©2020 Montana Land and Water Alliance
After years of insisting the CSKT Compact would never be introduced while he was a Senator, Steve Daines finally managed to pull the wool over all of Montana and ultimately submit a worse version of the CSKT Compact than even Jon Tester’s rejected disaster in 2016.
The map shows the likely impact of the Daines bill’s off reservation water claims if his bill is allowed to pass. Western states: you have been warned!
The Senator shows his weakness–and by the way, in inability to fairly represent Montana–by allowing the tribal lobbyists, lawyers, tribal campaign donations, and tribal council–many of whom have no idea what is in the CSKT Compact except ‘free money’– to destroy their neighbors and the self-determination of their own people. They park themselves in Daines’ office and he lets it all happen. There is nothing redeemable or honorable about Senator Daines. If he can do this with Montana’s water, what is next? Just wait until he and Congressman Gianforte team up to deliver the rest of Montana’s water and land to the Tribes and the deep state.
Testimony of the Montana Land and Water Alliance Before the Senate Committee on Indian Affairs, May 2020
This document is submitted as testimony to the Senate Committee on Indian Affairs regarding the “Montana Water Rights Protection Act”(MWRPA) (S. 3019) introduced by Senator Daines and co-sponsored by Senator Jon Tester. 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). It does neither. We write to document our opposition to S. 3019.
What Proposal is the Committee Examining?
The MWRPA is intended to be the “implementing legislation” for the Montana-based CSKT Compact (CSKT Compact) which is incorporated by reference in only one sentence of the MWRPA. Importantly, that referenced document is the bill which should be examined by this Committee. Unfortunately, this Committee will not see the most important part of the MWRPA because it is obscured by the “additions” wrapped around it in S. 3019.
Structurally, the MWRPA is similar to a bill introduced to this Committee by Senator Jon Tester in June 2016 (S. 3013), in that both adopted in full the Montana-based CSKT Compact and “added” unrelated provisions that distract from and obscure the many precedent-setting actions and unresolved issues that remain in the original CSKT Compact. The Committee rejected S. 3013 in part because of the Department of the Interior’s failure to examine both the base CSKT Compact and the “add-ons” proposed by Senator Tester. As described in this testimony and materials, the MWRPA (S. 3019) suffers from the same deficiencies as Senator Tester’s S. 3013 and should similarly be rejected by the Committee.
Executive Summary of Testimony
In the context of the structure of S. 3019, the purpose of this testimony is to describe the fatal flaws in the MWRPA, including the serious impacts of the proposed legislation that have persistently been ignored and remain dangerously unresolved. Additionally, this testimony discusses the serious implications of the bill for the western states that have already or are currently adjudicating water rights that involve the federal reserved water rights of federal lands including Indian Reservations. In this context, a discussion of the impact of the MWRPA on those adjudications, land patents, and vested water rights is required by decision-makers before any action can be taken on MWRPA.
This testimony also reveals that there are serious agency procedural issues regarding the scope and completeness of the agency “review” of the CSKT Compact from 2013 to the present, and the current lack of any federal review of the MWRPA. Of particular concern is the extent to which federal agencies can, based on ‘internal agency policy’, reinterpret Congressional intent, create new water rights within a Winters Doctrine and McCarran Amendment proceeding, markedly change or ignore federal contracts, or effect the jurisdictional boundary between state and federal water administration without Congressional authority and oversight.
There are significant and far-reaching consequences of the MWRPA for and beyond the state of Montana that must be examined thoroughly before any action is undertaken on this bill. In the pages that follow, we discuss:
- The MWRPA is not a federal reserved water rights settlement within the context of the Winters Doctrine, existing law that precludes the claims and components of this Act, and the existing legal framework for resolving federal reserved water rights including the McCarran Amendment.
- The large “damage” award ($1.9 billion) in the MWRPA is not typical of nor related to the development of the Tribes’ federal reserved water rights, and may be more appropriately heard in the Court of Claims
- The MWRPA is based on faulty assumptions regarding whether the federal government or Tribe reserved the Flathead Indian Reservation, which leads to the creation of new “tribal reserved water rights” outside the Winters Doctrine that extend off the reservation across western and eastern Montana, expanded Tribal jurisdiction, and disruption of property rights.
- The MWRPA completely rewrites the Congressional history for the allotment, sale and settlement of surplus Flathead Reservation lands, the construction of an integrated irrigation and power project statutorily authorized to serve all citizens, P.L. 93-638, and the Indian Reorganization Act.
Please read the rest of the MLWA testimony here: May 30 Final Testimony of MLWA with maps.
 The Montana-based CSKT Compact was unconstitutionally “passed” by the Montana legislature in April 2015. The Compact contains a clause that allowed the State of Montana to have immunity from costs, damages, and attorney’s fees in the implementation of the Compact. Article II, Section 18 of the Montana Constitution requires that such a clause be approved by a 2/3 vote of each House of the Montana legislature, which was not achieved in either. The immunity clause is in two sections of the CSKT Compact and is relevant to the implementation of the Compact’s proposed water administration program. Other constitutional errors remain in the document. S. 3019 is intended to be the enabling federal legislation for Montana’s SB 262 (MCA 85-20-1901) 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 consider or approve.
 The CSKT Compact is the document that is based upon false assumptions, presents the most sweeping and precedent-setting changes to state and federal law and federal water infrastructure, yet has never been subject to an economic or environmental analysis by either the state of Montana nor the Department of the Interior since it was introduced into the Montana public in 2012.
 Montana citizens and legislators have worked diligently to both document problems and propose resolutions for the CSKT Compact problems for use by Senator Daines. These issues are summarized and documented in a short video and in the Flathead Water Solutions Handbook for Decision-Makers (September 2019), both available at https://thepeoplescompact.wordpress.com/2019/10/16/informed-decision-making-flathead-water-solutions-handbook/ and www.thepeoplescompact.wordpress.org
 The MWRPA, without supporting documentation, was briefly introduced to limited members of the Montana public in November 2019, without public comment opportunity, and was introduced to the Senate in December 2019. Neither the Senators, the CSKT, nor the United States attended county-wide meeting to discuss the MWRPA and have been unavailable to discuss the public’s concerns.
 See Letter from Secretary Bernhardt to Senator Daines, November 18, 2019.