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FLATHEADBEACON.COM NEWS JANUARY 28, 2015 | 9
Bullock: County Commission ‘Significantly Misunderstands’ Water Compact
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Governor’s response to Flathead County Commis- sion’s letter of opposition to the CSKT water compact outlines legal answers to county’s concerns
By MOLLY PRIDDY of the Beacon
Montana Gov. Steve Bullock has re- sponded to a letter from the Flathead County Commission, which opposed the proposed water compact with the Con- federated Salish and Kootenai Tribes, and Bullock said the commission’s con- cerns are “rooted in significant misun- derstandings about the Compact.”
Despite the governor’s response, Commissioner Phil Mitchell, the driv- ing force behind the commission’s oppo- sition letter, said he stands by his criti- cisms.
On Jan. 8, the commission voted 2-1 to send a letter opposing the compact, listing multiple concerns about the pro- cess and the document the Montana Re- served Water Rights Compact Commis- sion negotiated with the CSKT.
Bullock’s Jan. 21 letter systematical- ly responds to each concern the commis- sion outlined in its letter. The concerns included granting the tribes off-reserva- tion water rights for the first time in the state’s history of forming such agree- ments, and the amount of acre-feet of water per tribal member the compact would allow.
The commission’s letter also opined that the compact doesn’t comply with Montana’s Constitution, in regard to Article IX, which asserts that the state’s waters are property of the state and for use by the people.
There was also concern about the proposed $55 million payment to the tribes.
The letter asked for five changes to the compact: to provide a specific amount of water quantification of the federal reserved water right for the res- ervation; to eliminate the mutual de- fense clause so Flathead County citizens “will not have to fight the state of Mon- tana when defending their water rights;” to bring the compact into compliance with Article IX; eliminate taxpayers having to pay any amount of money to the CSKT; and that all claims of off-res- ervation water rights be removed from the compact.
In his response to the commission, Bullock wrote about how the compact commission has successfully negotiat- ed 18 such compacts, and that the latest version of the document, released earli- er this month, includes “improvements,” such as water delivery entitlements for irrigators; a new technical team to en- sure irrigator needs are met while ful-
filling in-stream flow requirements for the tribes; and local government partici- pation in nominating appointees to the water administration board.
Attached to the letter is a six-page memo from Bullock’s chief legal coun- sel, Andrew Huff, responding to each of the county commission’s listed con- cerns.
“I believe – based on my engagement with this issue over the course of the last two years – that many of your con- cerns are rooted in significant misun- derstanding about the Compact,” Bull- ock wrote. “As the memorandum makes clear, the Compact protects the homes, businesses, and communities of Flat- head County.”
Bullock also wrote that state Attor- ney General Tim Fox agreed with his le- gal counsel’s findings, and that the gov- ernor hopes the commission reconsiders its opposition.
Commissioner Phil Mitchell, who was the primary architect behind the commission’s letter to the state, told the Beacon last week that though he hadn’t yet read the governor’s response letter, he was going to stand by his opinions about the compact.
“It seems like you can come up with any answer you want from legal angles,” Mitchell said.
When told the letter noted that “at the outset [CSKT] has, as part of the proposed Compact, agreed to cede the vast majority of its off-reservation water rights claims,” Mitchell said a vast ma- jority isn’t enough.
“The vast majority – it’s not all, that’s the problem,” Mitchell said. “They don’t need anything off the reservation – zero – whether, whether it’s Hungry Horse Dam or Flathead Lake.”
Huff’s response says the commission is correct that the CSKT compact would be the only one including off-reservation water rights, and the reason is “very straight forward,” because CSKT are the only tribes in Montana to have entered into a “Stevens Treaty,” referring to the group of treaties that includes the Hell- gate Treaty from the 1850s, which pre- serve off-reservation fishing rights for tribes and have been held up in the U.S. Supreme Court.
As for the concern that the CSKT quantifies more water than any previous compact, Huff writes that the county commission’s letter inflated the acre- feet-of-water-per-person ratio because it rolled in-stream flow rights and con-
“AS THE MEMORANDUM MAKES CLEAR, THE COMPACT PROTECTS THE HOMES, BUSINESSES, AND COMMUNITIES OF FLATHEAD COUNTY.” Gov. Steve Bullock
sumptive use rights together, and the two aren’t equivalent.
In response to the concern about the $55 million payment, Huff wrote that $42 million of that money will directly benefit Flathead Indian Irrigation Proj- ect irrigators, “who are primarily non- Indian,” by paying for new irrigation in- frastructure.
Huff also wrote that the commission did not provide any reasoning or facts as to why the compact may not comply with the state Constitution, and that the compact would in fact end the legal un- certainty about water use applications on the reservation.
In an interview, Mitchell said he still has issues with the tribes “never quan- tifying what they want” as far as water amounts, which the memo addresses as well.
Another of Mitchell’s concerns is the water administration board, which he believes should not include tribal mem- bers because they have no jurisdiction over Montanans.
“My frustration is the Salish Koote- nai tribe is a sovereign nation on their own,” Mitchell said. “They are not a part of the United States; they are when they feel like it, when they want federal funds, but they are not a part of us.”
He also said that while he isn’t a law- yer, he’s frustrated by the negotiations using whichever treaties they want.
“How do you pick and choose what you feel like picking out here, and that frustrates me,” he said.
Commissioner Gary Krueger, who voted against sending the Jan. 8 letter, said in an interview that he thought the governor’s letter and memo sufficiently answered the commission’s questions and concerns about the compact.
“I believe they were answered, or there was insufficient documentation on our part, on the commission’s part, to be able to answer them,” Krueger said.
He added: “I believe that in light of those answers we should reevaluate our position.”
Krueger did not specify whether that new position might include a new letter to the state.
Mitchell said that regardless of the answers in the governor’s letter and memo, he believes the compact will be detrimental.
“If this compact goes through, I be- lieve some of the other compacts that were approved are going to be renegoti- ated,” Mitchell said. “I do believe we’re setting new precedent if this passes and that scares the bejeebies out of me.”
Calls to Commissioner Pam Hol- mquist, who along with Mitchell voted to send the opposition letter, were not immediately returned.
To read a full copy of Bullock’s letter and memo, visit www.FlatheadBeacon.
com.
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