Legislative panel asks for changes to CSKT compact

In late October, after spending many months examining the controversial Confederated Salish and Kootenai Tribes Water Compact, the Montana Legislature’s Water Policy Interim Committee made several recommendations to the governor’s Reserved Water Rights Compact Commission in hopes of improving the proposed agreement.

We did not recommend passage or denial of the compact but did make suggestions to the commission that is charged with negotiating the settlement on behalf of Montana.

It will be very telling as to whether or not the tribes and the compact commission incorporate the following legislative recommendations:

• We asked that it be made clear that passage of the compact does not imply a consensual agreement between any individual residing on the Flathead Indian Reservation and the tribes, or result in an involuntary change of the status of their privately owned land to Indian land status.

• We requested the compact define a “court of competent jurisdiction” so that non-tribal members are not required to appear in a tribal court unless they consent to it.

• We asked that mitigation be provided to individuals whose wells will be negatively affected so they are assured continued access to groundwater.

• We expressed concern over the historic decline in the number of irrigated acres on the Flathead Indian Reservation, and requested an investigation into why this decrease has occurred, as well as provisions to serve these formerly irrigated lands if practicable.

• We asked that the proposed interim technical team, which would plan future water measurements and forecasting, include local representatives plus hydrology experts from the Montana Bureau of Mines and Geology.

• We recommended that all related processes and meetings are conducted in accordance with state open meetings and open records laws and that an appeals process to the board and to courts is provided.  

• And we asked that the compact commission publicly discuss and explain whether or not a dual management system is feasible to allow water rights on non-tribal lands to be administered under state law while water rights on tribal lands are managed by the tribe. As the compact is written now, all the lands served by the Flathead Irrigation Project (Indian and non-Indian land owners) would be controlled by a new Unitary Management Board comprised of political appointees at the sole discretion of the tribe and the governor.

• If a Unitary Management Board is to be created to administer the water rights, the committee recommended that county commissioners from the four counties located within the Flathead Indian Reservation select technically qualified candidates for the governor to choose from for appointment to board.

• The committee recommended the compact commission negotiate an increase in the amount of water available as well as adoption of a “delivery right authorization” to give irrigators a property right, recognizing their historic access to irrigation project water.

The full language of the Water Policy Interim Committee’s recommendations to the compact commission are posted at www.leg.mt.gov/water. These changes, if incorporated, would add important protections and clarifications, but even this may not be enough to make the compact palatable to the people of Northwest Montana.

Although many have requested it, the compact still does not include a summary of how much water is available, how much is required to fulfill the purpose of the reservation, how much is actually being turned over to tribal control, and how much is left for other uses. Instead it contains nearly a thousand pages of water right abstracts, which are purported to be the better way to address quantification. The proposal also includes water rights in streams and lakes off the reservation, although the legal basis and implications are uncertain.

Given the number of lawyers making legal arguments, both pro and con, and the continued uneasiness of many citizens, I expect litigation to be fierce if the compact is passed unless the primary concerns are adequately resolved.

I encourage the governor’s compact commission and the tribes to ensure the compact proposal they bring forth to Montana’s 2015 Legislature includes much better clarification, a whole lot less controversy, and much broader support from the affected public. It is worth the effort to have a compact that garners the confidence of all impacted people.

Sen. Jennifer Fielder, R-Thompson Falls, represents Montana Senate District 7.