POLSON — As the Confederated Salish and Kootenai Tribes water compact awaits ratification, Kathy Olsen is watching closely.
Olsen manages the state’s Water Resources Regional Office in Kalispell, which processes water rights claims under the jurisdiction of the Montana Water Court. At last week’s Flathead Basin Commission meeting in Polson, she presented a report detailing how the water compact will affect that task.
If it’s ratified by the federal and tribal governments, the Salish and Kootenai Tribes will receive whole or partial ownership of 308 water rights.
If it doesn’t, more than 10,000 claims that they and the U.S. Department of Justice have filed will have to be adjudicated by the Montana Water Court.
“My job is a whole lot easier with that compact,” Olsen said.
The compact, a sweeping agreement that quantifies the tribes’ water rights and revises administration of water-related matters on the reservation, narrowly cleared the Montana Legislature in 2015 and now awaits federal and tribal ratification. Olsen’s presentation bolstered a key claim by the water compact’s supporters: That it’s an alternative to decades worth of costly litigation over water rights.
Speakers at a Ronan information session hosted by the Flathead Irrigation District last week raised similar points.
”The general sense that we get from decision-makers out in the state … is that a negotiated settlement often results in a better outcome,” explained Ethan Mace, a hydrologist with the Department of Natural Resources and Conservation.
He stressed that predicting future scenarios involved some speculation, and that the courts could be a viable means of resolving water claims. But he said that “the advantage of a compact, a negotiated settlement, is that you know for sure what you’re granted at the end of the day.”
And according to the department report, the litigation without the compact could be vast. Under the pact, the tribes will receive 211 on-reservation water rights, 10 new off-reservation rights, and co-ownership in 87 more off-reservation rights held by the Montana Department of Fish, Wildlife and Parks. All the rights are located west of the Continental Divide.
But if it’s not approved, more than 10,000 stayed claims, filed by the tribes and the U.S. Department of Justice under the terms of the compact, will need to be adjudicated. Based on the tribes’ historical territory, they’re scattered across Montana.
That prospect doesn’t faze Sen. Keith Regier, R-Kalispell, one of the compact’s opponents in the Legislature. One of their prime concerns is that, for unique legal and historical reasons, the compact grants the tribes “instream flow” rights beyond the reservation’s boundaries. That, they say, could harm water users and property values across a broad swath of Montana.
“The water court exists to adjudicate water claims, and they do a great job,” Regier wrote in an email. “The water court can handle the CSKT claims. The threat of a large number of water claims is no reason to give in to the massive overreach of the current Compact.”
But Susan Lake, a Republican and irrigator with the Flathead Irrigation District, is keen to avoid taking the tribes’ claims to court. “Without the compact, obviously our water adjudication stretches out 20 or 30 more years,” she predicted. As is, the Legislature’s Water Policy Interim Committee expects the water court’s current caseload to last until 2028.
Mace, the state hydrologist, also cautioned that the adjudication process would likely favor the tribes. “They have time immemorial priority because of their aboriginal heritage,” meaning that their claims to water are senior to all others. “A priority-arranged system would give them the first cut of water.”
The water court applies a prima facie (“first sight”) standard to claims, meaning that irrigators who object to the tribes’ claims would bear the burden of disproving their seniority.
If the tribes’ claims reach the Water Court, the Flathead Irrigation District’s Lake, also a farm owner, foresees a grim endgame. “My fear is if we don’t have the compact, we won’t be farming on the reservation.”
Several steps remain before the compact can take effect. It’s currently undergoing a lengthy federal review and negotiation process, then must be ratified by Congress. Sen. Jon Tester, D-Mont., introduced a ratification bill in 2016, but it failed to advance. Had it been enacted, it would have required the federal government to commit $2.3 billion, mostly for infrastructure improvements on the reservation.
At the time, Tester acknowledged that “the CSKT settlement still has a ways to go before it is ready for Congress to enact, but introducing this bill is a first step to getting the tribes and the federal government to sit down and hammer out a final agreement.”
Since then, tribal spokesperson Rob McDonald said that talks between the tribes and Interior Department “have been intense and productive.”
“The Interior department did express initial concerns about the cost at the hearing on S. 3013, but since then their staff has been able to review our claims materials,” he wrote in an email. “We believe the depth, breadth, and magnitude of the United States’ liability exposure is better understood now. CSKT will continue to work with Federal staff in accessing our claims and we are confident an acceptable settlement will emerge.”
Tester spokesperson Marnee Banks said that Montana’s senior senator “will take his direction from Montanans about when and how to introduce it in the future.”
The two other members of Montana’s congressional delegation are also taking a wait-and-see approach. In an email, a spokeswoman for Sen. Steve Daines, R-Mont., wrote “This proposal is more expensive than Montana’s four previous Indian water settlements ratified by Congress combined and is much more controversial with far-reaching consequences across the state. We need to measure twice and cut once.”
Congressman Greg Gianforte, R-Mont., predicted in a separate statement that the Justice and Interior departments “could conclude their process and require changes to the water compact before any action is taken. Regardless, I'll continue working with the tribes and surrounding communities on this issue as the review moves forward."
If all parties haven’t ratified the pact by April 2019, four years after its state-level passage, Montana will have the right to withdraw. At Wednesday night’s meeting in Ronan, Mace made clear that’s not an inevitable outcome. Of five Indian water compacts currently in effect in Montana, only one, with the Northern Cheyenne Tribe, passed Congress within four years. One other agreement, for the Fort Belknap Reservation, was approved by the state Legislature in 2001 but has since been pending.
As these discussions grind on, the agreement is cropping up on the campaign trial. During last week’s U.S. House candidates forum sponsored by Western Native Voice in Ronan, Democrat Kathleen Williams identified the state’s pending water compacts as one of the top issues facing Indian Country. “It’s a solution on so many fronts, and I haven’t heard a thing from [Gianforte] about it,” she said afterwards.
Libertarian candidate Elinor Swanson, also at the forum, said that "I'm not yet completely convinced that it respects everyone's property rights, which is very important to me, obviously as a Libertarian, so we need some sort of agreement that fully respects everyone's water rights, everyone's property rights."
In the Senate race, a spokesperson for Republican Matt Rosendale said that “we've had other water compacts come before the Legislature and pass with near-unanimous support from both legislators and the local communities but that was not the case with this one. Matt believes we need to build consensus and find support from all stakeholders.”
Standing at this complex intersection of water, land and politics, the Flathead Irrigation District’s Susan Lake says she’s backing Rosendale — but also has her eye on the hard-fought compact.
“All of us here are concerned about what that legislation looks like at a federal level,” she said. “We have to appreciate that Senator Tester got that process started, but we really want to be a part of that discussion, and I think Matt’s going to be right there also.”