Flathead Water Compact Clears Senate Committee

If passed, Confederated Salish and Kootenai Tribes would relinquish claims to off-reservation water rights and assume trust control of National Bison Range

By Tristan Scott
Beacon file photo

In a unanimous, bipartisan vote on July 29, a congressional committee approved a $1.9 billion measure to settle water rights negotiations between the state and federal governments and the Confederated Salish and Kootenai Tribes (CSKT), marking a milestone in the long-disputed compact and clearing the way to a full U.S. Senate vote.

The legislation, which would ratify the CSKT water compact and settle a decades-long struggle to define the Tribes’ federally reserved water rights, was billed by Montana’s U.S. senators, as well as CSKT leaders and other key stakeholders, as the best course of action to avoid costly litigation, modernize outmoded irrigation systems in the Flathead Valley and mitigate historic damage to natural resources.

Introduced last December by U.S. Sen. Steve Daines, R-Montana, and co-sponsored by U.S. Sen. Jon Tester, D-Montana, the Montana Water Rights Protection Act is the result of hard-fought negotiations that have dragged on for years, requiring the CSKT to permanently relinquish 97 percent of its off-reservation water claims across Montana, including all of those in the Flathead Valley.

In exchange, the bill would restore the National Bison Range to federal trust status for the Tribes, which was the status of the land under the 1855 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.

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 Hellgate Treaty.

The costs associated with the bill would also help rehabilitate the Flathead Indian Irrigation Project (FIIP), 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 of disrepair. And the bill would give Lake and Sanders counties $10 million for road infrastructure.

To that end, both Daines and Tester characterized the legislation as an infrastructure and jobs bill, even though its primary purpose is to resolve thousands of water rights claims, removing the threat of litigation while quantifying the Tribes’ water rights and providing assurance to all water users, both tribal and non-tribal.

In exchange for the benefits, the Tribes would waive and release all claims related to water rights.

“For decades, the CSKT water dispute has gone unresolved in Montana, leading to uncertainty for thousands of Montanans across our state,” according to a statement from Daines, who introduced the legislation last December. “That’s why I introduced the bipartisan Montana Water Rights Protection Act which permanently settles the CSKT water dispute, protects the water rights of all Montanans, creates jobs, modernizes critical infrastructure needs in Northwestern Montana, protects Montana agriculture, avoids costly litigation and has the Trump administration’s support.”

Before being implemented, Tribal water rights compacts must pass the state Legislature and both chambers of Congress, and be approved by the Tribe and Montana water court. In 2015, after a decade of negotiations between CSKT, the state of Montana, and local landowners, the state Legislature passed the bipartisan CSKT Water Compact.

At a June congressional hearing before the U.S. Senate Indian Affairs Committee, which both Daines and Tester serve on as members, Department of the Interior Assistant Secretary Tim Petty commended tribal and state officials for bringing “significant leadership” to the negotiating table and said the Trump administration supports the level of funding.

Today marked another big step forward for the CSKT Water Compact, and brings us even closer to providing the surety that water users in Montana desperately need,” according to a statement from Tester. “This settlement has overwhelming support from all across the state and both sides of the aisle, and will prevent years of costly litigation while protecting our state’s most valuable resource. I urge Senator McConnell to put the Montana Water Rights Protection Act up for a vote as quickly as possible, so we can pass this historic legislation and give Montana water users certainty for generations to come.”

Still, some state Republicans remain opposed to the compact, including state senator and former gubernatorial candidate Dr. Al Olszewski, as well as Lake County Commissioner Gale Decker. Both have urged Daines to withdraw the federal legislation, saying it yields too much control of water rights to the tribes, and that the dollar figure attached to the measure — $1.9 billion — was negotiated outside the public purview.

However, Daines stated during his committee testimony that the legislation “is a product of working for years with stakeholders from all sides on a compromise that can move forward — one that can be signed into law.”

CSKT Chairwoman Shelly Fyant expressed support for the legislation and gratitude toward Tester for his steadfast work to ratify the compact, which includes introduction of his own version of a ratification bill in 2016.

“This legislation shows what can happen when we all work together. It will provide critical water infrastructure projects, create jobs, restore our fisheries and water quality, grow the economy, and enhance the Reservation’s natural landscape and ecosystem,” according to a statement from Fyant. “We are grateful to Senator Tester for his years of hard work earning support among his colleagues for the Tribe’s Water Compact, and we look forward to finally seeing this important bill signed into law.”