Lake County objects to water compact

Lake County commissioners unanimously voted Feb. 8 to object to the Confederated Salish and Kootenai’s water compact with the federal government and the state of Montana.

The commissioners originally placed their objection on a December agenda, but postponed action after the filing date for objections was extended to Feb. 9 by the Montana Water Court.

The water compact was ratified by the tribes, the state and the federal government, but long-standing local opposition remains. Officials in Mineral and Lake counties recently took stances against the compact and there have been other forms of organized opposition, including an out-of-state ad campaign launched in 2022.

The Montana Water Court is expected to begin settling reasonable objections to the compact on a basin-by-basin basis.

Wally Congdon, deputy attorney for Mineral County, has been an outspoken critic for several years. Recently, he organized public meetings in Sanders and Mineral counties and urged the public and local officials to object to the document.

At their Feb. 8 meeting, Lake County commissioners presented the public with a draft of their objection, which insinuated fraud between the negotiating parties of the compact as well as governmental overreach.

“As a non-participant in the negotiations, we have no proof or knowledge of fraud or collusion between the parties negotiating, but suspect that this may have taken place due to the federal government’s refusal to provide Lake County with documents pivotal to the negotiations between the parties, namely the ‘Comprehensive Damages Report,’” the objection states.

The Comprehensive Damages Report is a document that the tribes compiled outlining damages to their native homeland after colonization. Lake County commissioners unsuccessfully sought to obtain the report from U.S. Sen. Steve Daines, but said they were told that it was privileged information.

"We tried to stay within the parameters that we were asked to stay within, as far as our objections,” said County Commissioner Gale Decker. “Whether or not the compact was an overreach, whether there were situations of fraud or collusion among the parties that were negotiating the water compact. So that’s where we kind of stayed, again, between those sideboards.”

In order to draft the objection, the county pulled on documents provided by Congdon as well as a draft objection that the deputy county attorney sent.

“We got multiple documents from Wally Congdon and also [an] attorney in Kalispell,” that helped the commissioners formulate the draft, Decker said.

He gave a brief history, saying that Lake County commissioners initially supported the compact. He said the county is alleging the document is an overreach of constitutional authority, primarily based on some language in the compact.

“Part of the argument also is based on the reservation water management board and the composition of that board,” Decker said of the county’s objection.

He also cited a lack of an administrative process, saying there doesn’t seem to be a clear procedure. Decker then told the public he heard “this is only one-seventh of the total damages report.”

The objection also outlines the commissioners’ displeasure with the Compact Implementation Technical Team and the Flathead Reservation Water Management Board established by the compact.

The objection argues that these organizations have been given authority beyond the rehabilitation of canals – over which they were given authority by the compact – and commissioners see this as a “taking” that doesn’t require action from the Secretary of Interior.

During the public comment period several residents expressed their concern with the land exchanges included in the compact. These land exchanges will be decided by the Montana Land Board, and are part of a separate decision, Decker said.

“Don’t you think it’s important in this land swap that you take a position, not only in [this current objection] but I would encourage you to go directly to the governor in writing,” said resident Steve Dennison.

Decker said the commissioners received a response in March 2022, and the governor's office had simply sent a document with answers to frequently asked questions.

Another member of the public, Frank Mutch, criticized the proposed improvements to the irrigation system that the compact laid out for allegedly not taking into account federal environmental protections.

The tribes were not immediately available to comment on the environmental review process for the irrigation project, but they have a history of taking progressive environmental protection actions – such as designating the first Tribal Wilderness and enacting unique protections for grizzly bears in the wilderness.

“I’m really honestly torn on this, I think we need to file an objection,” Commissioner Bill Barron said. “I mean we talked about it a lot, making some changes to it and stuff, but like it’s been stated we have no proof of fraud."

The commissioners then voted unanimously to submit to the water court their objection to the tribes' compact with the federal government and the state of Montana as drafted, with potential minor changes.