Note: our thanks to Jim Dinsmore for this great post in the Missoulian today.
Between the need to settle the Confederated Salish and Kootenai Tribes’ rights to water and the reality of the consequences from the current compact exist some issues that need further discussion. My knowledge of the situation is almost entirely centered on the Upper Clark Fork. The off-reservation content of the compact seems very much ignored, with most attention focused upon the on-reservation issues.
The Upper Clark Fork is defined as all of the waters above the confluence of the Clark Fork River and the Blackfoot River. Water law, management policies and agreements seem at odds with the compact.
The Upper Clark Fork is statutorily closed to new appropriative water rights, with a few exceptions. In-stream rights are not an exception. The closure was driven by two applications for reserved water. Granite Conservation District applied for rights to store water for future needs. Montana Fish, Wildlife and Parks applied for in-stream rights for fisheries’ benefits. Both applications were controversial, and both applicants were preparing for a contested case hearing in 1990.
About this time a group convened to explore options other than a hearing. The main issues before the group centered around FWP wanting to protect flows in the basin and water users’ concerns surrounding FWP’s acquisition of legal standing to participate in water issues. Eventually agreement was reached that a basin closure could satisfy both sides of the issue, resulting in the Montana Legislature closing the basin to new appropriative rights in 1991. The closure did not eliminate the two applications for reserved water, but put them on hold pending any significant changes to the closure. FWP acquisition of a very large in-stream flow right through the compact is certainly a significant change. The legislature enacted the closure because FWP and water users in the basin agreed that this was the best solution. How FWP became part of the compact has not been answered.
Another issue is that in 1973 the Montana Legislature passed the Montana Water Use Act to fulfill constitutional mandates. The act confirmed the principles of the state’s prior appropriation doctrine. One of the principles within the act states: “The water diverted must be for a beneficial use and all beneficial uses are equal under the law.” But the compact states that if a call is made to satisfy the in-stream flow rights of FWP and the CKST, only irrigation water can be called. This seems in conflict with the Constitution. Prioritizing water uses could be detrimental to the value of agricultural water rights and diminish the value of agricultural land.
The proposed co-ownership of the new right would give apparent equal interest between the CKST and FWP. The tribes’ right would he held in trust by the federal government. A state-based water right would be managed by a federal agency for the benefit of the tribes, a sovereign nation; and FWP, a state agency. How this management might actually work has never been addressed nor to my knowledge ever been attempted before.
Reading the compact literally would suggest FWP would acquire a very large water right within a closed basin and would not be required to deal with Department of Natural Resources and Conservation rules relevant to changing the use of this most significant right. Water right holders within the basin would lose the ability to object that they have now under DNRC’s change of use rules. The compact would allow FWP and CKST to gain legal standing to object to water right issues within the basin. This was a most contentious issue among water users when the basin was closed.
Because water is the only natural resource that the state wholly owns, it is imperative that the state use great care and wisdom in managing this most important element of the current and future needs of our state. It is being highly advertised that the compact will help avoid years of litigation in our courts. Further thought leads many to believe the compact will only change the reasons for the coming litigation. This is the only compact in Montana that involves off-reservation water rights.
The need for a compact is important; but hopefully we will not be misled by the glitz from special interests and by inadequate information.
Jim Dinsmore of Hall served for 30 years as chairman of the Granite Conservation District; 20 years as an original member of Upper Clark Fork Steering Committee; was an original member of the Clark Fork Task Force, serving until 2013; served on the Citizen Advisory Council for the Natural Resource Damage Program; and is chairman of the Granite Headwaters Watershed Group.