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Tester Introduces CSKT Water Compact in Senate

Despite approval from state Legislature, tribal water rights measure requires congressional approval

U.S. Sen. Jon Tester announced Thursday that he is introducing legislation to ratify the water rights compact for the Confederated Salish and Kootenai Tribes, and while he acknowledged that it is the first step in a long process toward full congressional approval – further complicated by a $2.3 billion price tag – he said “we have to move forward.”

The bill would ratify a water rights deal between federal and state governments and the CSKT that took more than a decade to negotiate. The complex measure quantifies and defines the federally reserved water rights for the Tribe and includes protections for those with existing rights, affecting water use on the Flathead Indian Reservation and throughout western Montana.

In addition to the endorsement of state lawmakers, which the contentious measure received at the end of the 2015 Montana Legislative Session, the Flathead water compact must also gain congressional approval, and the timeframe for navigating that process is unclear.

“This is the beginning of the process,” Tester, D-Montana, said. “If we wait for it to be a perfect storm before we move forward, it will never ever happen.”

“This is a piece of legislation that has a lot of components to it, and the sooner we can start talking about it the sooner we can get it done,” he added.

Speaking to reporters during a media conference call, Tester said he would be “very surprised” if the compact received approval from the current Congress, whose session ends Jan. 3, 2017, but is hopeful that the bill’s introduction before the U.S. Senate is the first step toward gaining a “critical mass” of support and moving it across the finish line.

In order to achieve that bipartisan support, Tester said Montana’s full congressional delegation would have to be on board.

That includes U.S. Sen. Steve Daines, R-Montana, who in the past has stopped short of pledging his full support of the compact, saying that funding water compacts in the current fiscal climate presents a challenging task, and that due to budgetary constraints requires a high degree of scrutiny.

And if history is any precursor, the CSKT compact’s path to final endorsement promises to be a drawn-out process.

It took 11 years for a compact with the Crow Tribe to pass Congress after the Montana Legislature approved it in 1999, and its final passage came only after it was attached to legislation through the Cobell Settlement, the upshot of a sprawling class-action lawsuit by Native Americans against the U.S. government.

Meanwhile, the water compact with the Blackfeet Tribe still has not received congressional approval since its introduction in 2010, while a compact with the Gros Ventre and Assiniboine Tribes of the Fort Belknap Reservation, ratified by the state Legislature in 2001, lingered for a decade before the deal was introduced in Congress, where it has yet to be decided.

Tester has introduced the Blackfeet measure four times – in 2010, 2011, 2013, and 2016 – and introduced the Fort Belknap compact in 2012 and 2013. U.S. Rep. Ryan Zinke, R-Montana, said a recent House Natural Resource Committee’s hearing on the Blackfeet compact signified progress for the beleaguered bill.

Tester, a farmer from Big Sandy, said finding the money to pay for the CSKT compact poses the greatest challenge, and is actively seeking ways to offset the price tag using money from other areas of the federal budget, such as a pool of money from the Bureau of Reclamation.

“That is some serious dough,” Tester said of the $2.3 billion cost. “The vast majority of this money goes to infrastructure, but that is still a big check. And I am confident we can identify how we will pay for this compact.”

CSKT Chairman Vernon Finley applauded Tester’s effort to advance the compact, saying the Tribes have worked in earnest through on-the-ground collaboration to craft a fair measure.

“This is a resolution that was developed in Montana among neighbors, and we look forward to the federal government confirming for us the compromises and the discussions that have taken place to put this compact forward,” Finley said.

Susan Lake, a non-tribal water user whose family owns Lake Farms near Ronan, said she was skeptical about the compact when negotiations began, but has grown to support the agreement as the tribes found solutions to make it viable for her business.

“They made sure that we had enough water to grow the crops that we needed to grow,” she said. “This is a fair resolution to a complicated problem.”

Proponents of the Flathead compact include Democratic Gov. Steve Bullock, Republican state Attorney General Tim Fox and several of the state’s major agriculture groups, such as the Montana Farmers Union and Montana Stockgrowers Association.

At the Montana Legislature’s 2015 session, the CSKT water compact stood out as one of the most prominent and divisive measures, which state lawmakers passed into law only after a series of heated debates.

Less than a week after the Legislature passed the bill ratifying the compact, the opponents filed a complaint challenging the validity of the legislative action. The plaintiffs are irrigators on the Flathead Joint Board of Control, which oversees irrigation districts on the Flathead Indian Reservation.

The lawsuit contends that the state constitution requires a two-thirds majority vote from the House and Senate in order for the state to receive sovereign immunity from litigation. The House passed the bill on a simple majority.

The Flathead water compact is the last of seven tribal water rights compacts passed by the state. It joins both the Blackfeet and Fort Belknap compacts in the wait for federal approval.

The CSKT compact was by far the most difficult to negotiate because it also addresses tribal rights outside the boundaries of the reservation.

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