From the latest issue of the Western Ag Reporter

By Catherine Vandemoer, Ph.D.

In the year and a half since the 2013 Montana legislature wisely stopped the proposed CSKT water compact from moving forward, one may legitimately ask if the Compact Commission has made any progress in responding to the legislator and public concerns voiced regarding the Compact. After all, nearly 1,000 pages of comments were received by the Compact Commission in June 2013. In response to the legislature’s rejection of the proposed Compact in the 2013 session, the Montana Governor asked the Compact Commission to prepare a report that would professionally address the concerns raised by the Montana legislature and thousands of citizens. That report, produced in December 2013 and called “Governor’s Report on the Proposed CSKT Compact,” unfortunately, dismissed those thousands of comments and, instead, created a professionally “word-smithed” document reflecting the Governor’s view that the proposed Compact was a “fair deal.”

Montana legislators step up…

After the Governor’s report was released and still alarmed by the lack of information that would explain what the Compact actually meant for the citizens and water resources of the state, 50 legislators submitted questions to two legislative interim committees, asking for an independent review of the Compact in February 2014. Perhaps acknowledging those questions, the Governor decided to “reopen negotiations for the limited purpose of negotiating the irrigation district ‘water use agreement,'” the same agreement that had been ruled “an unconstitutional taking of property rights without compensation” by a state district judge a year earlier. Within one month of the Governor’s statement on reopened negotiations, the Tribes’ lawyers said unequivocally that nothing would actually change.

Over the summer of 2014, the interim committee charged with reviewing the legislators’ questions conducted non-independent studies that disappointingly produced no new information that would either support the Compact or answer the legislators’ questions. Meanwhile, the Compact Commission “negotiated” behind closed doors and emerged in early September 2014 to hold the first of a series of “negotiation” meetings, which you may have heard about. The meetings were held on September 3 in Missoula, October 15 in Polson, and a third will be held on October 27 in Missoula.

Has anything changed?

In a word, NO.

The Compact still contains the same troublesome provisions that it did more than a year ago. These include:

(a) an irrigator water use component that turns state law-based irrigation water rights into Tribal water rights, reduces on-farm irrigation water use by two-thirds, and turns the rest into instream flow,

(b) a new water administration program that removes the state from administering the water of its citizens, is unconstitutional, and changes Article IX of the Montana Constitution in the process, and

(c) claims all the surface and ground water resources in Lake County and portions of Sanders and Missoula Counties, even those belonging to private landowners.

The Compact still reaches off the reservation, improperly claiming instream flows in eight major river systems and claiming all the water in Flathead Lake with a time immemorial priority date.

To hedge their bets on the Compact, the CSKT filed a federal lawsuit against “everyone,” claiming their ownership of all land and water on the reservation. As we have noted before, the lawsuit asserts the same claims being made in the proposed Compact.

The only new information that has been gleaned by this year and a half of “studies” and “negotiations” is the extent to which this Compact also negatively affects eastern Montana:

– First, it is clear that the goal of the Compact is to ratchet down irrigation water use and “conserve” it for off-reservation instream flow. If the legislature ratifies this water use agreement as part of the Compact, it becomes declaratory law that could impact EVERY irrigation project across the state.

– Second, by allowing the Tribes to administer all the water resources, the state turns its sovereign prerogative to set priorities in the affected basins through Article IX of Montana’s Constitution over to the federal government through a board that is dominated by federal interests. This means federal prerogatives and federal agencies set the priorities for these basins. If the state is so easily willing to give this up for its citizens in western Montana, what prevents this same calamity from happening in eastern Montana?

– Third, the Compact improperly expands the concept of “federal reserved water rights” beyond recognition, reaching outside of a reservation boundary. Does anyone else think that every Tribe in the state and, for that matter, across the western United States is waiting for a chance to expand their water rights, too?

Even with these substantive issues unresolved, It appears that the same “professionally word-smithed” Compact will be introduced to the 2015 Montana legislature for ratification. It is still a lengthy document that no one has time to read and that no one understands. Sadly for Montana, the Compact Commission has utterly failed to protect the water and property rights of and constitutional protections for Montana citizens as it negotiated this Compact.

Montana Land & Water Alliance

After more than two years of extensive work educating the public and the legislature as to the dangers of this proposed CSKT Compact and participating in or testifying before legislative committees and work groups, Concerned Citizens of Western Montana sees the writing on the wall. Our state government has actively worked against its citizens and is using every avenue available to it to foist this compact down its citizens’ throats, oblivious to public concerns, constitutional violations, and setting negative precedent.

There is NO modification of this compact that will solve these problems, and the Compact Commission and Tribes have drawn a line in the sand. It is time now to cross that line and proactively defend our rights, develop our “Plan B,” and stop this Compact in its tracks or insist that an entirely new approach is taken. Sure, we all would rather negotiate a water settlement, but at what expense? The Compact Commission, the federal government, and the Tribal “negotiators” have generated conditions in this negotiation that require Montanans to give up their rights and constitutional protections. They leave us little choice.

To this end, we have formed the Montana Land & Water Alliance whose mission is to protect the property rights of Montanans against anyone who would usurp or destroy them for some other agenda. We have retained the expertise necessary to ensure Montanans have a fighting chance against the excesses of governments and unelected commissions.

This is the kind of life or death struggle that comes along once in a lifetime, and we are rising to the challenge of protecting the property rights of and constitutional protections for Montana citizens. Will you join us?

Note: Catherine Vandemoer is a consultant for Concerned Citizens of Western Montana and is Chairman of the Board for the newly-formed Montana Land & Water Alliance, P.O. Box 1061, Polson, MT 59860. For more information on Concerned Citizens and the MT Land & Water Alliance, visit the website http://www.westernmtwaterrights.wordpress.com

Editor’s note: Webster defines the fine word “Rubicon” as this: “a small river between Italy and Gaul… by leading an army across this river, contrary to government orders, Caesar precipitated the civil war which made him supreme; hence, (the phrase) “to cross the Rubicon” is to take the irrevocable decisive step.” … good word… LG

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