In the past few months, judicial and regulatory bodies alike have concluded that the Confederated Salish and Kootenai Tribes (“CSKT”) Water Compact is unquestionably the best way to secure existing water rights for the use of future generations of Montanans.
The CSKT Water Compact is an agreement negotiated and enacted by the state of Montana to ensure the equitable use of Montana’s water resources and protect the existing water rights of Montanans both on and off the Flathead Indian Reservation. Without the Compact, the CSKT are, by state law, obligated to litigate their water rights in the Montana Water Court. This would mean that even those with existing water rights would be forced to defend them against the historic claims of the Tribes — which would be an uphill and costly legal battle.
Most of the tribal claims have a priority date of 1855 (the year the Hellgate Treaty was signed) or are considered to have been in existence since “time immemorial” and pre-date the majority, if not all, water rights held by farmers, ranchers, and irrigators across our state. While the court may not uphold the tribal water right claims in every instance, without the Compact each individual water right holder would be subject to the cost, time, and uncertainty of defending their rights against the Tribes’ historic claims in the Montana Water Court. This is a cost that a majority of the Montana State Legislature agreed was too high — and they were not alone in that conclusion.
Last November the Montana Supreme Court upheld the constitutionality of the CSKT Water Compact and the Montana State Legislature’s vote to pass the agreement after it had been challenged by the Flathead Joint Board of Control (“FJBC”). The decision soundly rejected the FJBC’s allegations and upheld the Legislature’s decision that the CSKT Water Compact would benefit all Montanans.
While the Montana Supreme Court was evaluating the constitutionality of the Compact, the Federal Energy Regulatory Commission (“FERC”) was deciding another matter with far-reaching implications for irrigators on the Flathead Reservation — whether the CSKT was obligated to provide low-cost power to the Flathead Indian Irrigation Project (“FIIP”) from the SKQ Dam (formerly known as Kerr Dam). FERC ruled that the CSKT had no obligation to provide low-cost power to the United States, or to the FIIP, a significant blow to the FJBC. Regardless of the FERC decision, the CSKT have committed to maintain the low-cost block of power through the Compact. Providing this low-cost power to irrigators is just one of the many concessions the Tribes have made in this decade-long Compact negotiation process.
Despite the numerous sacrifices made by all parties in the Compact, opponents like the FJBC continued to use desperate tactics to advocate against the very agreement that would protect their water resources and their ability to use the low-cost power made available to them by the CSKT through the Compact. By misusing funds collected through irrigator fees, past members of the FJBC funded lawyers and lawsuits opposing the Compact without the consent of their due-paying members. In a recent decision, District Judge James Manley concluded that the FJBC acted illegally on behalf of the irrigators because they had previously failed to conduct a legitimate election and ordered the FJBC to be immediately dissolved.
Sadly, we expect the misleading rhetoric and outlandish conspiracies to remain part of the public debate. Yet, from the FERC review to the ruling of the Montana Supreme Court upholding the constitutionality of the Compact, this carefully crafted agreement has continued to prove its critics wrong and survive the false attacks of misinformed opponents.
It is our hope that our Congressional delegation will take these recent decisions into account and will work to move this critical agreement forward to protect the future of our water resources.
Lorents Grosfield and Tom Beck are co-chairs for Farmers and Ranchers for Montana (FARM), a coalition of farmers and ranchers, united with local leaders, Indian tribes, businesses and other Montanans committed to fair water policies.