©2015 Montana Land and Water Alliance

Our sincerest thanks to the Western Ag Reporter for publishing this article.

Blue Gold: The Treasure State’s Water Must Be Protected
Catherine Vandemoer, Ph.D.

Will the water resources of the state of Montana stay in Montana’s hands? Or will all the water be federalized through water compacts and other federal actions? This question underlies concerns about the CSKT water compact and other federal activities affecting the waters of Montana.

This is a legitimate question to ask given the fact that the allegedly-passed CSKT Compact unjustifiably awards an enormous amount of state water to the United States off the reservation under the unsupported legal theory that a right to take fish is equivalent to a water right. The question is also relevant in light of the fact that the CSKT/federal government recently filed more than 10,000 water claims in the MT General Stream Adjudication, many of them east of the Continental Divide. Each set of claims is shown in the maps.

The first map shows the water claims on and off the reservation in western Montana that were “negotiated” in the Compact. Most of the off reservation claims for water are within the CSKT aboriginal area outside of the Flathead Indian Reservation. The rest are within the reservation boundaries. The total number of claims on this map may be small, but the volume of water is large. Just one claim, to Flathead Lake and all the tributaries flowing into it, is 16 million acre feet!

The travesty of the Compact, as shown in this map, is that the state gave up state water off the reservation to the federal government that it didn’t have to. The state gave away its own water for a non-existent “instream flow right” to support the actual Treaty-granted right to take fish at usual and accustomed places. The state’s justification for giving up state water to the federal government was that a court “might” rule that the Tribes have a water right off the reservation.

The second map shows the additional water claims filed by the United States and the CSKT on lands both east and west of the Continental Divide. Although these claims extend outside the CSKT aboriginal area and are not recognized in the Treaty of Hellgate, any subsequent act of Congress, or case law, the CSKT/United States filed these 7,500 additional water claims anyway in late June. These were the claims that the Compact Commission, the bill sponsor, the Stock Growers, the Farm Bureau, and the compact proponents, and some legislators threatened Montanans with. “Pass this compact or else”!!!

To not repeat those mistakes of fear mongering, let’s take a sober look at this second map.

  • These water claims are billed as water rights in the Tribes’ subsistence area, and because the CSKT claimed them that was “prima facie” evidence “on its face” evidence those rights existed. The CSKT/U.S. had a June 30, 2015 deadline to file all their claims in the MT Water Court as part of the MT. general stream adjudication.   They filed the Compact Claims (Map 1) and the subsistence area claims (Map 2).
  • The United States and Tribes have stated in Water Court Proceedings that if the Compact passes Congress, they will drop their claims in eastern Montana.
  • The language in the Compact states that the Compact does not limit the Tribes from acquiring state-based water rights, and does not limit the United States from objecting, on behalf of the CSKT ,to any claim in the MT general stream adjudication. Article V, Section B (5), (14) states: Nothing in this Compact shall be construed or interpreted to: (5) preclude the possession, acquisition or exercise of Water Rights Arising Under State Law by the Tribes or Allotees or members of the Tribes (14) to limit or prohibit the Tribes, their members or Allotees, or limit the United States in any capacity from objecting in any general stream adjudication in the Montana Water Court to any claims to water rights on or off the Flathead Indian Reservation.

That’s about as ambiguous as you can get, and realistically it seems the Tribes and the United States left themselves an open door no matter what happens. So, one must prepare for the likelihood that these claims will still be around even if the Compact is passed by Congress. If Congress removes these claims in eastern Montana but otherwise passes the Compact, are these claims likely to still exist in the general stream adjudication?

In continued analysis of the second map, and for anyone who is interested, one has to look at the validity of the CSKT claims in eastern Montana beyond the state’s statements of “prima facie” evidence. First of all, any land east of the Continental Divide is not the aboriginal territory referred to in the Treaty of Hellgate. Further, the legal work completed for the Montana Land and Water Alliance (MLWA) found that the 1855 Judith River Treaty, signed by the Flathead Tribe, limited the Flathead to the western side of the Continental Divide. Finally, even the off-reservation claims for instream flow water rights on the western side of the divide shown in the first map are inconsistent with the Treaty’s grant of access to usual and accustomed places to take fish. These are issues that should be argued in court, not negotiated by non-representative parties.

So, if the off-reservation claims in western Montana may be invalid based on history and law, a friend asks, “how did eastern Montana get dragged into this mess?” Good question.

In my opinion, there are only two ways that Eastern MT could now be involved in the expansive CSKT Compact water claims issues, especially if the historic, legal, and Treaty based information are available. First, the state could have simply failed to do its homework and took everything the CSKT and the United States said at face value. Sort of a new definition of “prima facie evidence”, I’d say: “if you said it, it must be true”.

The second is that the state could have willingly sided with the United States and the Tribes at the expense of ordinary Montanans, stated another way, put the tribal trust ahead of the public trust for some other reason. Could that reason have anything to do with the two new wild lands designations in Montana and the proposed new free roaming buffalo range discussed at the recent United Property Owners of Montana conference, both of which overlap the CSKT/US claims in eastern Montana? How do the CSKT claims advance the EPA’s “Waters of the United States” WOTUS rule?

Remember it is the federal government that has the Tribal trust responsibility, not the state government. The state’s obligation is to all of its citizens, including individual Tribal members who are state citizens and who will be equally hurt by this compact.