©2020 Montana Land and Water Alliance
By now many have already written to the Senate Committee on Indian Affairs (SCIA) in opposition to Senator Daines’ disastrous CSKT Compact legislation. But wait! Just yesterday the incompetent staffers and Daines’ legislator lackeys advised selected people that they could “submit questions to the Interior Department witnesses because they will be testifying under oath”. Way to plan ahead boys, another disingenuous effort to say “the Senator coordinated with Montanans to bring these questions forward”.
Do you honestly think Senator Daines would ask any questions critical of his own bill?
The Daines bill is a disaster for Montana, and no amount of “cooperation” with him by our “conservative” legislators will change that.
Ignoring the typical Daines eleventh hour disingenuous request, we asked the Senator to look at Montanan’s testimony and find the questions himself.
Here is the Montana Land and Water Alliance letter to Senator John Hoeven, Chair, Senate Select Committee on Indian Affairs. Our testimony will be published tomorrow.
RE: S. 3019 Montana Water Rights Protection Act
Dear Senator Hoeven:
The Montana Land and Water Alliance (MLWA) respectfully submits the attached written testimony regarding S. 3019, the Montana Water Rights Protection Act (MWRPA) to the Senate Committee on Indian Affairs (SCIA) for the record when it hears this proposed legislation. The bill purports to protect the water rights of Montanans while “solving” the federal reserved water right claims of the Confederated Salish and Kootenai Tribes (CSKT). Although this legislation was submitted by our own Delegation, and despite our fully supporting the quantification of the CSKT federal reserved water rights, we cannot support S. 3019. We are additionally concerned that this bill will set an adverse precedent affecting all western states, and the attached testimony provides supporting information for this determination.
As a first matter, we would like to point out that in the upcoming hearing on S. 3019, the Committee will not have in front of it the major substantive document which forms the core of the MWRPA. That core document is the Montana-based CSKT Compact which contains extraordinary provisions that the Committee should be aware of before decision-making on the MWRPA. The CSKT Compact:
- Creates new and then settles unprecedented non-Winters Doctrine “tribal reserved water rights” that extend outside of the reservation boundaries into the CSKT ceded aboriginal territory and beyond. These contrived time immemorial water rights will disrupt the vested water rights covering two-thirds of the state of Montana.
- Removes many Montana citizens from the laws and Constitutional protections of the state and -places them under a tribally-controlled board for their water supply, treatment, and future development needs
- Reduces water deliveries on the largest irrigation project in Montana, a 128,000 acre federal project, by 40%-70%.
Of significance to this Committee is that these components of the Compact have never been fully examined by the Departments of Interior or Justice under existing federal criteria, thus the true liability of the United States has never been formally assessed nor is it included in the MWRPA $1.9 billion dollar “damages claim”. A useful inquiry to the Interior Department would be the production of these studies for the original CSKT Compact as well as the studies for the additions proposed by the MWRPA.
The CSKT Compact, and now the MWRPA, is one of the most divisive pieces of legislation to ever hit the state of Montana and remains wildly unpopular. The advancement of the flawed and divisive MWRPA produces unnecessary harm to local counties, farmers, ranchers, individual tribal members, and small businesses. There will be implications for other western states.
There is enough water in western Montana for everyone to have water without having to take water from anyone. The MWRPA is not the tool for a solution to the federal reserved water rights claims of the CSKT and we urge the Committee’s rejection of this legislation. In our view, an entirely new solution will have to be created as the MWRPA cannot be salvaged.
Thank you for this opportunity to submit these comments and please contact us if you need more information.
Cc: Members, Senate Committee on Indian Affairs
 The MLWA was established in 2014 to keep the public apprised of the Confederated Salish and Kootenai Tribe water compact. It consists of a board of ranchers, farmers, landowners, business interests, and other concerned citizens. MLWA provided information to and worked with Montana legislators to both promote changes to the CSKT Compact and to create a lawful alternative resolution of the CSKT water rights.
 S. 3019 is intended to be the enabling federal legislation for Montana’s SB 262 (MCA ) which is wholly incorporated by reference. While significant constitutional, legal, environmental, and scientific issues remain with Montana’s legislation that can only be resolved by the MT legislature or through appropriate federal intervention, S. 3019 adds several other concerning provisions to the MT bill that the MT legislature did not approve.
 The 2015 legislation passed without the required number of votes due to an immunity provision in the CSKT Compact that required, by Article II Section 18 of the Montana Constitution, a 2/3 vote of each house. The unconstitutional immunity provision remains in the CSKT Compact and thus poisons the MWRPA.
 Including the Federal Register’s Criteria and Procedures; the 2015 Bishop letter to AG Holder and Secretary Jewell; and the Federal Data Quality Act, which requires the examination of any technical models used as a basis for decision-making for federal actions generating significant economic impact. No OMB study has been completed.