Legislators provided CSKT compact education session

Senate Bill 262, a bill to ratify the controversial agreement between the state and federal governments and CSKT was introduced last week. It will receive its first hearing in the Senate Judiciary Committee on Feb. 16.

Sen. Chas Vincent, R-Libby, said he initially opposed the compact and now wanted to answer legislators’ concerns with Saturday’s session.

“It’s a steep learning curve, and I know what it’s like to be on that curve,” he said. “I wasn’t asking for their votes, I was just asking for their time.”

The compact aims to quantify the water rights held by CSKT and avoid lengthy water rights adjudication litigation. It is the last tribal water compact still awaiting approval in Montana since the state’s reserved water rights compact commission was established 36 years ago.

After a presentation outlining the compact and the legal reasoning behind it, the floor was opened up to questions from the 30 to 40 legislators in the hearing room.

Sen. Bob Keenan, R-Bigfork, asked whether SB 262 would be open to amendments as it moves through the legislature.

Deputy Attorney General Cory Swanson answered that any amendments would effectively kill the bill because the compact is a negotiated settlement between three parties and they all would have to ratify the same compact for it to take effect.

Keenan said afterward he felt his questions were answered, but he remained deeply skeptical about the legal implications of the bill.

“The law is very clear in Montana statute regarding changes in appropriation rights for water law: It has to be evaluated,” he said. “I did not get an adequate answer on that issue and still have concerns where there are exemptions in the compact.”

Keenan also said the compact leaves open the possibility of the tribes developing major projects without impact analyses such as environmental reviews.

State attorney Melissa Hornbein disagreed with that notion, saying CSKT would “certainly” be subject for a federal environmental review and likely a state review as well. As to whether the compact would circumvent state law regarding changes in water use, she said the compact would generally only establish water rights, not change them.

Swanson and Hornbein corrected a couple of legislators on minor errors, such as prior appropriation, which establishes seniority for water users for beneficial use as opposed to consumptive use. Beneficial uses include hydroelectric dams and in-stream fishing rights, which don’t remove water from its source.

CSKT would receive instream fishing rights both on and off the reservation to protect habitat for bull trout, a traditional source of fish for the tribes. The 1855 Hellgate Treaty guaranteed them exclusive rights to fishing on the reservation, as well as shared fishing rights off the reservation. Hornbein said this was clear from several rulings by the U.S. Supreme Court, although the court had yet to rule on an off-reservation in-stream flow right, she noted.

Hornbein pointed out that CSKT alone has off-reservation water rights because no other tribe in Montana had signed a Stevens Treaty that contains the language opening the door to statewide water claims.

Swanson said he had adamantly opposed the compact at first and admitted being glad the original compact failed. But he said he felt the current version contained protections for irrigators they would not otherwise get. For one, CSKT offered to waive all of their filed and future claims under the compact.

Responding to a claim that the unitary management board would be a vehicle for CSKT’s agenda, Swanson noted the board would be composed of two tribal appointees, two members appointed by the state and a fifth agreed upon by the other four members. The board would be responsible for administering and making any needed changes to the allocation of water rights inside the reservation.

Swanson also noted that the compact would not open the door to further litigation by any other tribes in Montana. Each of the other tribal compacts bound them to relinquishing all rights to other claims. Existing adjudication claims by nontribal residents on the reservation could still be pursued.

Rep. Mike Cuffe, R-Eureka, said he remained undecided about the compact but complimented Vincent on the effort he had put into the agreement. Cuffe, however, questioned the bill’s unusual start in the Senate, noting that bills requiring an appropriation of state money usually begin in the House. The compact calls for the state paying CSKT $55 million for irrigation infrastructure improvements.

Swanson responded that the bill was introduced in the Senate because of Vincent’s passion and knowledge on the issue.

The controversial water agreement is likely to remain an intensely debated issue as the 90-day legislative session progresses — at least a half dozen other compact-related bills have been either introduced or are in the drafting process. One draft bill would require a two-thirds vote in both legislative chambers to pass the compact.

CSKT is required to file its claims in a water adjudication court by June 30, meaning that failure of the compact to pass for a second time in the legislature will result in the tribes seeking far-ranging water rights based on their historic fishing halfway across the state.

Whether those claims would hold up in a water adjudication court is unknown, but CSKT attorney Rhonda Swaney said CSKT would aggressively pursue those rights. She said she has received considerable push-back from CSKT members who feel they would fare much better without the compact. Failing the compact, she said, the gloves will come off.

“We’ve been compromising, but there isn’t a compromise in water court,” she said. “It’s a different field of play.”

Hornbein explained that the water court will treat CSKT’s far-ranging water rights claims as “prima facie” evidence, meaning they are assumed to be true unless an objector, such as a nontribal irrigator who uses the same water, can prove otherwise.

Swanson said the courts have traditionally sided with tribes when dealing with treaties into which they were essentially forced by the federal government.

Swanson also advised the audience to consider that the state would only go to court on behalf of its interests, which are not necessarily the same as the interests of irrigators or anyone else disputing CSKT’s water rights. For the most part, he said, those objections and the cost of proving them in court would fall on individuals.

Montana legislators were provided a special three-hour long educational session to explain the Confederated Salish and Kootenai Tribes water rights compact on Saturday, Feb. 7.

Senate Bill 262, a bill to ratify the controversial agreement between the state and federal governments and CSKT was introduced last week. It will receive its first hearing in the Senate Judiciary Committee on Feb. 16.

Sen. Chas Vincent, R-Libby, said he initially opposed the compact and now wanted to answer legislators’ concerns with Saturday’s session.

“It’s a steep learning curve, and I know what it’s like to be on that curve,” he said. “I wasn’t asking for their votes, I was just asking for their time.”

The compact aims to quantify the water rights held by CSKT and avoid lengthy water rights adjudication litigation. It is the last tribal water compact still awaiting approval in Montana since the state’s reserved water rights compact commission was established 36 years ago.

After a presentation outlining the compact and the legal reasoning behind it, the floor was opened up to questions from the 30 to 40 legislators in the hearing room.

Sen. Bob Keenan, R-Bigfork, asked whether SB 262 would be open to amendments as it moves through the legislature.

Deputy Attorney General Cory Swanson answered that any amendments would effectively kill the bill because the compact is a negotiated settlement between three parties and they all would have to ratify the same compact for it to take effect.

Keenan said afterward he felt his questions were answered, but he remained deeply skeptical about the legal implications of the bill.

“The law is very clear in Montana statute regarding changes in appropriation rights for water law: It has to be evaluated,” he said. “I did not get an adequate answer on that issue and still have concerns where there are exemptions in the compact.”

Keenan also said the compact leaves open the possibility of the tribes developing major projects without impact analyses such as environmental reviews.

State attorney Melissa Hornbein disagreed with that notion, saying CSKT would “certainly” be subject for a federal environmental review and likely a state review as well. As to whether the compact would circumvent state law regarding changes in water use, she said the compact would generally only establish water rights, not change them.

Swanson and Hornbein corrected a couple of legislators on minor errors, such as prior appropriation, which establishes seniority for water users for beneficial use as opposed to consumptive use. Beneficial uses include hydroelectric dams and in-stream fishing rights, which don’t remove water from its source.

CSKT would receive instream fishing rights both on and off the reservation to protect habitat for bull trout, a traditional source of fish for the tribes. The 1855 Hellgate Treaty guaranteed them exclusive rights to fishing on the reservation, as well as shared fishing rights off the reservation. Hornbein said this was clear from several rulings by the U.S. Supreme Court, although the court had yet to rule on an off-reservation in-stream flow right, she noted.

Hornbein pointed out that CSKT alone has off-reservation water rights because no other tribe in Montana had signed a Stevens Treaty that contains the language opening the door to statewide water claims.

Swanson said he had adamantly opposed the compact at first and admitted being glad the original compact failed. But he said he felt the current version contained protections for irrigators they would not otherwise get. For one, CSKT offered to waive all of their filed and future claims under the compact.

Responding to a claim that the unitary management board would be a vehicle for CSKT’s agenda, Swanson noted the board would be composed of two tribal appointees, two members appointed by the state and a fifth agreed upon by the other four members. The board would be responsible for administering and making any needed changes to the allocation of water rights inside the reservation.

Swanson also noted that the compact would not open the door to further litigation by any other tribes in Montana. Each of the other tribal compacts bound them to relinquishing all rights to other claims. Existing adjudication claims by nontribal residents on the reservation could still be pursued.

Rep. Mike Cuffe, R-Eureka, said he remained undecided about the compact but complimented Vincent on the effort he had put into the agreement. Cuffe, however, questioned the bill’s unusual start in the Senate, noting that bills requiring an appropriation of state money usually begin in the House. The compact calls for the state paying CSKT $55 million for irrigation infrastructure improvements.

Swanson responded that the bill was introduced in the Senate because of Vincent’s passion and knowledge on the issue.

The controversial water agreement is likely to remain an intensely debated issue as the 90-day legislative session progresses — at least a half dozen other compact-related bills have been either introduced or are in the drafting process. One draft bill would require a two-thirds vote in both legislative chambers to pass the compact.

CSKT is required to file its claims in a water adjudication court by June 30, meaning that failure of the compact to pass for a second time in the legislature will result in the tribes seeking far-ranging water rights based on their historic fishing halfway across the state.

Whether those claims would hold up in a water adjudication court is unknown, but CSKT attorney Rhonda Swaney said CSKT would aggressively pursue those rights. She said she has received considerable push-back from CSKT members who feel they would fare much better without the compact. Failing the compact, she said, the gloves will come off.

“We’ve been compromising, but there isn’t a compromise in water court,” she said. “It’s a different field of play.”

Hornbein explained that the water court will treat CSKT’s far-ranging water rights claims as “prima facie” evidence, meaning they are assumed to be true unless an objector, such as a nontribal irrigator who uses the same water, can prove otherwise.

Swanson said the courts have traditionally sided with tribes when dealing with treaties into which they were essentially forced by the federal government.

Swanson also advised the audience to consider that the state would only go to court on behalf of its interests, which are not necessarily the same as the interests of irrigators or anyone else disputing CSKT’s water rights. For the most part, he said, those objections and the cost of proving them in court would fall on individuals.