Water Wrongs

By Beacon Staff

Like many Westerners, I follow water rights issues, usually with the kind of horrified fascination reserved for train wrecks and other disasters. Over the years, combat reports from water war zones (such as the lower Colorado, the Owens Valley, and more recently the Klamath Basin) left me grateful such epic nastiness doesn’t happen in Montana.

Then about six years ago, along came Avista’s notorious water call for its Noxon Rapids and Cabinet Gorge dams on the lower Clark Fork. Montana legislators, led by Verdell Jackson (R-Kalispell), swung into action … the result being Avista realized their error, and everyone else made the “discovery” of about 100,000 acre feet of “spare” water in Hungry Horse not yet spoken for. Good news, that.

In the meantime, the process of setting aside “federal reserved water rights” for federal lands (parks, refuges, forests and grasslands) and Montana’s seven Indian reservations looked to be drawing to a close after 34 long years, with all federal lands and all but one Indian reservation compact agreed to by our Legislature.

The last of 18 compacts, with the Confederated Salish-Kootenai Tribes of the Flathead Reservation (CSKT) remained. Over a thousand pages, it was made public just days before the 2013 Legislature was to go into session.

Not only did CSKT claim all reservation waters, but state water rights held by non-tribal irrigators (who own 90 percent of irrigated reservation lands) would be voided in favor of Farm Turnout Allowances set at a flat 1.4 feet per year.

CSKT also claimed water rights off reservation in the form of enforceable minimum instream flows, with a super-senior priority date of “time immemorial,” a condition no other Montana tribal compact allows. From the Bitterroot to the Swan to the Flathead, even the Kootenai, these flow rights would be co-owned by FWP and U.S. Fish and Wildlife, also an unprecedented arrangement with unknown impacts.

Next, all major agricultural irrigators hydrologically connected to these rivers (basically every producer in western Montana) would be subject to call if instream flows fell short.

Last but not least, remember that “spare” Hungry Horse water? Every drop would become CSKT property, for them to lease (or choose not to lease) to new water users.

The Legislature refused the compact. But Confederated Salish-Kootenai tribal leaders are not interested in re-negotiation – after all, they have asserted their interests admirably well of late:

The CSKT do a bang-up job managing tribal forest lands – many wish the feds were half, even a fourth, as effective. They have a fine tribal college, and S-K Industries scores plenty of competitive government and private business contracts.

CSKT has also scored a long line of legal and policy victories: Full self-governance in 1993, the Yellowstone Pipeline shutdown; Flathead Lake fisheries joint management; Bison Range management; Flathead Irrigation Project (FIP) management; Kerr Dam revenue shares, flows, and possibly-soon ownership; $150 million from the Nez Perce settlement; U.S. 93 reconstruction; $18 million plus Milltown Dam’s water right – very impressive.

Never mind that back in 1979, the CSKT were first to litigation, then withdrew their lawsuit while other tribal compacts in the Northwest (not just Montana) went through negotiations. Only after Brian Schweitzer became governor and appointed his people to the Compact Commission did formal, regular compact negotiations resume.

Savvy timing? You bet.

Waiting for other court battles to firm up the tribe’s legal position, as a Stevens Treaty tribe bolstered by “Winters doctrine,” plus “Boldt” and Adair precedents, was brilliant strategy – summed up by elder Pat Pierre to the Missoula Independent last year: “We use your weapons of war to fight back now.”

Frankly, the CSKT hold an incredibly strong legal hand.

I can understand why tribal members and leaders view this compact as justice. Righting 157 years of wrongs, from the dime-per-acre 1855 treaty, the 1904 Flathead Allotment Act that opened the reservation to whites, the FIP built for whites, the resultant minority status of CSKT members on their reservation, the 90 percent non-tribal ownership of prime reservation farmland – the CSKT certainly deserve justice.

But what this compact seems to seek, is revenge.

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