Secrecy Surrounding the Montana Water Rights Protection Act

The act is an example of why 75% of Americans have little or no trust in the federal government

By Gale Decker

Amid all the controversy surrounding Sen. Steve Daines’ Montana Water Right Protection Act, two facts have become abundantly clear: There will be no disclosure to taxpayers and the public as to the how the $1.9 billion dollar figure attached to the act was arrived at, nor once the money is spent, will the public see the expenditures report prepared by the Confederated Salish and Kootenai Tribes detailing how the money was spent. 

The MWRPA was introduced by Daines and Sen. Jon Tester into the U.S. Senate Indian Affairs Committee in December of 2019 and, if passed by Congress, will provide funding for the CSKT Water Compact passed by the Montana Legislature in 2015. A hearing was conducted in the Indian Affairs Committee on June 24, and the bill is now being amended for anticipated passage later this summer or early fall.

This spring when the senator was questioned by Lake County as to how the $1.9 billion price tag that accompanied the settlement act was arrived at, the senator maintained that the total was determined by information provided by CSKT in what was referred to in the act as a “Comprehensive Damages Report.” The three-volume report was begun in 2011 and completed in 2016 and supposedly itemized claims of damages to the Flathead Indian Reservation by the Flathead Indian Irrigation Project. When the county commissioners made their first request to view the report we were told that the report was privileged information due to ongoing litigation and therefore could not be released. Following an investigation by the county into the referenced ongoing litigation, it was determined by the county that there was no active litigation between the federal government and CSKT or the State of Montana. The county then filed several “Freedom of Information Act” requests with several federal and state officials with no results. From the onset of the debate over the merits of the act, state and federal government officials have been determined that the damages report will never be made available to the public for review.

Following the June hearing on the act before the Indian Affairs Committee, an amended version of the MWRPA was produced and emailed to the commissioners. Interestingly, any reference to a Comprehensive Damages Report was stricken from the amended act. Now, damage awards will be guided “by existing studies commissioned by the Secretary (of the Interior) and the Tribes that identify current facility conditions and describe future modernization recommendations.” Additionally, under the “Reservation of Rights and Retention of Claims” portion of the act, CSKT retains all claims not due to loss of water rights, (including hunting, fishing, gathering, or cultural rights). This language foreshadows significant claims that will be brought forward in the future by CSKT. Clearly, the MWRPA will not realize its purpose “to achieve a fair, equitable, and final settlement of claims to water rights in the State of Montana.”

The Montana Water Rights Protection Act and the secrecy surrounding the expenditure of $1.9 billion is an example of why 75% of Americans have little or no trust in the federal government.

Gale Decker is a Lake County commissioner.

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