©2016 Montana Land and Water Alliance
Note: This article continues our series on the efforts of the Montana Congressional delegation to work around Montana’s interests and cater to the Tribes and other special interests as they continue to federalize Montana’s lands and water. We hope that by alerting Montanans and other western states that these efforts can be checked or otherwise reined-in. We thank the Western Ag Reporter for publishing this account in late September, 2016.
If anyone thought that the CSKT Compact just affected Montana and further, was only limited to western Montana, it’s time to face the uncomfortable and inconvenient truth. The principles of the CSKT Compact—including (a) the rewrite of the Treaty of Hellgate to give water rights to the CSKT off reservation where none existed before, (b) removing citizens out from underneath the protection of the Constitution and laws of Montana for water administration purposes, placing them underneath the jurisdiction of the Tribally dominated politically appointed board and (c) expanding the land base and jurisdiction of Indian Tribes over non-Indians—have now surfaced in federal legislation affecting national forests and rangelands.
Under the Radar
Everyone agrees that National Forests and rangelands are at risk of catastrophic fire in part because the radical environmental community has forced federal agencies into court essentially stopping all forest and rangeland management activities, including those aimed at reducing the fire fuel load. The practical result of this strategy is that much of the budget of the federal agencies responsible for actual management of these public lands is tied up in environmental litigation. And since these environmental groups can recoup their legal fees through the Equal Access to Justice Act (EAJA), this further reduces the federal funding available to conduct critically important preventive management measures protecting our public lands from catastrophic fire.
“Flying under the radar” however, are efforts promoted by Montana’s Congressional delegation to supposedly address these concerns. However, rather than revise environmental laws, the Montana congressional delegation is now attempting to apply the principles of the CSKT Compact to National Forests and Rangelands in the form of two bills: S. 3013—Senator Tester’s expanded CSKT Compact; S. 3014—Senator Daines’ bill to “treat” national forests and rangelands across the United States as “Tribal” forests and rangelands. A third bill passed in the House in 2015 and supported by Congressman Zinke, H.B. 2647, included a provision that expanded the Tribes’ role in forest and rangeland management to lands adjacent to Indian reservations that carried “significance” to the Tribes.
While the stated goals of these bills are to provide for expedited fire protection on public lands, and to avoid environmental lawsuits, the mechanism chosen by the Senate to do so provides favored status and public funding to Tribes for the management of public lands under the guise of “streamlined environmental regulations” and “litigation protection” applicable to Tribes.
Under Senator Daines’ bill, S. 3014, National Forests and Rangelands would be “treated” or designated as “Tribal Forests and Rangelands” for the purpose of planning and management, activities that include fuel load reduction and fire protection. National forests or rangelands that are within (a) Treaty ceded lands, (b) the judicially determined historic geographical range of Tribes, (c) former reservation lands, or (d) lands covered by and Indian water settlement would be designated as “Tribal Forests” or “Tribal Rangelands”. “Tribal Forests and Rangelands” would have ‘streamlined environmental regulations’ and ‘litigation protection’, and project funding would be provided through a direct contract of federal funds to the Indian tribe for what is public—not tribal- land.
How Will this Effect Counties in Montana?
While Senator Daines’ bill contemplates only six “pilot projects” per year over a period of ten years, just one of these projects in Montana could turn over millions of acres of land now under federal control to the Tribes. For example in Lincoln and Ravalli counties approximately 73% of the county lands currently managed by the Forest Service could be designated as “Tribal Forest” under the Daines bill. East of the continental divide, the Forest Service and BLM currently manage nearly 16 million acres of land, all of which could be designated as “Tribal Forest or Tribal Rangelands” under the Daines bill through multiple “pilot projects”. Theoretically, nearly one third of all the land in Montana could be under the “planning and management” control of Tribes.
Missing from Senator Daines’ bill are the counties, state, and local government cooperative agreements, arrangements, and resources which already contribute to the management of federal lands affecting fire protection in the counties. In essence, with the new focus on Tribes these existing arrangements are likely to be sidelined or ineffective inasmuch as the Tribes will not be required to utilize them.
Will Push back from Montana and Other Western States be Enough?
Already many Montanans and at least three western states have begun to push back on Senator Daines’ “Tribal Forest Protection Act”, where our National Forests and Rangelands are now ‘treated as” Tribal forests and rangelands. Although the Senator’s office is reportedly responding to these concerns, we found Senator Daines’ language in yet two other another senate bills, S. 3085 and S. 2012 which will act as the “comprehensive” bill incorporating the Zinke-supported house bill and Senator Daines’ bill. In other words, the Daines bill might change, but what about the larger comprehensive bill?
The risk of course is the lame duck session of a “republican controlled” Congress that has given everything to the Obama administration that it asked for. Clearly the passage of the “comprehensive” forest management bill, which includes the Daines bill language, is likely as is its signature by the outgoing president.
The Root of the Problem
Ignoring federal and state constitutional responsibilities, rewriting history, and giving favored status and carte blanche management authority over lands, waters, and citizens of the state to the CSKT through a water settlement—an effort underway for more than a decade in Montana—is clearly at the root of the Montana congressional delegation’s efforts in so-called “forest protection”. These are the hallmarks of the CSKT Compact principles which, if allowed to proceed, will bring even further damage to the Montana and other western states.
And through their silence, our Governor and Attorney General are as complicit in the forest effort as they were in forcing the disastrous CSKT Compact on Montanans. We understand that Daines’ staffers keep regular contact with the same attorney in the Attorney General’s office that created the disastrous Compact. Yes that would be the same Attorney General whose allegiance is to Indian Tribes, not the state of Montana.