LETTER: Consequences of Compact Must be Studied

By Beacon Staff

The dialogue now underway in these pages about the CSKT Compact should have happened more than a year ago. If it had, perhaps today we would have a CSKT Compact that would have gotten beyond the “we never said that” response to the core of the Compact so that legislators and the public could make an informed decision. Issues such as the ownership of water rights on private land and equal protection under a new water administration program that includes non-tribal members are real concerns with legal and economic consequences that must be examined.

For the express purpose of bringing forward a successful CSKT Compact, this responds to Chairman Joe Durglo’s letter (Aug. 21 Beacon: “Water Compact Falsehoods) regarding the public concerns raised about the current Compact. The chairman cited five points that he called “misinformation.” However, it is clear that the concerns raised by the public come from the language in the Compact itself, including the appendices. I have clarified the following points below:

1. CSKT claimed all the water. When you add up the water in the abstracts of the Compact, all the water that is physically available on or bordering the Flathead Indian Reservation is claimed by the United States Department of the Interior and held in trust for the CSKT, including all of Flathead Lake. That the Tribe owns all the water, or that the United States owns all the water in trust for the CSKT, has been the Tribes’ position since 2001. News articles, DNRC newsletters, and the Tribes’ 2001, 2007, and 2010 negotiation proposals all assert this claim as a basis for the Unitary Management Ordinance.

2. CSKT claimed all state water rights held by non-Indian irrigators. There is just no need to “spin” this one anymore, the FIIP Water Use Agreement clearly states that irrigators are required to relinquish their water rights, and Article III C 3(a) claims that the FIIP water is part of the Tribes’ water right. “Bringing the irrigators water rights under the umbrella of the Tribes’ water right” is exactly what Judge C.B. McNeil found to be an unconstitutional taking without compensation of property rights, i.e. water. Even the U.S. admitted it had to investigate the title issue for the federal irrigation project irrigators, and the Flathead Joint Board of Control is setting that issue forth for the negotiating parties after it completes public hearings on the issues chosen for review. This is a positive development because it has the potential of being resolved with all parties’ attention to it. If the chairman is saying that the CSKT will not move from this position, that is another story. If title to the water right is an issue now in negotiations, it will also be later in the Montana Water Court. Let the issue be discussed and resolved.

3. CSKT Claimed water rights off reservation with “super senior” priority dates and flow rights would be co-owned by FWP and US Fish and Wildlife. No matter who offered those off-reservation water rights, they are in the Compact, affect all of western Montana, and are new, large, instream flows added to and some are distinct from FWP’s system. A few have aboriginal priority dates. Federal reserved water rights only apply on-reservation, not off-reservation.

4. All major agricultural irrigators hydrologically connected to these rivers and every western Montana producer would be subject to call if instream flows fall short. The point at issue is not who gets called or when, it is whether the Tribes have the authority to exercise any jurisdiction over or call of water off-reservation, and further, whether off-reservation Treaty rights should be considered in a federal reserved water rights proceeding.

5. Every drop from Hungry Horse would be CSKT property. It is understood that of the Hungry Horse allocation provided in the Compact, 90,000 acre feet is for use by the Tribes to “backstop” any impact of its water use. The chairman newly asserts (can’t be found in the Compact) that the 11,000 acre feet of the 90,000 acre feet provided to the state for mitigation is to be leased by the Tribes to individuals. Or did he reveal another piece of the Compact puzzle the public does not yet understand?

These are just some of the issues that caused the Compact to fail at the legislative level and should be examined and resolved in order for a CSKT Compact to succeed. We hope that the shairman will ensure that the upcoming Compact Commission’s report sincerely addresses these issues instead of shooting the public messenger.

Mushi Roosh

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