@2019 Concerned Citizens of Western Montana
The fiction that Senator Daines would like us to believe is that the Senator “solved” the CSKT Compact problem with his erroneously-named “Montana Water Rights Protection Act”. Quite the contrary, the Senator did not solve the problem. The Senator put forth structurally the same bill that Senator Tester did: he accepted the CSKT Compact in full, “wrapped” it into the “new” Daines Compact, and then added “new” and more “goodies” than even the democrat did!
As with the Tester bill, the intent of the Daines Compact is to have us all now be distracted by the “goodies” and forget about the documented problems with and substance of the provisions of the original CSKT Compact, whose true economic, environmental, and nation-wide legal precedent-setting impacts have never been examined. Witness the cover letter by Interior Secretary’ Bernhardt to the “inquiry” of Senator Daines. The same talking points we have heard for eight years.
Sprinkled into the public relations campaign are the statements that the bill “removes 97% of the off-reservation water rights” but fails to mention that this “97%” only refers to Flathead Lake claim and two associated tributaries. Thus while the Daines bill only removes 97% of the Flathead Lake claim, the Tribes retain millions of acre feet of off-reservation water from Hungry Horse Reservoir, the Swan, the Kootenai, the Clark Fork, and co-ownership in the Bitterroot River, as instream flow, with mostly time immemorial priority dates; and also retain the 10,000 claims filed by the Tribes/U.S. after the Compact passed. None of the off-reservation claims are federal reserved water rights under the Winters Doctrine. If the Senator was following the Winters Doctrine, he would have removed 100% of the off reservation water claims, and compelled the United States to formally withdraw the 10,000 claims.
We assert that instead of protecting water rights, the Daines Compact fails to protect the water rights of thousands of Montanans both on and off the reservation. For example, by altering three major Acts of Congress statutorily establishing the land ownership pattern and the Flathead Irrigation and Power Project to serve all residents, the Daines compact adds “the color of law” to the original CSKT Compact’s taking of more than 500,000 acre feet of water belonging to the private landowners, including tribal members, within the irrigation project and held by the United States for the project users. The Tribes’ management plan—which is to turn the irrigation project into a state-of-the-art fisheries project– usurps the statutory right of the project landowners to operate and manage the project. The Daines Compact simply rewrites history—supporting a long term Tribal goal, and deliberately chooses “winners and losers”, with the losers being Montana citizens who live on off-reservation private lands within the exterior boundaries of the Flathead Reservation and other off-reservation western Montana lands.
The ‘fatal’ goodies in the Daines bill sacrifice Lake and Sanders County and the National Bison range to politics. The Daines bill enables the Tribe take into trust more than 36,000 of state land within the open Flathead Reservation, devastating the tax base and lessees using those parcels for their adjacent operations. The CSKT ownership of the National Bison range raises the prospect of repeated mismanagement and or expansion of the buffalo range at private landowner’s expense and without civil recourse. What Tribe will own Yellowstone? Which one will own Glacier?
The larger impacts of the Daines Compact, if approved, have to do with its long term impacts across Montana and the west, including the off-reservation water rights claims of Tribes in Montana and in other western states; Tribal administration of state-law based water rights; the impacts on land patents and rights of way of expansive definitions of ‘reservations’; and the impacts to local governance of replacing citizen and legislative prerogatives with the objectives of the federal/tribal government. These sweeping moves regarding water, including the unresolved 10,000 claims, are related to and will hasten the American Prairie Reserve and the Bison Preserve planned for eastern Montana.
The Senator has been given the information he needs to really make a great deal for Montana through the multi-year effort of Montana citizens and citizen legislators. All that’s necessary is a desire to listen to and do the right thing for all Montanans, not just a few, and the courage to make it so.