© 2015 Concerned Citizens of Western Montana
In 2013, we proved that citizens can make a difference. Against all odds we were able to convince legislators that the CSKT Water Compact had too many problems, contained insufficient information, and should not be ratified. The bill was tabled in the House Judiciary Committee, and an attempt to “blast” the bill to the house floor failed.
Two years later, we face the possible ratification of essentially the same bill. We know it is essentially the same bill because:
1) tribal attorneys and the Compact Commission told us nothing would change, and that the “narrow reopening” of negotiations was simply to allow the Compact Commission to insert a slightly modified irrigator water use agreement into the compact–without the input of the irrigators.
2) Chris Tweeten confirmed this at the first “renegotiation” session where he assured the CSKT attorneys that not a drop of water in the abstracts would change. (Note: The only thing different in 2015 concerning the irrigator water allotment is they made it less transparent by removing the volume of water from the abstracts. However we do know that not a drop of water changed on the instream flow abstracts for the project, so nothing more was given to irrigators).
ENTER CHAS VINCENT
After the release of the “new compact” documents, a legislative lobbyist communicated that Senator Vincent was reviewing the compact closely for 21 changes he had identified as being important. If these 21 revisions or improvements could be found, he would carry the bill. Viola, the 21 changes were magically included in the compact to his satisfaction, and he is carrying the compact ratification bill in the senate.
Unfortunately for Vincent and the State of Montana, the cosmetic changes or tweaks recommended by his committee did nothing to substantively change or improve the compact. The changes simply ‘doubled down’ on the Compact’s original objectives and further twist the language so these objectives are hidden from the public. Here are just a few examples:
THE COMPACT GIVES THE CSKT TITLE TO 100% OF IRRIGATORS WATER
Although 90% of the lands served by the irrigation project are not owned by the tribe, and the Tribe does not own the irrigation project itself, the compact proposes to give legal title to 100% of irrigation project water to the tribe and irrigators far less water than their historic use, but irrigators can still go through the “adjudication process” and try to compete with the tribe’s claim to the same water with a very senior, time immemorial water right after the Compact is passed. How is that not a taking? Don’t believe us? Listen to Melissa Hornbein tell irrigators this in Ronan on 01/09/2015.
THE COMPACT REMOVES “SOME” CITIZENS FROM STATE JURISDICTION
The Unitary Management Ordinance forever bans the state of Montana from administering the water of its citizens residing within the historical boundaries of the Flathead Reservation. The UMO clearly violates the equal protection and due process clauses in the Montana and United States Constitutions, and it guts the administration provisions of Article IX, Section III of the Montana constitution. For a more detailed review of the Compact Commissions violation of Article IX of the Montana Constitution, please read Attorney Richard Simms’ letter to Attorney General Fox, warning him of the dangerous track the state of Montana is on.
Page 6 of the Ordinance says: Upon the Effective Date of the Compact, this Ordinance shall govern all water rights, whether derived from tribal, state or federal law, and shall control all aspects of water use, including all permitting of new uses, changes of existing uses, enforcement of water right calls and all aspects of enforcement within the exterior boundaries of the Flathead Indian Reservation. Any provision of Title 85, MCA, that is inconsistent with this Law of Administration is not applicable within the Reservation.
Senator Vincent seems to think that having county commissioners nominate the governor appointed board members resolves the issue of an illegal board. He is patently incorrect, and as a legislator supporting the compact, does not have the authority to place Montana citizens under the jurisdiction of a tribal board.
To add insult to injury, Corey Swanson, representative of the Attorney General’s office thought that the provision allowing the United States to select a fifth board member in the event of a stalemate will ensure that it will not be a “tribally controlled board.” Really?
THE COMPACT GIVES THE CSKT SUPERIOR CLAIMS OFF RESERVATION
The state still proposes to give the CSKT significant time immemorial water rights off the reservation based upon the Hellgate Treaty Article III language that says: The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; and also the right of taking fish out of usual and accustomed places, in common with the citizens of the territory.Senator Vincent has now openly admitted that he made a deal with the CSKT pertaining to waters within the Kootenai Basin. To that we have to ask:
Does a seated legislator have the authority to make a deal with a foreign or so called sovereign government?
Was his “deal” a mistake or premature? After all, the right to take fish very likely is not a water right.
Is Vincent really okay with giving a TIME IMMEMORIAL WATER RIGHT to the United States / CSKT when it is supposed to be a “common right”?
If it is a common right, can I apply for and receive a time immemorial water right on one of the streams he willingly negotiated away from the Kootenai Basin?
In his letter to legislators dated 01/08/2015, Richard Simms, attorney for the Montana Land and Water Alliance stated:
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 Tribes’ 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 that would give the Tribes legal control over nearly of the water west of the Continental Divide in Montana.
We would like to note that for all the pro-compact attorneys present at Senator Vincent’s legislator information session held yesterday, not one of them spoke to this issue. They did however make a poor and ineffective attempt to discredit some of Mr. Simm’s other statements. Ever heard that phrase, “me thinks thou dost protest too much”? State attorneys and Senator Vincent embarrassed themselves considerably in their feeble attempt to defend their indefensible position.
URGENT CALL TO ACTION
On Monday 02/16/15, Senator Chas Vincent will be presenting his compact ratification bill SB262 to the Senate Judiciary Committee. We are asking the people of Montana, western Montana in particular to join us in Helena to urge legislators to vote no on this bill.
Here are the hearing details:
Action: Senate Hearing
Hearing Room: 303
Hearing Time: 8:00 AM
Committee: Senate Judiciary
If you are interested in taking a bus from Missoula, St. Ignatius or Kalispell to attend teh hearing, email us at email@example.com
We also ask you to contact members of the Senate Judiciary Committee ahead of the hearing to express your opinion and concerns about the CSKT compact. Please be concise and respectful. A list of members with contact information can be found here.
We made a difference in 2013, and we will make a difference in 2015. Let’s help legislators understand that the CSKT compact is too complicated, overreaching, and unprecedented for any legislator to give it a pass.
Ask them to JUST SAY NO to the CSKT Water Compact.