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House Endorses Flathead Water Compact

In 53-47 vote, House passes Senate Bill 262, which now faces final vote before heading to governor

By ALISON NOON, Associated Press
Beacon file photo

HELENA — Montana representatives on Wednesday endorsed a negotiation decades in the making to settle the use of water on and around the Flathead Reservation.

After nearly 20 cumulative hours of testimony and debate in the Legislature, Senate Bill 262 garnered the support of 12 Republicans and all 41 House Democrats in a 53-47 vote. If it passes a final vote in the House on Thursday, Democratic Gov. Steve Bullock has promised to sign it.

“It’s a sign of our times that one of the most controversial bills this session or perhaps any session is about water,” Minority Leader Rep. Chuck Hunter, D-Helena, said during a three-hour debate on the House floor Wednesday. He added, “I think we all recognize that what was once abundant in Montana and across the country is becoming ever more scarce, and we have to deal with that scarcity.”

The measure would put the state’s stamp of approval on a negotiation of the Confederated Salish and Kootenai Tribes and the state and federal governments to recognize the tribes’ time immemorial right to use water that dates back to an 1855 treaty.

It also includes water measurements and delivery entitlements to maintain the historical amounts of water used by thousands of non-tribal irrigators on the reservation and protects other existing water users.

The proposal has been met with stiff opposition in the Legislature by farmers and ranchers who say they would lose water if the tribes are granted general oversight of the commodity. Other irrigators say they are comfortable with the proposal because it requires the tribes to deliver irrigators with the amount of water they’ve historically used.

Republican Rep. Nicolas Schwaderer said the proposal has ripped apart communities in his district of northwestern Montana that covers nearly half of the Flathead Reservation.

“We have folks who used to be so close to each other and are now at each other’s throats in our area because of this issue,” Schwaderer said before voting against SB262. He added, “Whatever happens on this vote today, these wounds aren’t going to heal for a while, and I think that’s the biggest tragedy in this whole process.”

If the deal fails in the Legislature, the CSKT Tribal Council has stated it will petition for water in court ahead of a June 30 deadline for such claims to be considered. A 1979 law originally set the deadline for the late-20th century, but it was extended to allow tribal water negotiations to continue.

Opponents have called the proposal legislation through intimidation because tens of thousands of Montanans could potentially be challenged for their water use rights if the compact fails.

Republican Rep. Steve Fitzpatrick of Great Falls studied the agreement on an interim committee and carried SB262 in the House. He said the best outcome that non-tribal state residents could hope to get out of legally challenging the tribes — a guaranteed delivery of the water they’ve historically used — is in the compact.

Republicans opposed to the compact tried to attach about 30 amendments to the proposal throughout the legislative process and, although some passed, amended versions of the bill were ultimately turned away in favor of the negotiated language.

“I think you’re now just down to philosophical objections,” Fitzpatrick said before the vote.

Speaker of the House Rep. Austin Knudsen, R-Culbertson, and conservative Republicans attempted and failed this week to require the proposal to receive approval from two-thirds of the entire Legislature.

Solicitor General Dale Schowengerdt told Code Commissioner Todd Everts in a Tuesday email that every other tribal water compact has included language substantially similar to the portion that Knudsen objected to. Those did not require the expanded approval.

“I’m here to tell you there’s going to be litigation no matter what you do today,” Rep. Art Wittich, R-Bozeman, said on the House floor.