana)
After fifty legislators signed a letter asking for independent and rigorous studies of the compact be completed to understand its environmental, economic and legal/constitutional implications, the Water Policy Interim Committee assigned the scientific / environmental analysis to the Montana Bureau of Mines and Geology.
It was through this process that the compact science façade began cracking and we learned that the modeling used by the tribe was inadequate for its intended purpose, and instead was uses as a means to maximize the amount of water given to the tribe for instream flows.
But instead of focusing on the questions asked by legislators as the public was told they would, the Technical Working Group assigned to this project was instructed only to focus on the quantification of the irrigator’s water. Last week they came out with a report calling the tribe’s science “reasonable”, a report that effectively ignored all of the serious concerns of legislators who requested that the state do its due diligence on this compact. And, a report that contradicted the working group’s August 13 findings.
In addition to ignoring the multitude of questions asked by legislators, the TWG completely did not consider the fact that 90% of project water will have a time immemorial priority date for fish and 10% of project water is designated for irrigation with an 1855 date. In a dry year, exactly where do you think that will go? Will irrigators get any water at all?
So the stage is now set. Even before this next phase of reopened “negotiations” begins, the adjudication and science cards are off the table, placing the CSKT attorney bullies once again in the seat of power at the table.
You will now start hearing state talking points and media stories that negotiation is a good thing because you have the ability to solve other issues, such as the administration of water, and negotiation is a more cost effective solution than adjudication. We think not.
What really is happening here is that the federal government and the tribal attorneys realized long ago that the courts, particularly the United States Supreme Court, are not willing to write a blank check for federal reserved water rights. For that reason, negotiation places them in a much more favorable position, especially if you have a governor and attorney general, and a Department of Natural Resources and Conservation (DNRC) who are willing to concede pretty much everything to them.
SO WHERE HAS “NEGOTIATION” TAKEN US?
So back to the original question, what exactly has all of these years of negotiation with a taxpayer funded Compact Commission gotten us?
Below is a table that demonstrates what a compact should have looked like had the law been followed concerning federal reserved water rights, compared to what we have estimated has been awarded in this compact. This chart will answer the question as to where the negotiation process has taken us thus far, how it differs from what a legally correct negotiation would produce, and why adjudication is a better avenue to consider:
In this compact, the state has negotiated away its water and is willing to delegate its constitutional mandate to administer the water of its citizens. All of this in exchange for a talking point that is not true: that existing, verified uses of water will be protected. A PDF copy of this chart and a description of it can be found here.
Suffice it to say we wouldn’t be surprised to hear that more “major concessions” have been made in order to achieve a negotiated settlement ahead of the next legislative session.
For example, it is possible that irrigators will no longer be forced to relinquish their water rights to the CSKT as part of this agreement? To that we would have to ask, does it matter? If the Tribes will still have time immemorial water rights to 90% of the project water and that irrigators will not be given their historical use of water, who loses? Such irrigator historic use would be considered in the Montana Water Court—it would be the measure of their water right–but in this negotiation, the state gave the water to the Tribes instead.
Any kind of “concession” mouthed in this upcoming meeting or others would be designed to merely give the impression that the aggressive overreach of the federal government and the CSKT leadership is not really taking place.
Do not be surprised if they seek to diminish any anger of the people by “conceding” ownership of the irrigation water rights “back to the irrigators”—calling it another “huge tribal concession”, issue an”apology” for the Compact Commission’s “attitude” and for their “bad behavior in public meetings last year”, and otherwise insist that they are serious about achieving a settlement that works for everyone. But make no mistake: it is likely nothing has changed.
After all, the commission is very quick to point out their “colorable claims” to all the water in western Montana, and by waving around the tribes “subsistence map“, they could go after more if they really wanted to.
If a “negotiated settlement” is as good as the governor, the attorney general’s office and the compact commission would like us to think it is, why are seated compact commission members such as Dan Salomon trying to figure out how to get around pesky little problems in the legislature in order to force its ratification?
And for those who might criticize us for placing such a low bar on the “negotiation” approach to settling the CSKT’s federal reserved water rights, we would like to remind them of the definition of insanity: Doing the same thing over and over again, expecting a different result.