CSKT water compact not a done deal

Congressional ratification and lawsuits loom

———

The narrow and hard fought passage of the Confederated Salish and Kootenai Tribes water compact in the Montana Legislature is just one big step with more to follow before it’s entirely enacted.

Gov. Steve Bullock has been a leading supporter of the measure and is expected to sign it soon, ratifying the agreement at the state level, but the Tribes and the federal government must also ratify the water rights deal, a process that is expected to take years.

The CSKT water compact is the last of seven tribal water compacts ratified by the state — and by far it drew the most opposition.

Two previous tribal water compacts still await congressional passage — compacts for the Fort Belknap and Blackfeet reservations, which the state passed in 2001 and 2009, respectively.

Three other tribal compacts were passed by the state in the 1990s and earned congressional approval within three years. The Fort Peck compact was approved by the state in 1985 and, lacking a federal appropriation, was subject only to state and tribal ratification.

As of this year, new rules govern how tribal water compacts are handled in Congress. They can only be introduced by the House Natural Resources Committee chairman.

Rep. Rob Bishop, R-Utah, the current chairman, sent a letter to U.S. Attorney General Eric Holder and Interior Department Secretary Sally Jewell in February announcing the procedural change.

Bishop said he also will require that the Justice Department and the Interior Department review the settlement language and federal appropriations for each compact and agree on the final terms with the tribes before he will hear the bill in committee.

Rep. Ryan Zinke, who sits on the House Natural Resources Committee, said he plans to meet with Bishop next week to discuss the CSKT water compact. Zinke said he will take the lead during the committee’s deliberations.

Zinke emphasized that the complex CSKT agreement deserves close scrutiny by Congress, but he didn’t indicate whether he would ultimately support it.

“I’m going to look at it hard. It was so contentious, and I recognize there were some problems with it as it went forward,” Zinke said April 21. “I had concerns because the process became pitting neighbors against neighbors and it affected off-reservation rights, it affected senior water rights, and it affected the adjudication of water rights.”

Noting that Congress had a history of moving slowly on tribal water compacts, Zinke said he hopes Congress can take action on the CSKT compact within a single two-year session.

While Sen. Steve Daines has yet to say whether he will support passage of the compact, Sen. Jon Tester has supported the negotiated settlement throughout the process at the state level. Tester said he will seek bipartisan support in Washington as he works to move the compact forward.

CSKT representatives, including council leaders and attorneys, have consistently campaigned at meetings and legislative hearings in favor of the compact, and the Tribes are expected to ratify the compact.

But because Congress can exact additional requirements from the Tribes before it appropriates federal funding for implementation, the Tribes likely will wait until the terms are ironed out before they act.

In the meantime, the state may begin preliminary implementation work before the compact’s final ratification, but that will require the legislature to fund appropriations specific to the compact.

If it is fully ratified, the state will be on the hook for $55 million. An initial $8 million appropriation to start measuring water deliveries to irrigators, upgrading the Flathead Indian Irrigation Project and mitigating potential stock water losses was stripped out of the state budget proposal earlier in the session.

Sen. Chas Vincent, R-Libby, the compact bill’s sponsor, said he isn’t optimistic about seeing the $8 million put back in the final budget.

“It’s not looking like the House Conference Committee members are willing to put the money back in,” Vincent said April 22. “I’m just urging them at this point to put in enough resources to at least begin measuring and doing all the things we need to be doing on the ground to make sure irrigators are going to be getting their historical use.”

Vincent noted that because of the state’s financial obligation under the terms of the CSKT water compact, any preliminary work not specifically budgeted for that purpose is unlikely since the cost would not count toward the state’s $55 million obligation.

The CSKT water compact faces other challenges. Earlier this week, irrigators on the Flathead Indian Reservation filed a lawsuit to stop Bullock from signing Senate Bill 262, the bill that implements the CSKT water compact. Opponents have long vowed they would fight the compact to court.

“In a lot of ways, I’m glad it’s out of the legislative forum, because the next forum will be the courts,” said Catherine Vandemoer, who heads up the Montana Land and Water Alliance and has been a leading critic of the proposed settlement. “In the likelihood the compact would pass, we’ve had our attorneys working on immediate and long-term strategies since last September.”

Characterizing their legal strategy as “very aggressive,” Vandemoer said additional challenges to the compact will likely include opponents’ frequent arguments against the measure’s constitutionality. State and tribal officials have repeatedly said those arguments lack merit, pointing to case law and similar language in other tribal water compacts.

“I’d say there are five or six constitutional issues that arise under the Montana and U.S. constitutions that will have to be addressed,” she said.

Vandemoer also floated the possibility of a class-action lawsuit against the state, alleging that a large class of Montanans would be able to claim injuries, such as property devaluation under the terms of the compact.

Melissa Hornbein, an attorney for the state compact commission who helped negotiate the terms of the compact, has repeatedly claimed the CSKT compact complies with the constitutions.

She also said concerns over loss of historical water deliveries and property devaluation likely would not be litigated until the compact is implemented.

“I would speculate that those types of legal claims will not be ripe until the compact is actually implemented,” she said. “I would expect any litigation we see now is going to be directed at the legal and constitutional arguments.”

The Tribes also face a separate challenge from Flathead County Republican Central Committee chairman Jayson Peters, who submitted a complaint to the state commissioner of political practices on April 10  alleging that the Tribes and compact-aligned groups had engaged in improper lobbying activity.

Commissioner Jonathan Motl said the Tribes had not responded to the complaint, but he expects they will request an extension on the 20-day response deadline and engage the complaint via a law firm that contacted him earlier this week.

“We’ll usually give them another 20,” Motl said. “In that situation, you want to allow them enough time to do something that in the end saves the commission’s time and produces better information for rendering a decision.”