© 2015 Concerned Citizens of Western Montana

Concerned Citizens and the Montana Land and Water Alliance are committed to doing all that we can to help legislators do the right thing by rejecting an essentially unchanged water compact when it comes up in the 2015 legislative session.

The actions of the state over the past two years, including their failure to respond adequately to the concerns of the public, and their refusal to make any substantive changes, have made it increasingly clear that moving the venue into the Montana general stream adjudication is a far better option for the resolution of everyone’s claims.    Far too many egregious issues remain with the proposed compact to continue to beat our heads against the compact negotiation wall.

We have reported that the Attorney General and the Governor of the state of Montana have “applauded” the revised document as though it had addressed the serious legal, constitutional issues, and that somehow it was now a good agreement.  In doing so, the AG is attempting to do little more than try to lend the credibility of his office to make the compact appear to be “fixed” because it now has his stamp of approval.  This tactic was intended to help push legislators into the compact proponent column.

And just in case that wasn’t enough, RINO republicans and democrats managed to change the house rules to make it easier to pass the compact once it has been to committee.  Again we ask, if the compact is sunshine and lollipops like the compact commission says it is, why would they need to change the rules?

On January 12, 2015, a letter written by Richard Simms, attorney for the Montana Land and Water Alliance was hand delivered to Montana President of the Senate, Debby Barrett, and Speaker of the House Austin Knudsen.  Attorney General Fox was also delivered a copy of the letter via USPS on the same day, and legislators were emailed a copy one day later.  It says in part:

“In recognizing the substance and scope of the CSKTs’ Indian reserved water rights claims in the proposed Compact, the Compact Commission has agreed with the Tribes that the Tribes have always owned “all of the water in, on and under the [Flathead] Reservation with a “time immemorial” water rights priority.  The United States Supreme Court, on the other hand, has never reached any of these legal conclusions in federal reserved water rights litigation, and it is highly unlikely that the Court ever will.”

“A press release issued by the Governor’s Office on December 11, 2014 begins with the statement that ” the Compact… protects all existing rights for stockwater, municipal, domestic, commercial, industrial and other non-irrigation uses, while respecting tribal and treaty rights.”  Conspicuously missing is a statement that the Compact would protect all irrigation rights.” 

and continues:

“Based on the Tribes’ claim that they own all of the surface and ground water on the Flathead Reservation and that they should have plenary control over the administration of all the water, the new Compact simultaneously purports to 1) roll into Tribal ownership any and all of the legal rights that non-Tribal irrigators have to irrigate lands in the Flathead Irrigation Project; 2) eliminate the State of Montana’s constitutional mandate to administer public waters on the Flathead Reservation; and 3) take without compensation Flathead Irrigation Project water and to convert into on-Reservation instream flows with a time immemorial priority owned by the United States in trust for the Tribes.”

Off Reservation Flows:

“Article III of the Treaty of Hellgate states:  “The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory…” (Emphasis Added).  On its face, the right conferred by Art. III is a right of access held in common by the Tribes and the citizens of the Territory.  A right owned in common is a right owned or shared equally by all members of the common group, which in this case includes the Tribes and the non-Indian citizens of Washington Territory, who today are the non-CSKT citizens of the State of Montana.  In recognizing a “time immemorial priority” for the claim of off-reservation instream flows, however, the Tribes and the Compact Commission have bifurcated the common right in Art. III, making the Tribe’s portion of the right prior and paramount to the rights of the other citizens of Montana.  There is absolutely no precedent for doing so, and the United States Supreme Court most certainly would not rewrite Art.  III of the Treaty of Hellgate to recognize a so-called water right what would give the Tribes legal control over nearly all of the water west of the Continental Divide in Montana.”

It would seem that this second go around of the compact has produced the same flawed result as the first one.  Of course we knew that would be the case because the tribe told us so.

At what point will the state and the tribes admit that their “negotiations” have failed to produce the equitable settlement that the legislature envisioned when it created the compact commission?  Enough already!

Find the whole document from Mr. Simms at this link.

Share it widely, and be sure to ask your legislators to vote NO on this forever document with so many legal and constitutional issues unaddressed.