With deadlines looming in the roiling water war on the Flathead Indian Reservation, a new report by the Montana Reserved Water Rights Compact Commission details problems that would bubble up if the controversial deal fails to pass muster next legislative session, and sets the compact on track to go before the 2015 Montana Legislature for approval.
The report was commissioned by Gov. Steve Bullock and addresses questions about the deal, known as a water compact, raised by the 2013 Legislature, which tabled the bill. It recommends approval of that same bill, and also states that the Confederated Salish and Kootenai Tribes are preparing to file widespread claims in the event the next Montana Legislature does not ratify a negotiated settlement.
Although the tribes will not share the details of those claims before filing, they have indicated there will be substantial claims for rights to instream flows throughout their “aboriginal subsistence range,” both on and off the reservation, according to the report.
“Courts have already upheld the tribes’ interim instream flows against the Flathead Joint Board of Control, finding that the instream flow rights have a priority date of ‘time immemorial’ and must be satisfied before (Flathead Indian Irrigation) Project deliveries,” the report states. “In addition to these ‘time immemorial’ instream flow rights, the Tribes have significant on-reservation water rights with an 1855 priority date.”
The tribes have also said that without settlement of the proposed compact, which is a decade in the making, the claims to off-reservation instream flows will be “far more extensive and widespread” than the eight individual and 14 co-owned rights agreed to in the proposed compact, according to the report.
The report by the commission was prepared at the behest of Bullock, who requested it in a veto of Senate Bill 265, sponsored by Sen. Verdell Jackson, R-Kalispell. That bill would have reopened negotiations with the tribes by extending deadlines.
In his veto letter, Bullock directed the Compact Commission to prepare a report addressing questions raised about the compact, and says the tribes and the Commission completed fair negotiations and agreed to a water compact in good faith.
“SB 265 serves no useful purpose and needlessly delays the Montana General Stream Adjudication to the detriment of tens of thousands of Montana water users,” Bullock wrote.
Sorting out water rights has been the state’s aim since 1979, when the Montana Water Rights Compact Commission was created by the Legislature.
“Both sides have made concessions, Bullock wrote of the agreement. “The compact is a reasonable settlement of the CSKT’s water rights claims that provides necessary protections for all affected water users in Montana.”
The Compact Commission met in February and voted 8-1 to recommend taking the proposed settlement to the current Legislature for approval. Introduced as House Bill 629, the compact bill, which along with its appendices totals more than 1,400 pages, was tabled in the House Judiciary Committee.
If the Legislature approves the compact, it must then be ratified by Congress — a process that is expected to take at least several years — and will also involve hearings and debate.
If the compact receives congressional approval, the water rights outlined in the compact will then go to the Montana Water Court for formal adjudication.
The compact has been languishing for the past decade as the Compact Commission tries to resolve a bitter battle over the water rights of the tribe and water users like farmers and ranchers. It earmarks $55 million in state money to improve the reservation’s water systems and clarifies water claims that date back to 1855 and the Treaty of Hellgate, in which the tribes ceded more than 20 million acres of aboriginal homeland to the United States.
If the 2015 Legislature does not approve the settlement, which was agreed to after more than a decade of negotiations between the state, tribes and federal government, the tribe must file the claims by June 20, 2015, a deadline that has already been extended from 2013.
The essence of the dispute dates back centuries as the United States has struck treaties with indigenous people, raising questions about who has a claim to the land and its resources.
Of the Flathead Indian Reservation’s more than 28,000 residents, only about 7,000 are American Indians, according to census data.
“The Montana Supreme Court has held that Montana must apply federal law in resolving Indian water rights,” the report states. “Because of this legal analysis, the solution proposed by the compact — to recognize a limited number of instream flow rights off-reservation with limitations and protections to ensure that all existing state water rights are protected — seems far preferable to having the tribes file numerous claims as far east as the Upper Musselshell and lower Yellowstone rivers.”