©2017 Montana Land and Water Alliance
The roughly 1,500-page CSKT Compact, including appendices, was never presented to or explained for the Montana legislature in either 2013 or 2015 by the Montana Reserved Water Rights Compact Commission. As a result, many important aspects of the compact were not discussed, including immediate implementation of Appendix 3.5 in the federal Flathead Irrigation Project by the CITT and the Milltown Dam water right, involving a federal co-owned water right in the name of the CSKT.
We believe that the immediate implementation of these two elements of the compact is designed to enable as much irrigation operational change as possible. The only reason for the extensive appendices of the compact, including those that show the transfer of irrigator water rights to the CSKT, is to make it so permanent it will be impossible to undo if the compact fails either in state court or Congress. Just like Obamacare, Montana would never be rid of this compact.
Having examined the Milltown water right and its improper implementation, lets take a look at what the state is attempting to do with a federal irrigation project.
The Flathead Irrigation Project. The reduction of on farm water delivery contemplated in Appendix 3.5 enables the CITT to “adjust” and “balance” irrigation and fish flows according to some “adaptive management” principles. “Balance” implies some kind of headgate management or control at either a main canal River Diversion Allowance) or control of diversions at the field level (historic use reduced to 1.4 acre feet per acre).
Bear in mind that there are no scientific criteria or measurable outcomes by which the CITT can judge “adaptive management” a success or failure. Noteworthy as well is that the BIA cannot change its operations plan without federal approval according to the Code of Federal Regulations (25 CFR 171). So the only current legally-correct operations plan is the BIA’s 2010 plan, not some “adaptive management program” in Appendix 3.5 of the compact.
In all these pages we have documented the factual, illegal, and unconstitutional provisions of the compact, with an archive of hundreds of documents that support all of what has been written here. We believe the compact never passed the 2015 legislature, is unconstitutional, and violates provisions of Montana and U.S. law.
What does the long term deprivation of water to irrigation lands, including the lack of spring surplus flows or “non-quota” water do to agricultural production? It starts a physical and biological chain reaction that starves the soil of early moisture, starves growing crops of water, and reduces late-season streamflow important for agriculture and fish.
The loss of agricultural productivity and resultant economic devastation by this scheme of adaptive management was never analyzed in the compact and never presented to the legislature for discussion, let alone its immediate implementation. The 1,500 page document was designed to prevent this discussion and intended to frustrate the competent analysis of the compact. Instead, politics prevailed.
Are there any Federal Law Books on the Shelves?
You would think that when issues of federal reserved water rights, Indian tribes, and the federal government are involved in an issue with the state, the state would consider basic elements of federal law that control the subject of water rights. But seriously, are there any federal law books on the shelves of the Governor, Attorney General, Legislative Services Division, legislature’s or Compact Commission shelves? What makes them think they have the authority to unlawfully take or manipulate the volume of citizens’ water rights?
The problem returns to the misconception of what “Tribal sovereignty” is. The state refers to the “three sovereigns” coming to an agreement on water as if the Tribe represents or has the same type of sovereignty as the federal or state governments, when they don’t.
Confronted with this issue, the state refuses to recognize the trap it has put itself in. And in doing so, the state of Montana violates the civil rights of all its citizens.