2 years after passage, doubts remain about water compact

Over two years have passed since a slim majority of Montana lawmakers approved the Confederated Salish and Kootenai Tribes (CSKT) Water Compact, a massive agreement that quantifies the tribes’ water rights on and off the Flathead Reservation.

It’s since been upheld by the Montana Supreme Court and introduced in Congress by Sen. Jon Tester, D–Mont., for federal ratification.

But in both Montana and Washington, lingering doubts about the pact are clouding its future.

“I would like to see it resolved here at the state level first,” Sen. Keith Regier, R-Kalispell, told the Daily Inter Lake. “It would be nice if we could send a compact to Congress that wasn’t so controversial.”

The 1,400-page compact stirred no small amount of controversy as the Montana Legislature debated it in 2013 and again in 2015. That year, a single judiciary committee session received seven hours of testimony from hundreds of concerned citizens.

Compact supporters said that quantifying the tribes’ water rights could save years of resolving them in court, and note that the agreement includes state and federal funds to repair the reservation’s century-old irrigation infrastructure.

That stance prevailed in 2015. But two years later, the bill’s opponents remain worried. In May, Regier sent a letter, co-signed by 13 state senators and representatives, to U.S. Sen. Steve Daines, R-Mont., arguing that “The CSKT compact should remain in Montana until the Legislature is able to correct the Compact’s deficiencies.”

They argued that the compact: Transferred water rights away from irrigators to the tribe, and water away from historically irrigated lands, with “no economic, legal, or environmental reviews;” failed to quantify the volume of water needed on the reservation, and instead claimed all the water on the reservation, a much larger volume than those in other compacts; turned an “access right” to take fish into a “water right” that secured the “instream flow” from off-reservation sources needed to support fish; and transferred water management from the state to the tribes.

For these and other reasons, they wrote, the compact would deprive many Montana citizens of their property and due process rights, and that Tester’s ratification bill was “unacceptable to 28,000 citizens on the reservation and the 350,000 citizens in 11 counties in western Montana affected by the off-reservation Tribal water rights claims.”

These issues were hotly debated — and many received point-by-point responses from the compact’s supporters — in the 2013 and 2015 legislative sessions. Water rights attorney Colleen Coyle thinks that “this has received more scrutiny than almost any water issue we’ve faced in Montana.”

The CSKT, she explained, are the only group in Montana to have their water rights codified by a “Stevens treaty.” These agreements, which include the 1855 Hellgate Treaty between the CSKT and the United States, grant reservation residents the exclusive right to collect fish on their lands.

Subsequent court decisions have expanded that right to include instream flows from off the reservation needed to sustain the fish.

This remains a major concern among the letter’s writers, who argued that these rights “depreciate the property values of 350,000 citizens across 11 counties in western Montana because of uncertainty in water supply.”

Coyle said that the effects of these rights on property values would have been difficult to determine. But Regier argued that “there shouldn’t be the off-reservation water rights.”

He said that he would like to see those rights removed, along with certain immunities granted to state employees and the unitary management and administration ordinance governing water access on the reservation.

Montana’s Republican senator shares his qualms. Daines said in an email that he had been in touch with the letter’s signatories about their concerns, and that the compact’s impacts on off-reservation water claims “need to be better understood before the compact moves forward.”

Meanwhile, Montana Congressman Greg Gianforte’s press secretary said that “Greg will continue evaluating the CSKT water compact and seeking input from the tribes and surrounding communities.”

Only Tester supports the bill so far; his press secretary said that “first, the whole delegation needs to back the land owners and tribe who negotiated this deal.”

These officials could have a deadline. A clause in the bill gives Montana the right to unilaterally withdraw if Congress hasn’t ratified it within four years of its state passage.

Regier said he thought this clause would factor into the opposition’s strategy, but added that “there’s still a lot of questions about what is going to be introduced in Congress.”

The agreement states that “the terms of the Compact may not be amended without the consent of all the Parties following the first ratification by any Party.” Last year, Tester said that any changes would have to be “very, very minor,” to avoid re-starting the process.

With ratification uncertain, Regier acknowledged that it was doubtful whether the state Legislature could craft a better agreement. But he also pointed out that the tribes aren’t without recourse.

“The water court has done a great job through the years, and if the tribe feels they have claims, they can bring it to court just like any other Montana citizen,” he said.

But Coyle, a partner at Bozeman-based Coyle & Fanning, PLLC, warned that settling the compact’s water rights in court could cost Montanans dearly.

“If these Indian reserve rights are litigated, prima facie [“first sight”] standard applies, which means that the objectors have the burden to overcome the claim” – claims that, in the case of instream flow rights, are senior to all others.

“That creates more of an evidentiary burden for these other water users who would potentially find that a very senior right for instream flow has been claimed and would come to exist on their sources of water.”

Adjudicating those rights, Coyle said, could add decades’ worth of work to a water court whose current backlog of claims is estimated to last until 2028, and bring uncertainty and legal costs to landowners around the state.

Around Montana, she’s seen her clients split into opposing camps on the issue. As state and federal lawmakers continue debating its merits, the group at the center of this controversy is staying taciturn.

In an email, tribal attorney John Carter said that “the authors of that letter have the right to voice their concerns to their elected federal officials. The CSKT will respond to those concerns in the same manner.”

Patrick Reilly can be reached at preilly@dailyinterlake.com, or at 758-4407.