Note: Our sincerest thanks to Bob Storer for this oped in last Sunday’s Daily Interlake.
I can give you 10 very good reasons why you should contact the Montana House Judiciary Committee regarding the water compact and tell the members to vote NO.
Time is short.
The committee will hold a hearing on Saturday, April 11 at 10 a.m. in Room 303 on the proposed Salish and Kootenai water compact (Senate Bill 262). You can find information on contacting the 21 committee members by visiting the Legislature’s website at http://laws.leg.mt.gov.
Consider these problems with the compact:
Constitutionality: The proposed water compact with the Confederated Salish and Kootenai Tribes violates both the U.S. and Montana’s constitution in several ways. The compact takes state-based water rights of irrigators on the reservation and transfers them to the Salish and Kootenai, violating due process of law. The state of Montana owns all surface, underground, flood, and atmospheric waters within the boundaries of the state… for the use of its people and they are subject to appropriations for beneficial uses as provided by law (Article IX, Sec. 3).
1855 Hellgate Treaty: This treaty does not mention the word “water” or the word “right” and was never meant to be convey a “water right.” Article III in this treaty limits any claim of a self-reserved water right to the Salish and Kootenai’s aboriginal territory.
Purpose: The purpose of the reservation and its quantifiable water needs are not defined in the compact. The Winters Supreme Court Decision (1908), states that federal water rights are defined as the amount of water necessary to fulfill the purpose for which a federal reservation of land was created. How much water did the state negotiate away — 30,000 to 50,000 acre-feet? And, for what beneficial use: any, irrigation, instream flows, mitigation, or leasing?
Quantification: The quantification of water negotiated has not been adequately defined. Either it is listed as not available or the compact references it back and buried in the details of the 35-plus abstracts.
Water Rights: The negotiation settled on 222 water rights, mostly for instream flows. These instream flows are vague and not predicated on proven sound fisheries science. Securing instream flows for fish is a must, but not an end-all for a sustainable fishery. One must also have the HABITAT.
11,000 Acre-feet from Hungry Horse Reservoir: The Confederated Salish and Kootenai would utilize this volume of stored water to meet instream flows and consumptive use needs on the reservation. The tribes would also be able to lease this water for use on and off the reservation.
The compact would provide access to this water at a fixed rate, to be administered by the state to mitigate for domestic, commercial, municipal, and industrial water development off the reservation. How much of this water or any other water out of Flathead Lake and River will be utilized to expand and protect agriculture? What type of market will be created?
What is meant by these words in the compact: “In the event the Flathead Irrigation Project is decommissioned, all remaining payments of the $55 million (from the state) for the [Salish and Kootenai] shall be disbursed for the FIP [Flathead Irrigation Project] removal and landscape rehabilitation”? Who will provide oversight and where are the checks and balances? (CCWM Note: this language was removed from the 2015 compact, however the result will be the same.)
Reduced Deliveries to Flathead Irrigation Project Irrigators on the Reservation: The proposed compact reduces historical water deliveries by 3.3 acre-feet per acre. This diminishes the amount of water historically available to farm irrigators by more than 423,000 acre-feet annually.
Shared Shortages: The confederated tribes will own and operate Kerr Dam as of this September. The compact allows 90,000-acre-feet out of Hungry Horse reservoir and 229,000 acre-feet out of Flathead lake and river. This quantity of water is likely more than would be available during an extended drought period, which could last 20-30 years or longer based on historical lake bed soil samples over the past 6,000 years.
Unitary Administration and Management Ordinance, or Law of Administration: The proposed compact lists several boards and committees including: CITT, CMC, Water Management Board, and the Court of Competent Jurisdiction. Appointments to these administrative and technical committees will be purely political; heavily tilted towards the tribes; and have little to do with science, adaptive management, and best practices.
34 Disclaimers: It would appear that no party in this negotiated settlement wants to take responsibility or risk. If this proposed water compact is not a precedent for other tribes, states, and future compacts, I don’t know what is.
To be successful in negotiations, timing is everything. Knowing your bottom line is another. One item that can strengthen your position is the willingness and ability to walk away from the deal. Did the governor, attorney general, and state Water Compact Commission negotiate in good faith, given their duty and responsibility for water management and stewardship and for all citizens’ of Montana? In a successful negotiation, neither side gets everything they want.
Neither an environmental assessment nor an economic impact statement has been completed on this proposed compact. What are the unintended consequences? Has this issue been boiled down to principle vs. fear of thousands of claims by the tribes if the compact fails?
This is one of the most important issues facing this state. No matter what happens, legal battles are just beginning. In the Flathead the winds are blowing. A majority of irrigators I know and have heard from would prefer that water claims be decided in the Montana Water Court Adjudication process.
Please ACT NOW, and attend the hearing and voice your concerns or write to the House Judiciary Committee members and tell them what you believe in and how you feel about your state-based water rights. Ask them if they have had time to read and understand all 1,500 pages? If not, they need to vote NO and do their duty to DO NO HARM to the state and its citizenry.
Now or never, and remember: It’s forever!
Bob Storer resides in Bigfork