Fair and Equitable

It’s pretty clear the Montana Water Rights Protection Act isn’t about fairness and equity

By Dave Skinner

A few weeks ago, Montana senators Steve Daines (R) and Jon Tester (D) introduced a bill in the U.S. Senate: S-3019, the Montana Water Rights Protection Act. The bill is 65 pages, supposedly to enable a “fair and equitable settlement of claims to water rights” and to “protect access to water for all Montanans, and for other purposes.”

With clarifying help from MCA 85-20-1901, which our Legislature passed in spring 2015, some highlights:

All of the Flathead Indian Irrigation Project, “regardless of location on or off the Reservation,” will be “held in trust by the United States for the benefit of the Tribes.” There’s no mention of non-tribal holders of “Water Rights Arising Under State Law” in the Senate bill, although the state compact describes “consensual agreements” that nonetheless don’t imply “any entitlement to any delivery or diversion” of FIIP water.

As for water, the compact establishes “time immemorial” water rights establishing minimum flows of the Kootenai, Flathead, Swan and Clark Fork rivers (plus others). Further, there’s a Tribal Water Right of “90,000 acre-feet per year” from Hungry Horse, with a backdated priority of July 16, 1855, when the original Stevens (Hellgate) Treaty was signed. That combination effectively closes Western Montana to any new water rights.

Instead, the Confederated Salish and Kootenai Tribes (CSKT) will rent water, if they choose, with the only exception being CSKT “shall make available not more than 11,000 acre-feet per year […] to the State [of Montana]” for 99-year leases, for “off-reservation mitigation” at a baseline rental price of $40/af/year, indexed to the Consumer Price Index, mitigating “new or existing” uses “at any point” in the Flathead or Clark basins.

Any more, at any price, for any length of time, will be totally CSKT’s call. Period. Sure, there’s optional yearly leasing of water at no less than $8 per acre foot, indexed to the Consumer Price index, but in general CSKT “may [not shall] allocate, distribute, and lease the Tribal Water Right for off-Reservation use in the State […]”

Furthermore, 36,080 acres of state trust lands on the reservation will be made tribal land held in trust, with the state getting federal public lands of equal value within Montana. But that’s not all — Section 13 goes beyond the Compact and returns the National Bison Range to CSKT. The land “shall be held in trust by the United States for the benefit of the Tribes,” with all infrastructure “in fee, all ownership interests” going to CSKT, which in turn will grant unspecified “public access and educational opportunities” under a “publicly available management plan” — but there’s no language on who writes the plan.

But the rentals and asset transfers aren’t all: Section 8 covers the “SE’ LISˇ-QLISPE’ KSANKA SETTLEMENT TRUST FUND,” $1.9 billion to be used not just for the Flathead Indian Irrigation Project, but also livestock fencing, community water, and new irrigation on tribal lands, plus geothermal development. Funds can also go for “acquisition of interests in real property” for “rehabilitation, modernization and restoration of damages to natural resources.”

Critically, Section 10 specifies the funds will be paid out by 2031, and if not, this “Act shall expire” and all the waivers of the various rights claims made by the tribes “shall — (i) expire; and (ii) have no further force or effect;” and the water-rights war will begin anew. Even more critically, if Congress does not vote to begin funding by four years after state passage of the Compact, (that was in April 2015, kids, and we’re past that) then the tribes have the right to withdraw from the compact and file on all their claims.

Wow. There’s more, but it’s pretty clear the Compact isn’t about fairness and equity. It’s not even about cash, infrastructure, or water-rents income, not even the sheer power over the economy of Western Montana implicit in the water rights, although all those will benefit the CSKT.

To be perfectly honest, over time the main effect of the Compact will be the reduction, even elimination, of non-tribal presence on the Flathead Indian Reservation however possible. In fact, I think that was always the intent.

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