Polson

Flathead Lake and the Mission Mountains as seen from Polson. The Montana House Judiciary Committee is planning a lengthy hearing Saturday on the Flathead tribal water-rights pact.

KURT WILSON/Missoulian/

Lorents Grosfield doesn’t want to go to court to re-litigate his rights as an irrigator on his Sweet Grass County ranch. But the prospect of uncertain years in court looms for Grosfield and other central Montana ranchers.

The Montana Legislature has one last chance to approve a negotiated water compact with the Confederated Salish and Kootenai Tribes. If the 2015 Legislature fails to ratify the compact, under Montana law, the CSKT must file their water claims in the state’s Water Court by June 30. There are expected to be thousands of claims, including water far beyond the borders of the tribes’ reservation along Flathead Lake.

The CSKT have rights in settled federal law to water on the Yellowstone River at least as far east as Billings. They have rights on the Musselshell, the Missouri and the Milk. Quantifying those rights through litigation could take decades, and untold millions of taxpayer money to fund the water court. State water rights holders whose claims had already been adjudicated would have to go back to court.

Grosfield, a Republican, carried other tribal water compact bills when he was a state lawmaker and helped negotiate a compact with the U.S. Forest Service. All of them sailed to easy approval, which Grosfield says resulted from the respect lawmakers had for the work of the Montana Reserved Water Rights Compact Commission and its staff, who worked for years on each compact.

The CSKT compact is “a very good compromise that does protect interests of Montana water users on and off the reservation,” Grosfield said. “One party doesn’t get it all.”

“The compact says the tribes will forego all off-reservation water rights in Montana, except for eight near the reservation,” Grosfield said.

“As a cattle rancher in south central Montana, I know if the tribe files for these, they’re going to get ‘em, at least some of ‘em.”

Grosfield isn’t the only Montana ag producer supporting the compact. The Montana Farm Bureau and the Montana Stockgrowers Association are part of a campaign to persuade lawmakers to approve the compact.

'As fair as it can be'

From Clyde Park, Dorothy Bradley, a member of the Compact Commission, can see the value of the CSKT compact. She helped sponsor the Crow water compact as a Democratic state lawmaker and then served on the water commission for eight years.

Since the 2015 Legislature, “changes were made to try to accommodate people, to get the law right and to get the science right,” Bradley said. “It’s as fair as it possibly can be.”

“Water is difficult and we will always have shortages,” Bradley said. The compact provides for “shared shortages.”

The bottom line is that the CSKT’s water rights predate everyone else’s. The rights were granted by the federal government under the Hellgate Treaty of July 16, 1855, which established that the tribes would retain the right to fish in areas they had traditionally used when they gave up their land and settled on the reservation. The U.S. Supreme Court held in a 1908 decision that such rights don’t require the water to be put to beneficial use and cannot be abandoned. The U.S. Supreme Court also has held that the grant of traditional fishing rights includes in-stream flows sufficient to support those fish.

The CSKT’s rights extend to “time immemorial,” no other claims are senior to that.

More than 30 years ago, the Montana Legislature and governor decided that rather than litigate tribal water claims in federal courts, they would create a state forum. Compacts have been ratified with all tribes in Montana, except the CSKT. The Legislature had never rejected a compact until the CSKT compact languished in committee during the 2013 session.

Transparent process

The compact commission has been laudably transparent. All its meetings were open to the public and provided time for public comment. Audio of all meetings is posted on the commission’s web page, along with the proposed compact, other documents and background information. Anyone who wants to know details can go online and get them.

The compact was unanimously approved on Jan. 12 by the commission, which includes Senate President Debby Barrett, R-Dillon; Rep. Dan Salomon, R-Ronan; Sen. Dick Barrett, D-Missoula; and Rep. Kathleen Williams, D-Bozeman.

Gov. Steve Bullock and Attorney General Tim Fox have urged the Legislature to approve the compact.

“I’m pleased that an agreement has been reached that respects tribal rights, while ensuring that irrigators and residents in the region continue to have access to a reliable water supply,” Bullock said.

“My primary concerns have been that the compact be constitutional and that it guarantees irrigators receive sufficient water to continue farming today and in future generations. This compact, which is significantly better than the previous one, does both,” Fox said.

All previous tribal water compact settlements included state appropriations and larger federal appropriations to the tribes. Along with approving the compact, the Legislature is being asked to appropriate part of the state’s proposed payment this biennium to be used mostly for improvements to irrigation infrastructure on the reservation.

We call on all Montana lawmakers to carefully consider the compact’s bipartisan support among elected leaders, including Fox and Bullock. Don’t be confused by naysayers whose attacks on the compact are not based in law. Read for yourself what the Reserved Water Rights Compact Commission and the attorney general say about the compact.

The CSKT compact is important to the entire state, not just to Western Montana. Lawmakers from Bozeman, Big Timber, Billings, Miles City and Glasgow should vote to ratify this carefully negotiated agreement based on science and law. Avoid a generation of litigation, and provide certainty for agriculture producers and other water users in your district.

As Grosfield said: “It’s very important for people off the reservation to pay attention. If there is not a compact, it’s all going to go to court.”

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Opinion editor for The Billings Gazette.