County commissioners vote to support CSKT water compact

Tribes are talking about going to court

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The Flathead County Commissioners will send a letter of support for the draft Confederated Salish and Kootenai Tribes water compact to the Montana Legislature’s interim Water Policy Committee.

The commissioners reversed their earlier opposition to the draft compact with a 2-1 vote on Dec. 30, with commissioner Pam Holmquist opposed. She said she agreed that a water compact is needed, but not the one “as it’s written today.”

The compact, which took a decade to negotiate, seeks to quantify water rights under the 1855 Hellgate Treaty and covers water rights on the Flathead Indian Reservation and across western Montana. The 50-page compact is supported by about 1,400 pages of technical documentation. Both the Montana Legislature and Congress must ratify the proposed compact to put it into effect.

Since its inception, the Montana Reserved Water Rights Compact Commission has negotiated and completed 15 compacts across Montana, including six with Indian reservations. Commission chairman Chris Tweeten says water rights held by CSKT on and off the reservation have been established in federal courts.

According to the draft compact, CSKT 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. The Flathead River’s flow averages about 7 million acre-feet, and the reservoir holds about 3.5 million acre-feet.

The Tribes would receive $55 million from the state and additional money from the federal government. About $8 million of the state money, raised by selling bonds, would go toward implementing the compact, but most would go to improving irrigation infrastructure on the reservation.

Commissioner Cal Scott said he opposed the compact about a year ago and considered sending a letter to last year’s Montana Association of Counties convention rejecting the compact. But he felt that now a letter in support would initiate the due process and public engagement needed to proceed.

Commissioner Gary Krueger said a lot of information the commissioners received early on “was partial or maybe not even correct.” He said that after weeding through all the documentation, he’s gone “from the point of wondering if the compact is good for us to the point of it is good for us.” He said Flathead County has a lot to gain from the compact.

Sen. Bruce Tutvedt, R-Kalispell, and Sen. Dan Salomon, R-Ronan, spoke to the commissioners in support of the compact so it could be presented to a Water Policy Commission meeting in Helena on Jan. 6. Both legislators are irrigators.

Ever since the CSKT compact became available for public review in 2012, it has encountered strong opposition from ranchers on the Flathead Reservation and others across western Montana.

But the county commissioners for both Missoula and Lake counties recently voted unanimously to send letters of support to the Montana Legislature’s interim Water Policy Committee.

In January 2013, Sen. Verdell Jackson, R-Kalispell, urged the Flathead County Commissioners to take a stand against the proposed compact. He and other critics called the draft compact flawed and not ready for legislative consideration.

Jackson said he couldn’t support the compact as written because it conflicted with state water laws and the Montana Constitution. He also said he would introduce a bill in the Montana Legislature that would allow compact negotiations to continue for another two years.

The Legislature in April turned down the two bills that would have ratified the compact. In response, the Tribes said they would likely take their water rights claims to court.

The Montana Reserved Water Rights Compact Commission recently issued a 37-page report on the CSKT compact in response to a request by Gov. Steve Bullock, after he vetoed Jackson’s bill to reopen negotiations with the Tribes. The governor said he wanted many of the questions and issues raised by critics answered.

The report states that the Tribes have notified the Compact Commission that they are preparing claims for filing in event the 2015 Montana Legislature does not approve the compact. The Tribes must file those claims by June 30, 2015, after a deadline was extended from 2013.

The state estimates that the number of claims will number in the thousands, and the Tribes indicate that, if the compact is not ratified by the Legislature in 2015, off-reservation water rights claims for instream flows will be “far more extensive and widespread” than the eight individual and 14 co-owned rights agreed to in the proposed compact.

The Compact Commission noted that some of those off-reservation claims by the Tribes could be found valid in water court and would be awarded the “time immemorial” priority dates.

If the Legislature does not ratify the compact in 2015, the Compact Commission report said, protections for existing junior water rights contained in the compact would be lost, persons holding state water rights would have to defend their claims in a costly, lengthy and uncertain legal process, the state would not be able to legitimize domestic uses developed on the Flathead Indian Reservation since 1996, extensive changes to irrigation infrastructure on the reservation might be needed to address changes in water rights there, and funding would not be provided to improve irrigation infrastructure on the reservation.

Jackson said the Compact Commission’s report “is a lot more detailed than we’ve received in the past,” but it is “just continuing the same points to sell the compact that they’ve been making since the beginning.” He also said a number of constitutional and legal issues must still be resolved.