Bipartisan Water Compact Gets Political Pushback

Introduced by Sens. Daines and Tester, bill to resolve tribal water rights dispute rankles some Republicans in Northwest Montana

By Tristan Scott
Irrigation systems near Charlo on Jan. 29, 2015. Greg Lindstrom | Flathead Beacon

Despite gaining broad bipartisan support, a proposed legislative agreement between the Confederated Salish and Kootenai Tribes and state and federal governments to resolve an age-old conflict over water rights on the Flathead Indian Reservation is generating pushback from a Republican gubernatorial candidate and some state and county officials.

  The Water Rights Protect Act, which also restores management of the National Bison Range to the Confederated Salish and Kootenai Tribes — whose leaders hailed the measure as an “elegant solution” — was introduced by U.S. Sen. Steve Daines, R-Montana, and co-sponsored by U.S. Sen. Jon Tester, D-Montana, in an effort to settle and avoid thousands of water-rights disputes between tribal and non-tribal water users.

“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,” Daines said. “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.”

But Montana Sen. Al Olszewski, R-Kalispell, a candidate in the GOP’s gubernatorial primary, recently described the proposal as “the most divisive legislation in Montana history,” telling reporters at a press event at the Montana Capitol that western Montana counties and districts were not present at the negotiation table.

Meanwhile, Daines’ office says the measure was drafted with the input from a range of stakeholders, including Olszewski, and the bill has garnered support from top members of the Trump administration, including Interior Secretary David Bernhardt and Attorney General William Barr, who agree the benefits of the settlement outweigh the pitfalls of litigation.

During the 2015 Montana Legislature, state lawmakers on both sides of the aisle endured a firestorm of criticism before ratifying the CSKT water compact, which was designed to resolve disputes 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.

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. The bill 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.

But in a letter to Daines by Lake County Commissioners Gale Decker, Dave Stipe and Bill Barron, the officials wrote that the bill “has serious and permanent negative consequences for our County and citizens.”

The commissioners expressed concern about the potential for public land to be transferred to the tribes’ authority, writing that the act’s expansion of the definition of the word “reservation” would include county right-of-ways and even Big Arm State Park.

But Daines’ staff said the bill does not include language that would impact state parks, but rather takes steps that preserve public access.

Sen. Dee Brown, R-Hungry Horse, as well as District 1 Public Service Commissioner Randy Pinocci have joined the chorus of opposition.

Meanwhile, other state Republican lawmakers who opposed the compact in 2015 have expressed confidence in Daines’ bill, while Montana Attorney General Tim Fox, also a Republican candidate for governor, urged Congress to ratify the measure.

In addition to ratifying the compact, the federal legislation also settles damages brought by the federal government for mismanaging the Tribes’ water and water rights guaranteed under the 1855 Hellgate Treaty.

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 and remain a point of controversy in some political orbits.

“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.”

Stay Connected with the Daily Roundup.

Sign up for our newsletter and get the best of the Beacon delivered every day to your inbox.