Battle Over Flathead Water Rights Faces Specter of Litigation

By Beacon Staff

In 34 years, Montana lawmakers have approved 17 out of the 18 water rights compacts to come before the Legislature, counting settlements for the C.M. Russell National Wildlife Refuge and Upper Missouri River Breaks National Monument, which recently cleared the House on their way to the governor’s desk.

The only compact that legislators have rejected since the Montana Reserved Water Rights Commission was established in 1979 is an expansive agreement to forever settle the Confederated Salish and Kootenai Tribes’ water rights on and off the Flathead Indian Reservation.

Two weeks ago, the House killed two separate compact bills: one to ratify the Confederated Salish and Kootenai Tribes’ water settlement after a decade of negotiations and another to study the settlement’s potential impacts for two more years before ratification. The votes came after lengthy hearings in which large numbers of compact supporters and opponents spoke at the Legislature.

Jay Weiner, an attorney from the state Attorney General’s office representing the compact commission, said the tribes now have to decide whether in light of the Legislature’s actions they would still be willing to continue negotiating a settlement they believed to be fair and finalized, or if they would rather pursue their claims in water court.

“All 17 other compacts have passed by very large bipartisan majorities,” Weiner said. “This hasn’t happened ever in 34 years. It’s unchartered territory, so the state trying to figure out what comes next is going to be a process of conversation.”

He added: “The ball is in the tribes’ court at this point.”

Rep. Dan Salomon, R-Ronan, a member of the compact commission, said the compact’s future is murky at best, with the revival of negotiations appearing less likely than litigation. Salomon, an irrigator on the Flathead Indian Reservation, supported ratifying the settlement as a better and more equitable alternative to adjudication.

“There’s a high likelihood of things being settled in court now,” Salomon said.

Meanwhile, the Senate advanced a measure proposing to extend the Reserved Water Rights Compact Commission for two more years in the hopes of continuing negotiations, and the House was expected to pass it as well after receiving the green light in a House committee.

The compact commission, established in 1979, is set to expire on July 1 of this year. Senate Bill 265, introduced by Kalispell Republican Sen. Verdell Jackson, would extend the commission until July 1, 2015. The bill was expected to receive a House floor hearing this week, according to Jackson. But he acknowledged that the governor, who supported approving the compact, could veto it.

As it currently stands, Weiner said the tribes’ deadline for filing water rights claims is 24 months from July 1. If Jackson’s bill passes, that deadline extends two years to July 1, 2017.

Salomon said Jackson’s bill keeps alive the chance of bringing the tribes back to the table, but it doesn’t offer good odds.

“It gives that one in a million or billion chance of something happening,” he said. “The tribe would have to show up and so would the United States, and the United States isn’t very happy either. As trustee of the tribe they need to stand up for them.”

Of the compact commission’s 17 other negotiated water settlements, six are tribal. The Confederated Salish and Kootenai tribes’ compact is the last remaining tribal water agreement in the state. It must be approved by the Legislature, tribal government, U.S. Congress and the state water court, a process that could take years.

Separate negotiations over a water-use agreement for the Flathead Indian Irrigation Project – considered a vital component of the overall compact – have been tied up in litigation. The Montana Supreme Court on April 9 struck down a district court ruling in favor of a group of irrigators opposed to the water-use agreement, though the Western Montana Water Users Association said on its website that it was victorious on one finding.

Robert McDonald, communications director for the tribes, said the tribes have been “consistent in our message” in stating their preference for a negotiated compact over litigation, while holding out the option of going to court. That message hasn’t changed, though he noted that the Legislature rejected their first choice: a compact.

“From the start we were clear that if we don’t get a compact we are prepared for litigation,” he said. “We are still prepared for that option.”

But McDonald pointed out that the Legislature is still in session and nothing is set in stone yet.

“We chose the path of negotiation and we gave up quite a bit, but evidently that was not enough,” he said.

Jackson said the Legislature needs more time to sort through such a complicated water rights agreement, and noted that the lengthy ratification bill from Rep. Kathleen Williams, D-Bozeman, was introduced late in the session. Salomon had also proposed a ratification bill but chose not to introduce it because he didn’t think it could pass.

Jackson has been an outspoken opponent of the Flathead compact, and also voted against two other compacts this Legislature. Joining Jackson in opposing the bill were irrigators and property owners who showed up in masses at legislative hearings. Numerous supporters, including tribal members and irrigators, traveled to Helena as well.

Jackson was one of only two out of 50 senators to oppose the C.M. Russell National Wildlife Refuge compact and one of only four senators to oppose the Upper Missouri Break National Monument compact.

Though he said he prefers continued negotiations, Jackson acknowledged the possibility of adjudication. He thinks the Flathead compact has faltered at the Legislature when other compacts have not because of its complexity and far-ranging implications.

The Kalispell Republican noted that the CSKT compact is the only tribal water agreement with an off-reservation component, which has implications for much of western Montana and has led to opposition from county commissions.

“We’re talking about a compact that was much larger than the compacts in the past and we have off-reservation water rights that affect 11 counties,” he said.

“It’s a contract,” he added, “and once it’s done, we can’t change it. It’s forever.”

Reiterating his stance that a negotiated compact was the fairest and best option, Salomon said rejecting the settlement will likely have consequences that weren’t anticipated by opponents.

“Now we’re going to go into unchartered territory, so we’ll see where that takes us,” he said. “Unfortunately, I have an idea of what that’s going to be and it’s not going to be pretty. People had to learn the hard way.”

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