The pending Water Compact between the Confederated Salish and Kootenai Tribes (CSKT), the state of Montana and the federal government is the result of more than a decade of negotiations to resolve the Tribes’ claims to reserved rights within the state. The compact includes a settlement of tribal water right claims both on and off the reservation. The water rights on the reservation include the right to the water for irrigation through the Flathead Indian Irrigation Project and rights associated with hydro-electric generation with a priority date of July 16, 1855. The Tribes have also claimed treaty rights to instream flows in fisheries off the reservation, including the Bitterroot with a priority date of “time immemorial.”
A previous version of the compact failed in the 2013 Montana Legislature. Following a request for a limited reopening of negotiations by Governor Steve Bullock in early 2014, the State and Tribes negotiated key provisions relating to irrigation use and instream flows on the Reservation and incorporated recommendations from the Montana Water Policy Interim Committee following two years of review. The 2015 Legislature ratified the Compact, and the parties are working on compact implementation.
In the agreed upon compact, the Tribes give up their Hellgate Treaty claims in the Bitterroot Basin, and instead would receive co-ownership in contract rights for water out of Painted Rocks Reservoir and Como Lake owned by the Montana Department of Fish, Wildlife and Parks. That water is released annually by FWP to enhance late season instream flows in the mainstem of the Bitterroot River.
The provisional Compact Agreement between the state and the tribes also includes a $55 million contribution from the state. The funding is broken into separate allocations with $4 million for water measurement activities; $4 million for improving on-farm efficiency; $4 million for mitigating the loss of stock water deliveries from the Flathead Indian Irrigation Project; $30 million to offset pumping costs associated with Compact implementation and related projects; and $13 million to provide for aquatic and terrestrial habitat enhancement. The parties agree that the federal contribution to settlement shall be negotiated by the Tribes, the State, and the United States as part of the negotiations on the federal legislation to ratify and effectuate the Compact. That process is ongoing. The Compact still awaits approval by the United States Congress, the Tribes, and the Montana Water Court.
In an “overview” provided by the Department of Natural Resources and Conservation, it states that, as of July 2018, the Confederated Salish and Kootenai Tribes (CSKT or Tribes) and United States Department of Justice (USDOJ) have filed 10,109 claims in place of the Compact. These claims, filed as placeholders to the Compact, are currently stayed before the Montana Water Court. If the Compact is approved by the U.S. Congress, the Tribes, and the Water Court, both sets of claims will be dismissed. If the Compact is not approved, both sets of claims will be adjudicated through the Montana Water Court.
DNRC offers the following comparison:
The claims that would be left to be adjudicated by the Water Court would total 10,109. The CSKT filed 1,720 on-Reservation water claims. They also filed 1,094 off-Reservation instream water claims, all with time immemorial priority dates. The off-Reservation claims are located in 51 of Montana’s 85 adjudication basins. The Bitterroot Basin is one of them. The U.S. Department of Justice also filed 7,295 total claims in trust for the CSKT including 1,094 off-Reservation instream claims that are identical to those filed by CSKT. All 10,109 claims would need to be adjudicated in the absence of the Compact.
The CSKT-MT Compact would create 308 water rights. The Compact grants the Tribes’ 211 on-reservation water rights, 10 off-reservation rights, and co-ownership in 87 existing instream flow, in-lake, and storage rights held by the Montana Dept. of Fish, Wildlife & Parks (DFWP) which comes to 308 total rights. The 211 on-reservation water rights quantify the Tribes’ rights including: instream flows, Hungry Horse Reservoir Water, high mountain lakes, wetlands, and Flathead Indian Irrigation Project (FIIP) water. The Compact also includes an administrative process to grant over 1,000 non-tribal on-Reservation groundwater certificates left in limbo by the absence of a regulatory framework on the Reservation.
Off-Reservation water rights granted to the Tribes include:
• Eight time immemorial instream rights on the Swan River, Kootenai River, Lower Clark Fork River, and five headwater streams, all with protections for existing water users;
• One time immemorial Flathead Lake water right that protects the natural lake level; and
• One 1855, any purpose, on- and off-reservation right that includes 11,000 acre-feet (AF) of Hungry Horse Reserves.
Any agreement by all three parties, however, will have to come soon, since the Compact ratified by the state legislature with a preliminary agreement from the Tribes had a five-year limit for gaining federal approval.
Senator Jon Tester is currently trying to push the latest version of the compact, which underwent some modification, through the Senate.
Although most of the issues dealt with in the compact are primarily on-Reservation issues having to do with a large and complex irrigation system, nonetheless, the conversation and controversy has spilled over into the Bitterroot, the ancestral homeland of the Salish, primarily over the issue of instream flow rights for maintaining and perpetuating fisheries with a “time immemorial” priority date.
Dealing with low water flows and balancing that with the needs of irrigators has been a serious issue in the Bitterroot for a long time. Since the mainstem of the river ran dry at Bell Crossing in the 1980’s, irrigators using water out of Painted Rocks Reservoir joined with FWP in leasing a total of 25,000 acre feet of water out of an improved dam system. Painted Rocks Water Users Association obtained 10,000 acre feet for irrigation and FWP obtained 15,000 acre feet for maintaining instream flows. In a coordinated effort, facilitated by DNRC and the Bitterroot River Water Commissioner, the irrigators and the agency have managed, with a lot of give and take at times from each party, to keep the water flowing in the river.
J.R. Iman, President of the Painted Rocks Reservoir Water Users Association, explained the complex arrangement they have with FWP in deciding when and how much water will be released from the reservoir to satisfy as best they can each other’s competing aims. He said a lot of factors have to be considered like the depth of the snowpack, the likelihood of precipitation at key times, the temperatures driving the snowmelt and the weather in August when needs are greatest in the fields and in the fisheries. It all changes every year.
“If there’s a stress in the system,” said Iman, “everybody shares it. In hard times, everybody gets pinched, but nobody gets driven out of the game.” He said the key to working together was keeping the information and the decisions in the open so that all parties were aware of what is being done and why.
“What we found is that over a long period of time you can trade superstitions, but if you tell everybody exactly what you are doing and you are working together in a common cause, then we get the ability to help manage our needs with what Mother Nature offers us at the end of the year,” said Iman. “It’s as simple as that.”
The PRWUA, along with the Montana Farm Bureau and the Montana Stockgrowers Association, is in support of the current CSKT Water Compact. Crystal Evans of Project Management Inc, a government consulting firm, gave a presentation on the CSKT Water Compact at a recent meeting at the Corvallis Grange.
Evans noted that the CSKT was the only tribe in the state with a “Stevens’ treaty,” in this case the Hellgate Treaty, which allows for off-reservation water rights. She said this treaty is being interpreted by the courts as giving the Indians a claim to instream flows, not only in the mainstem, but from every tributary. She said that no tribe asserting this kind of right in the jurisdiction of the 9th U.S. Court of Appeals has lost its case.
Evans said that when the Tribes filed their 10,000 plus claims it was in response to the state’s adjudication process. They either filed for the rights or they would lose them. She said they did file them, but immediately asked the Water Court to delay adjudication while they tried to work out a deal, that is a Compact, with the state and the federal government. As a result, though, if the Compact fails, the issue will be litigated in the water courts.
“You want to know why we need to support the Compact?” asked Evans, “Just look at that,” she said, pointing to the map produced by DNRC showing the number of water rights that would be involved in that litigation.
Not everybody is happy with the deal, however, especially on the Reservation. When the claims were filed in 2018, it drew a quick and loud response from those in opposition. One of them, Kate Vandemoer, Director of Montana Land and Water Alliance, from Ronan, was one of the drafters of an alternative deal called the “People’s Compact.” She was recently invited to come to the Bitterroot and speak at a meeting of the North Valley Pachyderm Club in Stevensville.
Vandemoer insists that the Compact negotiated by the Montana Reserved Rights Commission is “not really a federal reserved water right settlement.” She claims it falls outside the Winters Doctrine by extending rights outside the reservation boundary, does not quantify the tribes’ federally reserved water rights, creates “new non-federal tribal rights” outside the reservation, denies non-Indian water right holders due process, removes 30,000 Montana residents from protections of the State Constitution, and enables federal co-ownership of state water resources.
She rejects the notion that the Hellgate Treaty gives the tribes a right to instream flow off the reservation. Although the 9th Circuit Court of Appeals has interpreted it otherwise, she said the treaty language only gives Indians the right to access their old hunting and fishing grounds, not the right to any water.
Vandemoer brought with her copies of her “Decision Makers Handbook,” a document “prepared for Senator Steve Daines.” In it she lays out the tenets of the “People’s Compact” and compares them to the CSKT Compact.
She criticizes Senator Tester for burying the Water Compact in other legislation so that it won’t get the scrutiny it deserves and claims that the state’s Republican legislators are helping push it through with deceptions. She said Tester’s bill simply confirms that the existing CSKT Compact is accepted in full, and then adds numerous other provisions that were never considered by the state of Montana.
“These hidden aspects of the CSKT Compact provide the opportunity for the Tribes to appear to ‘make concessions’ but ultimately to not change the severely problematic substance or provisions of the Compact,” it states in the handbook. She wants our state legislators to give up the charade and get behind the “People’s Compact.”