Montana Gov. Steve Bullock has responded to a letter from the Flathead County Commission that opposed the proposed water compact with the Confederated Salish and Kootenai Tribes, in which Bullock said the commission’s concerns are “rooted in significant misunderstandings about the Compact.”
Despite the governor’s response, Commissioner Phil Mitchell, the driving force behind the commission’s opposition letter, said he stands by his criticisms.
On Jan. 8, the commission voted 2-1 to send a letter opposing the compact, listing multiple concerns about the process and the document the Montana Reserved Water Rights Compact Commission negotiated with the CSKT.
Bullock’s Jan. 21 response letter systematically responds to each concern the commission outlined in its letter. The concerns included granting the tribes off-reservation water rights for the first time in the state’s history of forming such agreements, and the amount of acre-feet of water per tribal member the compact would allow.
The commission’s letter also opined that the compact doesn’t comply with Montana’s Constitution, in regard to Article IX, which asserts that the state’s water is property of the state and for use by the people.
There was also concern about the proposed $55 million payment to the tribes.
The letter asked for five changes to the compact: to provide a specific amount of water quantification of the federal reserved water right for the reservation; to eliminate the mutual defense clause so Flathead County citizens “will not have to fight the state of Montana when defending their water rights;” to bring the compact into compliance with Article IX; eliminate taxpayers having to pay any amount of money to the CSKT; and that all claims of off-reservation water rights be removed from the compact.
In his response to the commission, Bullock wrote about how the compact commission has successfully negotiated 18 such compacts, and that the latest version of the document, released earlier this month, includes “improvements,” such as water delivery entitlements for irrigators; a new technical team to ensure irrigator needs are met while fulfilling in-stream flow requirements for the tribes; and local government participation in nominating appointees to the water administration board.
Attached to the letter is a six-page memo from Bullock’s chief legal counsel, Andrew Huff, responding to each of the county commission’s listed concerns.
“I believe – based on my engagement with this issue over the course of the last two years – that many of your concerns are rooted in significant misunderstanding about the Compact,” Bullock wrote. “As the memorandum makes clear, the Compact protects the homes, businesses, and communities of Flathead County.”
Bullock also wrote that state Attorney General Tim Fox agreed with his legal counsel’s findings, and that the governor hopes the commission reconsiders its opposition.
“The negotiations have resulted in a fair compromise which protects the interests of the parties and stakeholders,” Bullock wrote. “I would not support an agreement that did otherwise.”
Mitchell, who was the primary architect behind the commission’s letter to the state, told the Beacon that though he hadn’t yet read the governor’s letter, he was going to stand by his opinions about the compact.
“It seems like you can come up with any answer you want from legal angles,” Mitchell said.
When told the letter noted that “at the outset [CSKT] has, as part of the proposed Compact, agreed to cede the vast majority of its off-reservation water rights claims,” Mitchell said a vast majority isn’t enough.
“The vast majority – it’s not all, that’s the problem,” Mitchell said. “They don’t need anything off the reservation – zero – whether it’s Hungry Horse Dam or Flathead Lake.”
Huff’s response says the commission is correct that the CSKT compact would be the only one including off-reservation water rights, and the reason is “very straight forward,” because CSKT are the only tribes in Montana to have entered into a “Stevens Treaty,” referring to the group of treaties that includes the Hellgate Treaty from the 1850s, which preserve off-reservation fishing rights for tribes and have been held up in the U.S. Supreme Court.
As for the concern that the CSKT quantifies more water than any previous compact, Huff writes that the county commission’s letter inflated the acre-feet-of-water-per-person ratio because it rolled in-stream flow rights and consumptive use rights together, and the two aren’t equivalent.
“Further, the chart attached to the [county commission’s] letter contains no information as to the methodology behind its calculations and is therefore impossible to assess for accuracy,” the memo states.
As for the commission’s assertion that the compact will have “dire consequences” to Flathead County citizens and businesses, Huff notes that the county didn’t provide reasons or facts to support that statement.
In response to the concern about the $55 million payment, Huff wrote that $42 million of that money will directly benefit Flathead Indian Irrigation Project irrigators, “who are primarily non-Indian.”
“In objecting to the funding proposed to support the Compact, the [county commission] is objecting to badly needed improvements to the irrigation infrastructure relied upon by irrigators in the Flathead River drainage below the lake,” the memo states.
Huff also wrote that the commission did not provide any reasoning or facts as to why the compact may not comply with the state Constitution, and that the compact would in fact end the legal uncertainty about water use applications on the reservation.
In an interview, Mitchell said he still has issues with the tribes “never quantifying what they want” as far as water amounts, which the memo addresses as well.
Another of Mitchell’s concerns is the water administration board, which he believes should not include tribal members because they have no jurisdiction over Montanans.
“My frustration is the Salish Kootenai tribe is a sovereign nation on their own,” Mitchell said. “They are not a part of the United States; they are when they feel like it, when they want federal funds, but they are not a part of us.”
He also said that while he isn’t a lawyer, he’s frustrated by the negotiations using whichever treaties they want.
“How do you pick and choose what you feel like picking out here, and that frustrates me,” he said.
Furthermore, Mitchell said he feels that by entering into this compact with the tribes, the state could end up in a situation where they could be prosecuting Montanans and siding with the tribes while on the water administration board.
“You do not represent the tribe, you have no way in hell to represent the tribe; they are their own sovereign nation,” he said.
Commissioner Gary Krueger, who voted against sending the Jan. 8 letter, said in an interview that he thought the governor’s letter and memo sufficiently answered the commission’s questions and concerns about the compact.
“I believe they were answered, or there was insufficient documentation on our part, on the commission’s part, to be able to answer them,” Krueger said.
He added: “I believe that in light of those answers we should reevaluate our position.”
Krueger did not specify whether that new position might include a new letter to the state.
Mitchell said that regardless of the answers in the governor’s letter and memo, he believes the compact will be detrimental.
“If this compact goes through, I believe some of the other compacts that were approved are going to be renegotiated,” Mitchell said. “I do believe we’re setting new precedent if this passes and that scares the bejeebies out of me.”
Mitchell also objected to the timing of the latest version of the compact, because it came during the 2015 Legislature, at which it will face approval, and arrived two days before a public meeting to discuss the document.
Calls to Commissioner Pam Holmquist, who along with Mitchell voted to send the opposition letter, were not immediately returned.