HELENA – One of the biggest issues facing the 2015 Legislature is a mystery to most Montanans, cloaked in the complexities of water law and charged with racial politics: The tribal water-rights compact on the Flathead Indian Reservation.
Yet supporters of the compact say Montanans should be paying close attention, for if the Legislature doesn’t ratify it, water-users across the state will feel the effects – and it won’t be pretty.
“If we don’t have a compact, the tribes will put in for all these (water) claims, and the domino effect will cascade down and go all over the state,” says Rep. Dan Salomon, R-Ronan, who farms on the reservation. “That’s going to affect every other river basin that’s been adjudicated, and they’ll have to redo all of those.”
Opponents, however – led by some irrigators on the reservation – are just as determined to block the proposed compact, saying it gives too much power to the Confederated Salish and Kootenai Tribes.
“We’re just at a loss at why the state believes they have to give away all this water, including water that we feel we have a legal claim to,” says Jerry Laskody, who runs a small cow-calf operation near St. Ignatius and gets water from the Flathead Indian Irrigation Project. “We’re not going to allow anyone to give our rights away without a fight.”
The water compact, negotiated by the state Reserved Water Rights Compact Commission and the tribes over a dozen years, defines and quantifies the tribes’ rights to waters in multiple rivers, lakes and streams in western Montana. To take effect, the agreement must be ratified by the Legislature, the tribes and Congress.
Majority Republicans at the 2013 Legislature refused to approve the compact, which faced vocal opposition from local irrigators and others who said it could harm non-tribal water-users throughout western Montana.
Now, two years later, the tribes and the state have amended the proposed compact, attempting to address irrigators’ concerns, and are bringing it back to the 2015 Legislature for consideration.
And this time around, a deadline is looming: By June 30, the tribes must file their water-rights claims with the state Water Court. Without a compact settling the complex rights, they’ll aggressively pursue those rights, which could extend to river basins in eastern Montana, including the Milk, Yellowstone, Missouri, Shields and Musselshell rivers.
“I’m hoping the Legislature sees the value to Montana for this (compact),” says John Carter, an attorney for the tribes. “If it doesn’t go through, it will embroil the state in years of confusion and uncertainty.”
Gov. Steve Bullock, a Democrat, strongly supports the compact, and his administration says it not only will avoid years of water-rights litigation, but also help the economy.
“There’s been a lot of economic and legal uncertainty, which has impeded development in many ways,” says Andy Huff, the governor’s chief legal counsel. “With this compact, there’s going to be a system of (water) administration, and that’s going to promote economic development in western Montana.”
Farmers and Ranchers of Montana, a new group representing agricultural interests and businesses across the state, has formed to support the compact. Lawmakers supporting it also say they’re relatively optimistic about its passage.
Still, it faces significant political hurdles.
House Majority Leader Keith Regier, R-Kalispell, voted against it in 2013 and said last week he hasn’t seen any reason to change his mind. He said the state Water Court can sort out the water rights of the tribes and local irrigators, without a compact.
Regier said once a compact bill gets to the House, it probably should go to the House Judiciary Committee – the same panel that killed it in 2013 and that again is dominated by strong conservatives.
Passage of the compact also requires approval of $8 million to start paying for Flathead irrigation-project improvements – money that must be approved by the House Appropriations Committee. That panel is chaired by Rep. Nancy Ballance, R-Hamilton, an outspoken opponent of the compact.
Republican Attorney General Tim Fox, however, is supporting the compact, and his office helped negotiate the changes meant to assuage irrigators’ concerns about the compact’s effect on the amount of water they need for cattle, hay, grain and other crops.
Those changes include an assurance that irrigators on the reservation can still file for their own water right (although the tribes would have rights to water flowing into the Irrigation Project), a local board that would oversee water rights and use on the reservation, and a new “technical team” that will attempt to ensure the tribes and the irrigation project get their share of water.
Huff hopes the changes and new information about the compact will pave an easier political path through the Legislature this time.
“I think we’re in a different position (than 2013),” he says. “A lot of the opposition will have more to think about this time around, and hopefully they’ll be thinking about it with accurate information.”
Laskody, however, says the changes don’t address the concerns of many irrigators. He notes that the compact still gives the tribes’ right to the Irrigation Project water.
Laskody says he and others think the tribes will use their water right to deny water to non-Indian irrigators, driving them out of business.
“What the tribes would like is to get us all out of here, and get the reservation back (to themselves),” he says. “And this is their way of doing that.”
Carter, the tribes’ attorney, says such claims are simply false, and that the compact explicitly recognizes that the tribes will protect existing water uses on the reservation.
“If people choose to read (the compact) and digest it and consider it, I don’t see how they can reach (Laskody’s) conclusion,” he says. “(The compact) will end years of acrimony, disputes and social and political unrest. And it will save everyone in the state significant expense.”