Commissioners asked to reconsider water compact opposition

Gov. Steve Bullock has asked the Flathead County Commissioners to reconsider their opposition to the proposed Confederated Salish and Kootenai Tribes water rights compact.

Commissioners Phil Mitchell and Pam Holmquist voted earlier this month to send a letter to state officials opposing the compact and asking the governor to respond to their concerns. Commissioner Gary Krueger voted against the letter and supports the proposed compact.

The governor suggests issues raised by Mitchell and Holmquist “are rooted in significant misunderstandings about the compact.”

Bullock’s chief legal counsel, Andrew Huff, responded to the commissioners’ concerns point by point in a detailed memo.

“As the memorandum makes clear, the compact protects the homes, businesses and communities of Flathead County,” Bullock said.

The proposed water-rights compact is the result of more than 10 years of negotiations and must be ratified by the state, the tribes and U.S. Congress. It will be presented to the Legislature for approval during the current session. The compact has been approved by the Montana Reserved Water Rights Compact Commission.

The compact would take steps to quantify the tribes’ water rights and obligate the state to spend $55 million to improve irrigation infrastructure on the Flathead Indian Reservation.

“I do not believe that the county’s opposition to the compact is well-founded, for both legal and factual reasons,” Huff said.

Regarding the assertion that the proposed compact is the only compact in Montana to include off-reservation water rights, Huff said it’s important to note that the Confederated Salish and Kootenai Tribes had agreed to cede the vast majority of their off-reservation water rights claims.

“These claims cover about half the state and would, if pressed by CSKT, result in significant disruption to the statewide adjudication proceedings,” Huff said. “Instead, the compact recognizes eight off-reservation water rights to be held by CSKT and 14 to be held jointly by CSKT and the state. CSKT has agreed to exercise these rights pursuant to carefully crafted limitations, which mitigate or eliminate impacts to existing water users.”

The reason why the CSKT compact is the only one to include off-reservation water rights derived from treaty fishing rights is straightforward, Huff said: “CSKT is the only tribe in Montana to have entered into a ‘Stevens Treaty.’”

The Hellgate Treaty is one of several treaties negotiated in the 1850s by federal territorial governor Isaac Stevens, Huff said. These treaties have been held by the U.S. Supreme Court to preserve meaningful off-reservation fishing rights for tribes, he said.

“The assertion that these rights are ‘a new type of water right’ and that they are ‘not supported by the Treaty of Hellgate’ is legally incorrect,” Huff said.

The belief that the CSKT compact will create “dire consequences” to Flathead County citizens and businesses hasn’t been backed up by any reason or facts, he said. Just the opposite is true, he said — the CSKT compact will protect citizens and businesses.

“Without the compact, CSKT will be able to ‘call’ any non-tribal user of water, including water for homes, businesses, city and towns, and farms both on and off the reservation, including Flathead County,” he said. “With the compact, all non-irrigation water users are completely protected from tribal calls.”

As for the assertion that the compact violates the Montana Constitution, the CSKT compact provides a water administration framework and thereby ends an 18-year administrative void and brings the reservation into compliance with Article IX of the Constitution.

Mitchell said Jan. 26 he’s still not satisfied is drafting another letter to reiterate the commissioners’ continued opposition to the compact as it’s currently written. He said he’s simply trying to convey what a majority of Flathead Valley citizens feel about the proposed compact.

“I think the compact’s supporters are stretching what the law says to fit their agenda,” Mitchell said.

Krueger said Bullock’s letter speaks for itself, and he continues to support the compact.