Published in the Western Ag Reporter 12/24/2014

By Catherine Vandemoer, Ph.D.

With all the hoopla surrounding Montana’s Attorney General and Governor “reaching agreement” on the CSKT Compact last week, you would think that a new form of sliced bread has been invented. Sadly for Montanans, though, this publicity stunt is a cosmetic attempt to mislead the public into thinking that “the problems in the CSKT Compact have been resolved.” Unfortunately, they have not.

As background, recall that the Governor opened up “limited renegotiation” of a portion of the compact — the irrigator water use plan – in May 2014. The Tribal attorney said at a June 2014 Water Policy Interim Committee meeting: “Nothing will change in this negotiation, not one drop of water.” The parties to this limited negotiation included the Tribes, the Compact Commission, and the United States, while the irrigators whose water rights were the subject of the negotiation were excluded from discussions. The Compact Commission held private meetings to work out the details before they began their latest round of public “negotiations,” which essentially transmitted to the public what they had decided to do in private meetings.

There is an old saying: “The more things change, the more they remain the same.” This saying can most certainly be applied to the “new compact” being touted by elected officials and compact proponents because the “new compact” is exactly the same as the old compact. The changes to the old compact to produce the “new compact” have been described by Compact Commission representatives and the Attorney General’s office in their statements, radio interviews, and press releases. What remains in place in this new compact includes:

  • The title to the water rights of Flathead Project irrigators is transferred to the CSKT, where the water right is replaced by a “delivery right” to water, so long as irrigators follow the Tribes’ management plans. This was the former “Water Use Agreement” under the old Compact, which is now called the “adaptive management plan” for the irrigation project under the new compact.
  • The historic volume of water put to beneficial use in the irrigation project is reduced from over 500,000 acre feet to a little less than 179,000 acre feet, with all stock water removed. This was in the old compact’s “water use agreement,” now called the “adaptive management plan,” and this volume of water is intended to be continuously ‘squeezed down’ through adaptive management so more water can be made available to increase instream flow over existing flows that are already sufficient for fish.
  • The removal of 23,000 non-Indian citizens out from underneath the Constitution and laws of the state, placing them under the jurisdiction of a Tribal-Federal controlled water administration system. This is the old “Unitary Management Ordinance” in the old compact, now renamed the “Law of Administration”  in the new compact.
  • The transfer of a large portion of state water resources off-reservation in 95 rivers and streams to the CSKT as owner or co-owner, with several large streams having a ‘time immemorial’ priority date. This is the old off-reservation water claim to fulfill the Stevens Treaty right to take fish in common with the citizens of the territory in the old compact and stated as “only 8 off-reservation streams” in the new compact.
  • The “water right abstracts” contained in the appendices to the Compact — which award 100% of the surface and ground water on the Flathead Reservation, 100% of Flathead Lake, 90,000-acre-feet of Hungry Horse Reservoir,  and millions of acre-feet of off-reservation state water to the CSKT, whose bare title will be held by the federal government.

So what are the compact proponents crowing about? Nothing has really been changed in the new Compact except the language used to describe the same elements of the old compact… Your taxpayer dollars at work, once again.

And why does the Attorney General’s office – in radio interviews and press releases – think this is the best deal the state is going to get? Well, that is because the CSKT have refused to budge on any of their own demands. When the state has a Compact Commission that decided to give everything to the Tribes in this Compact, why should the Tribes back down on any of it? The state claims it “negotiated hard” for these cosmetic changes, but nothing was ever going to change as the Tribes made that clear in a Water Policy Interim Committee meeting in June 2014.

The CSKT Compact remains unchanged; the documented existing inequalities, damage to property rights, constitutional violations, and usurpation of state sovereign prerogatives continue in the “new compact.” That elected state officials try to lend an aura of “legality” to this poorly crafted document, and disparage anyone who disagrees with them, is reminiscent of 1984.

NOTE: Catherine Vandemoer is Chairman of the Board of the Montana Land & Water Alliance, an organization dedicated to protecting the property rights of Montanans. Contact MLWA at 4mtlandwater@gmail.com or at  P.O. Box 1061, Polson, MT 59860.

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