Judge rules for irrigators in water compact

An historic water rights compact set to go before the Montana Legislature suffered a setback last week when a Lake County District Court judge ruled in favor of irrigators opposed to the agreement.

The agreement would violate the irrigators’ constitutional rights by taking their private property rights without just compensation, the judge ruled.

While the overall compact is an agreement between the Confederated Salish and Kootenai Tribes, the federal government and the state of Montana, and it addresses water rights across Western Montana, a portion of the compact deals with managing water use inside the Flathead Indian Reservation.

Fearing that they might lose their water rights or be allocated less water for their farms and ranches, the Western Montana Water Users Association sued three irrigation districts inside the reservation and a new entity, the Flathead Joint Board of Control, on Dec. 12.

On Dec. 14, Lake County District Judge C.B. McNeil ruled that the Flathead Indian Irrigation Project agreement must first be approved by reservation irrigators either through a vote or petition, and the agreement must be submitted to his court before it goes to the irrigators for a vote.

McNeil issued his ruling on the irrigators’ petition for injunctive relief on Feb. 15. Noting that the Flathead Joint Board of Control, which would manage water use on the reservation, was created by the state of Montana, McNeil ruled that his court had jurisdiction over that portion of the compact.

He went on to note that water rights in the reservation are held by individual irrigators, not the board, and that state law does not provide the board with the authority to assign water rights privately held by those irrigators.

State law does not provide the board with the authority to assign the irrigators’ water rights to the Tribes without just compensation, he ruled, or with the authority to require irrigators to assign their water rights to the Tribes as a precondition to joining the Flathead Indian Irrigation Project.

McNeil further noted that state law does not provide the board with the authority to set up a forum for disputes, which would deprive irrigators of their constitutional rights for access to state district courts and state water courts.

The judge also noted that state law does not provide the board with the authority to contractually obligate the irrigators to defend the Tribes’ application for water rights to the Montana Water Court, pointing out that the Tribes’ claim would be in direct conflict with the irrigators’ own water rights.

State law does not provide the board with the authority to request that the tax status of the irrigators’ lands be changed so they could be taxed to pay for the numerous irrigation infrastructure projects listed on 17 pages of the draft agreement, McNeil ruled.

The agreement between the Tribes and the irrigators on the reservation is considered one of three legs that support the 1,400-page draft compact. The first is to quantify the Tribes’ water rights, which were established by the federal government by the 1855 Hellgate Treaty. The second is to establish a process and board for administering water rights inside the reservation.

The amount of water in a federal reserved right is determined by the Reserved Water Rights Compact Commission, which was created by the Montana Legislature in 1979. The nine member commission sunsets in 2013.

As proposed in the draft compact, the Tribes would hold rights to 229,383 acre-feet of water in the Flathead River system and 90,000 acre-feet of water stored in the Hungry Horse Reservoir. The Tribes could also lease up to 11,000 acre-feet to mitigate certain water developments on the reservation.

To put that in perspective, the total annual average flow of the Flathead River, measured by the U.S. Geological Survey gauge at the U.S. 2 bridge in Columbia Falls from 1952 to 2011, is about 7 million acre-feet, and the total capacity of the Hungry Horse Reservoir is about 3.5 million acre-feet.

Chairman Chris Tweeten said the commission will ask the legislature to proceed with a vote on the draft compact, which he says is separate from the agreement between the Tribes and the irrigators.

Meanwhile in the Flathead, the county commissioners agreed to draft a letter for the commission expressing their opposition to the compact.

“The gist of the letter is that we don’t support the compact,” commissioner Pam Holmquist said.