The Montana legislative session has begun and one of the 900-pound gorillas in the room is the Confederated Salish Kootenai Tribal water compact. The negotiations have wrapped up and a bill is being drafted to present to the Legislature.
For those of you who haven’t followed the negotiations, the compact is an agreement for the equitable division and apportionment of water rights between the state and its people and the Indian tribes. The state has already negotiated and the Legislature approved 17 compacts with six tribes and five federal agencies in Montana.
The CSKT compact is different from previous tribal compacts in that the tribal rights stem from the Treaty of Hellgate, which is a Stevens treaty. This treaty gives the tribe an instream flow right to utilize all waters of Montana where they traditionally fished. The language has been upheld through several court cases in Montana, other western-region state courts and the federal courts.
The Montana Farm Bureau policy supports a negotiated compact for one very big reason, it protects the water rights of farmers and ranchers. If there is not a negotiated agreement, the tribe is required by state law to file and litigate their claims for instream flow rights on all water as far east as the Milk River, the upper Musselshell, the Upper Missouri and Upper Yellowstone. This would require all current water rights holders on those streams and tributaries to defend their rights against an 1855 right (the year the treaty was signed). Granted, all of the tribes' claims may not be upheld but each individual water right holder would have to go to court to defend their rights. This would cost Montana farmers and ranchers as well as municipalities and industrial users millions of dollars.
The current agreement contains the following terms. All stock rights, municipal, domestic and commercial rights on and off a reservation are 100 percent protected. All irrigators with flow rates of 100 gallons per minute or less are 100 percent protected on and off the reservation. Additionally, the compact protects the ability to transfer water rights with property when land is bought, sold or passed on to future generations of Montanans.
The compact does not change regulatory jurisdiction over anything off the reservation. The tribe has no new say over management of water rights, water quality, wildlife or anything else off the reservation. Off the reservation the instream flow rights on the Kootenai cannot be called unless Libby dam is removed and on the Lower Clark Fork — the tribe’s right is based on the amount of water Avista holds and its FERC license.
The tribes are settling for no water of their own on the Bitterroot and instead will co-own current FWP rights out of Lake Como and Painted Rocks. The co-owned rights will have the priority date and flow rate of the existing FWP right. The right doesn’t change — the tribe is added as an additional owner. The same would be true of the Upper Clark Fork where they would co-own the former Milltown dam right with FWP. On the reservation the agreement defines and protects historic farm delivery volumes, provides State and federal funding to accomplish operational and rehabilitation and improvements on the irrigation project.
The bottom line is that the CSKT is a fair settlement for water users on and off the reservation. Without a compact, the adjudication of Montana’s water could be held up for decades, creating uncertainty, economic loss, and costing Montana’s farmers, ranchers, and water users millions. It is time to finish this process and move forward with the adjudication of Montana’s water.
John Youngberg is the executive vice president of the Montana Farm Bureau Federation. MFBF is an independent, non-governmental, voluntary organization with its roots in agriculture. MFBF is the state’s largest agriculture organization and advocate for Montana agriculture.