A proposed legislative agreement between the Confederated Salish and Kootenai Tribes and state and federal governments would resolve an age-old conflict over water rights on the Flathead Indian Reservation while restoring tribal management of the National Bison Range, striking an accord that tribal leaders hailed as “an elegant solution.”
As U.S. Sen. Steve Daines, R-Montana, prepared to release details of his Montana Water Rights Protection Act this week, he said the hard-fought negotiations would require CSKT to permanently relinquish 97 percent of its off-reservation water claims across Montana, including all of those in the Flathead Valley. A version of the bill that emerged Tuesday includes a $1.9 billion price tag to settle the Tribes’ federal damage claims and rehabilitate the Flathead Indian Irrigation Project, a federally established network of diversion works, canals and other infrastructure that serves 127,000 acres of agricultural land, and which has fallen into varying degrees disrepair. The bill would also give Lake and Sanders counties $10 million for road infrastructure.
“This is part of the agreement and compromise reached in exchange for the Tribe making significant concessions to water claims, including all in the Flathead,” according to a statement from Daines. “Importantly, the legislation will protect public access by law – something that hasn’t been done before. It will also save taxpayers one to two million dollars per year, in addition the $400 million the settlement saves taxpayers overall.”
During the 2015 Montana Legislature, state lawmakers endured a firestorm of controversy before ratifying the CSKT water compact, which was designed to settle and avoid thousands of water-rights disputes between tribal and non-tribal users that would have carried exorbitant litigation costs; however, the measure still requires approval from both federal and tribal governments, which until now has proved elusive.
Tribal leaders expressed support for the proposed legislation, which in addition to ratifying the compact also settles damages brought by the federal government for mismanaging the Tribes’ water and water rights guaranteed under the 1855 Hellgate Treaty.
Another major incentive for the Tribes lies deep within the proposed bill’s 65 pages of text and deals with the transfer of management responsibilities surrounding the National Bison Range, shifting its oversight from the federal government’s purview to the Tribes’.
As part of the settlement of the damage claims, the legislation would restore the National Bison Range to federal trust status for the Tribes, which was the status of the land under the Hellgate Treaty. The legislation would require the Tribes, as opposed to the U.S. Fish and Wildlife Service (FWS), to manage the Bison Range for bison and wildlife conservation, as well as for public access.
The Tribes have long sought to reclaim their responsibilities over the bison and the federal lands they graze, but those efforts have repeatedly been thwarted.
“Restoring the Bison Range to federal trust ownership for the Tribes is an elegant solution that would correct the historic injustice of the United States’ taking the Bison Range from the Tribes’ treaty-reserved homeland without Tribal consent,” CSKT Chairman Ronald Trahan said. “It would also save taxpayer dollars and allow the Tribes’ award-winning Natural Resources Department to manage the land and wildlife as part of the extensive network of Tribal conservation lands that surround the Bison Range. It would mark a return to making things whole again.”
The National Bison Range occupies a postage stamp of federally managed land hemmed in by a sprawling a network of tribally designated conservation areas, many of which dwarf the Bison Range in size and include large-scale wetland restoration and wildlife improvement projects that are considered models of conservation. The restoration of management responsibilities on the Bison Range would allow the Tribes to manage the refuge as part of its conservation network, which tribal leaders said would result in more holistic and consistent wildlife management.
Federal and tribal officials stressed that removing the Bison Range from the National Wildlife Refuge System is not without precedent. In past decades, the federal government removed three other Montana refuges from the National Wildlife Refuge System, including the Fort Keogh National Wildlife Refuge, which, at 56,954 acres, was three times the size of the National Bison Range.
Since 1994, tribal leaders have pursued both transfers and joint management arrangements with the U.S. Department of the Interior, which oversees the FWS. Every effort has met various stumbling blocks, however, and the past two decades have been replete with lawsuits and accusations of mismanagement by both CSKT and FWS.
In exchange for the Tribes assuming management responsibilities, it will make significant concessions to all water claims in the Flathead Valley. The provision also saves taxpayers money by eliminating federal appropriations for the range’s management, according to a Daines spokesperson.
As details of the legislative framework surrounding the permanent water settlement trickled out this week, Daines noted that his proposal is cheaper than alternative proposals, saving taxpayers $400 million compared to a version of the bill introduced in 2016 by U.S. Sen. Jon Tester, a Democrat, but still enjoys bipartisan support.
“After years of negotiations and hard work, I’m pleased to announce we have reached a new agreement that permanently settles a century old water dispute in Montana and protects the water rights of all Montanans,” Daines said in a statement.
Despite the failure of his own proposal in a Republican-controlled Senate, Tester welcomed the new deal, noting that he’s been working with the Tribes for years to avoid litigating more than 10,000 claims in state water courts, which would have untold costs on the state.
“I’m glad we’re all now on the same page about the importance of getting this done, but the clock is ticking on our ability to prevent costly litigation and protect our state’s most valuable resource,” Tester said in a statement, adding that he intends to cosponsor the bill. “It’s critical we get the CSKT Compact introduced and moving so we can provide certainty for all water users and boost economic development in Northwest Montana.”
The water rights settlement has received endorsements from Trump administration officials, including Interior Secretary David Bernhardt and Attorney General William Barr, who voiced support for the compact.
State Republican lawmakers who opposed the compact in 2015 also expressed confidence in Daines’ bill, while Montana Attorney General Tim Fox urged Congress to ratify the measure.
“President Trump’s administration is backing the CSKT water compact and there is bipartisan support from Montana’s congressional delegation, so it’s time to get this done,” according to a statement from Fox. “I am grateful to Senators Daines and Tester for their support of the compact passed by the 2015 Montana Legislature. I call upon Congress to ratify it as soon as possible.”
The proposed legislation also authorizes a process through which the Department of Interior, on behalf of CSKT, can negotiate with the Montana Land Board to arrange future land swaps, according to a Daines spokesperson. Those land swaps would include returning patchworks of state land within the Flathead Indian Reservation’s boundaries to the Tribes; in turn, the state would receive federal public lands as compensation to make its trust whole.
“The Secretary shall offer to negotiate with the State for the purpose of exchanging public land within the State for State trust land located within the Reservation with a total value substantially equal to the value of the surface estate of the approximately 36,808 acres of State trust land obtained by the State,” according to the proposed bill’s text.
John Tubbs, director of the Montana Department of Natural Resources and Conservation, said he was still reviewing the bill’s language surrounding the land-transfer provision, but noted the state has negotiated similar land exchanges with other tribes when finalizing water compact deals, including on the Crow and Fort Belknap reservations.
“It is fairly common for tribal reserves to want to transfer state land ownership out of the reservation and turn that back to the state trust, and so it’s something we’re used to,” Tubbs said.
In this case, however, much of the federal tracts are managed by the U.S. Forest Service as opposed to the Bureau of Land Management, he said. Moving forward, Tubbs said his agency would seek direction from Daines’ office in developing a relationship with Forest Service officials in an effort to consolidate sections of parcels.
Moreover, Tubbs said it’s critical that the new trust lands be primed to generate revenue, particularly from timber.
“I think there’s some opportunities here,” Tubbs said. “One message I would tell folks in the western landscape is DNRC would be looking at working landscapes, and one of the first places I am going to look is at timber near existing mills in western Montana. Because if we can acquire good timberlands in proximity to existing mill infrastructure, we could have a pretty strong market there.”
Inclusion of the Bison Range in the proposed measure also drew support from the National Wildlife Federation.
“Senator Daines deserves great credit for crafting this important legislation that rights historic wrongs. The National Wildlife Federation appreciates his collaborative approach and recognition of ancestral land and water rights of the Confederated Salish and Kootenai Tribes,” Tom France, regional executive director for the National Wildlife Federation, said in a statement. “Senator Daines’ legislation affirms the agreement that was carefully negotiated among parties, improves it in certain areas, and equitably resolves long running disputes.”