Opposition to Water Compact Based on Fear, Misunderstanding

We believe that rejection would lead to years of litigation

By Sen. Dick Barrett & Sen. Bruce Tutvedt

As members of the Montana Senate who come from opposing parties, we have often found ourselves disagreeing about political values, legislative proposals and our constituents’ interests. But one thing we do agree on is that there are times when we all should leave our politics, animosity and distrust at the door and work together to find practical, fair solutions to pressing issues. That’s why we support the Confederated Salish and Kootenai Tribes Water Compact and will work for its approval by the 2015 Legislature.

Over three decades ago, the Montana Legislature recognized the potential for serious conflict between the reserved water rights claimed by federal agencies and Indian tribes, and the state-based rights claimed by farmers and ranchers, state and local governments, households and businesses. Rather than letting these conflicts be resolved by courts after long and expensive legal wrangling, the Legislature set up the Reserved Water Rights Compact Commission and charged it with settling disputes out of court, through negotiation.

Montana’s compacting process has been an outstanding success. It’s taken a while, but we now have 17 negotiated compacts that resolve all outstanding federal reserved water rights claims, except those on the Flathead Indian Reservation. The reason for that success is that negotiation in good faith works, and it is working in the Flathead.

Although there is still an important piece of the agreement being negotiated, the state, the federal government and the Confederated Salish and Kootenai Tribes have already agreed to a settlement that complies with Montana’s Constitution and water laws and will

• Allow the adjudication of water rights on the reservation to be completed, giving households, businesses, farmers and ranchers clear title to their water rights and providing certainty regarding ownership of the private properties to which those rights are attached.

• Protect all existing on-reservation, non-irrigation water rights from call by the Tribes.

• Make a substantial amount of water from Hungry Horse reservoir available to mitigate the impact of future development in the Flathead and Clark Fork drainages.

• Provide for the infusion of both State and Federal funds to improve the efficiency and infrastructure of the Flathead Indian Irrigation Project.

• Recognize historic Tribal claims to water for fisheries off the reservation in a way that protects almost all existing off-reservation irrigation use.

• Create an authority for managing on-reservation water rights in the future in which the Tribes and the state will participate as equal partners.

• Quantify a right to water that the Tribes can use for development on the reservation or lease off the reservation but within Montana

The piece of the Compact still being negotiated concerns the allocation of water between the Flathead Indian Irrigation Project and in-stream flow to protect fisheries on the many waterways on the reservation. The goal of all the parties is to assure that through improvements to the project and its operation, senior Tribal claims for in-stream flows to promote healthy fisheries will be recognized without curtailing crop consumptive use of water by Project irrigators.

While we believe that the Compact is a good deal for all parties concerned, it would be foolish to ignore the fact that it has run into bitter and strident opposition as well. We think that much of that opposition is based on fear, old animosities and misunderstanding of what the Compact does and doesn’t do. It simply isn’t true, for example, that the Compact will “take” water rights or private property. It won’t “give the Tribes control over all the water in western Montana.” It won’t end ranching and farming on the reservation.

These fears and misunderstandings concern us deeply, and we urge all Montanans to take the time to examine closely what has been achieved in these negotiations and to consider carefully the implications of rejecting this agreement. We believe that rejection would lead to years of litigation, untold costs to be borne by individuals and very little prospect of a court determined outcome superior to the benefits the compact now provides.

But our support for this Compact does not come by default. It comes, rather, from our conviction that the settlement has been negotiated in good faith, is fair and practical and will serve well the interests of all Montanans.

Sen. Dick Barrett, D-Missoula
Sen. Bruce Tutvedt, R-Kalispell