Well, Montana’s Reserved Water Rights Compact Commission finally issued its agreed-upon “Report on the Proposed Water Rights Compact” between Montana and the Confederated Salish-Kootenai Tribes (CSKT).
Shortly after, Lake County commissioners declared their neutrality on the Compact, a giant step back from their 2002 position that “state jurisdiction of water rights must be maintained for fee properties” on the Flathead Reservation served by the Flathead Indian Irrigation Project (FIIP).
Nearly simultaneously, Flathead County commissioners held a surprise hearing during the holiday season, voting 2-1 to issue a rather namby-pamby letter in support of a “compact process” and an “agreement that can be fair, equitable, and respectful of individual rights which can protect and promote the interests of the citizens we serve.” Can – not will.
Why the pussyfooting? Fear, of course.
Frankly, case law is pretty favorable for CSKT, who are a few of the Northwest tribes “lucky” enough to have been browbeaten and intimidated by Washington Territory Governor Isaac Stevens into signing a Stevens Treaty back in 1855.
All Stevens Treaties are “boilerplate,” much of which is ignored as inoperative. But some wording has become holy writ to tribes and their lawyers: Article III of the Hellgate Treaty gave tribal members an “exclusive right of taking fish in all the streams running through or bordering said reservation [and] also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory.”
Courts have since vastly expanded the “in common” right, with some Northwest tribes entitled to fully half of present allowable (and unfortunately diminished) catches. More importantly, courts empowered Stevens Treaty tribes to claim enforceable “time immemorial” rights to the in-stream water needed to maintain aboriginal fisheries off reservation.
Is that fair? Doesn’t matter. Litigation during drought in the mid-1980s led to a Ninth Circuit Court ruling that for CSKT as a Stevens Treaty tribe, “only after fishery waters are protected” could Flathead irrigation districts “distribute fairly and equitably the remaining waters among irrigators of equal priority.”
If the Montana Legislature turns down this compact, the tribes have threatened to file scads of claims for tribal time-immemorial water rights not only in Western Montana, but on the upper Missouri, Musselshell and Yellowstone rivers. Once filed, CSKT water attorneys will have their choice of which claims to contest first.
Considering that CSKT was first to court and last to the negotiating table, starting from a position that they owned all reservation waters outright, is it any wonder that Montana irrigators are scared absolutely spitless of being first in line for an expensive court battle?
Even better, other non-irrigation water users – cities, commercial industries, domestic water associations – will all be vulnerable to disruptive water calls if the CSKT make a successful claim to an aboriginal water right.
Compact proponents are promising “certainty” upon acceptance. For example, the old Milltown Dam minimum flow right won’t be enforced by the tribes for 10 years. Afterward, CSKT water attorneys will certainly be free to call junior irrigators in the Clark Fork and Blackfoot basins.
FIIP irrigators are being told their water would have an 1855 priority date, which sounds good until you understand FIIP irrigators, tribal or non-tribal, would be limited to “the Farm Turnout Allowance or the historic use of the water right, whichever is less.” Of course, irrigators needing more water will be able to buy additional water from CSKT – and CSKT will have plenty to sell.
Today, there are 90,000 acre-feet of unallocated water hanging in Hungry Horse Reservoir. Ironically, that water was “found” via legislation spearheaded by Compact opponent Sen. Verdell Jackson. Under the proposed Compact, that “new” water would all become CSKT property.
The tribes have agreed to make 11,000 acre feet (AF) available for mitigation at $40 per acre foot ($440,000 per year), indexed to inflation. Access to the other 79,000 AF would be subject to “the discretion of the Tribes.”
One “certainty:” Under the Compact, new water users will be paying CSKT whatever the market will bear.
One other certainty: the Compact is not so much about water flows for fish as it is about fishing for cash flows.