Commission member rebuts op-ed on CSKT water compact

The following opinion piece is a rebuttal to a recent column written by Sen. Verdell Jackson, R-Kalispell, about the proposed Confederated Salish and Kootenai Tribes water compact.

—————————

Sen. Verdell Jackson is mistaken in arguing that the proposed CSKT water compact violates the U.S. and Montana constitutions by taking water rights from individual irrigators served by the Flathead Indian Irrigation Project and transferring them to the Tribes.

Sen. Jackson appears to misunderstand the nature of the Project water rights. They are not a collection of state-based water rights currently held by individual irrigators. Rather, the right is generally deemed to be for the Project as a whole, and ownership of that right has been claimed by both the Flathead Joint Board of Control and the Bureau of Indian Affairs. If the compact and associated Water Use Agreement (WUA) are not approved, the Tribes have prepared and will file a claim for ownership as well. At that point, it will be up to the Water Court to sort things out.

Far from taking rights away from individual irrigators, the compact resolves the contentious issue of the project water right by granting ownership to the Tribes as held in trust by the United States. In doing so, it avoids what would otherwise be a protracted court battle between the various claimants. More importantly, the WUA works to assure that the Project irrigators will get the water they need, and at the same time the Tribes will get the in-stream flows to which they have rights which are quite senior to that of the Project itself.

These competing claims for water can all be met in part because the WUA would also bring important state funding ($42 million) for a pumping fund, infrastructure repair and efficiency improvements to bring more water to the project. It also provides for the continuing provision by the Tribes of the very important block of low cost power that has been utilized for pumping water into the irrigation system from the Flathead River for many years. It is ironic that while these financial benefits will be lost without the WUA, opponents have never allowed it to come to a ratification vote by members of the irrigation districts.

There are also about 30,000 non-Project acres on the reservation now served by individual irrigation rights. These individual rights are filed with and ultimately will be adjudicated by the water court, and the compact will have no effect on these filings.

Sen. Jackson has also incorrectly characterized the Unitary Management Ordinance (UMO) and its related board as wastefully duplicative of current state water rights management and prone to unfair treatment of water rights holders, depending on where they live and tribal membership. In reality, due to the complicated pattern of tribal and non-tribal land ownership on the reservation, unitary management is the most efficient way to deal with water rights conflicts and new permit applications. The Unitary Management Ordinance treats all reservation residents equally, is consistent with the Montana Water Use Act, and provides equal protection for all Reservation residents.

The ordinance also guarantees state input on new development of water on the reservation. All the other tribal compacts have basin closures which preclude any new non-tribal use of water. By contrast, a large supply of potential mitigation water out of Hungry Horse Reservoir that is part of the proposed compact, combined with no basin closure, allows for continued development opportunities for much of Western Montana.

Finally, Sen. Jackson is right that no other compact has off-reservation water rights. That is because no other Tribes have treaty language that supports such claims. CSKT does. Sen. Jackson’s assertions that the eight off-reservation in-stream flow rights recognized by the compact will “negatively impact growth and development” in Western Montana, however, are inaccurate and untrue.

All eight rights were carefully set at levels that account for existing state-based water rights and contain protections or limitation on call. These rights were specifically designed not to impact existing state based water rights or cause basins to be closed to new appropriations.

In negotiating the CSKT compact, the Reserved Water Rights Compact Commission has worked vigorously to protect all existing water users on and off the reservation. I believe we have succeeded in doing so, but I urge you to read the compact carefully, judge for yourself, and contact me or the Commission staff with any questions or concerns you may have.

Rep. Dan Salomon, R-Ronan, represents Montana House District 12. He is also a member of the Reserved Water Right Compact Commission and a lifelong irrigator and farmer-rancher in Lake County.