Concerns raised over water rights

by JIM MANN The Daily Inter Lake
| October 26, 2004 1:00 AM

It may not be a front-burner issue on the statewide campaign trail, but in the Flathead Basin, the future of water rights is a growing concern.

Landowners, real-estate agents and business owners are concerned about the uncertainties of water rights in the Flathead Basin - and some are paying close attention to the gubernatorial candidates' views on the issues.

First, there is the issue of prioritizing and quantifying some 10,000 existing water rights in the Flathead Basin through a long-overdue process called adjudication.

Second, the Confederated Salish-Kootenai tribes are pursuing legal action and negotiations through the state's Reserved Water Rights Compact Commission aimed at establishing sovereign regulatory control over water rights on the reservation.

"I don't want the decisions on the management of my land put in the hands of a government I have no say in," said Mike Grende, a Lake County landowner and Realtor. "It's unconstitutional."

Comments from Brian Schweitzer, the Democratic candidate for governor, have raised concerns for Grende and other nontribal landowners in Lake County.

"The first Montanans have rights superior to the state's and to those who came later. This water is yours. That is very clear, according to the treaty," Schweitzer was quoted as saying in Lake County's Char-Koosta News.

Grende said those comments suggest that Schweitzer is willing to concede the state's role in administrating water rights to the tribes.

But in an interview with the Inter Lake, Schweitzer said "that's a bad interpretation" of his remarks, which focused on the tribes' clear water rights priority - not tribal regulatory authority.

There is little disagreement that the tribes are indeed "first in line, first in time" for water. The conflict arises with tribal efforts to assume sovereign control over water rights, according to John Shontz, a property lawyer who represents the Montana Association of Realtors.

Schweitzer said he has faith that the compact negotiations will produce acceptable results for everyone.

"I'm a landowner [in the Hot Springs area] and I use irrigated water … so I'm personally affected by this issue," he said. "It's clear that these decisions aren't going to be made by the state alone, or the Salish-Kootenai tribes alone or the federal government alone."

Secretary of State Bob Brown, the Republican candidate for governor, said he also has faith in the compact negotiations, but the Montana Constitution clearly assigns authority over "all waters" to the state. And, he added, the state then can assign water rights.

"I'd hang my hat on the Montana state Constitution," he said. "The state of Montana possesses the water within its boundaries and the state has a process for granting water rights. So the claim of the tribes, to the extent that it conflicts with that, will have to be resolved with the state Supreme Court."

The court is scheduled to hear oral arguments in a tribal water-rights lawsuit against the state on Jan. 12.

The Northwest Montana Association of Realtors has intervened in that case, along with a group of legislators, the Lake County commissioners, a state association of water conservation districts and a group of Lake County property owners that includes Grende.

Grende said his group is concerned that transferring regulatory authority over water rights to the tribes will translate to uncertainties in real estate and development, to the detriment of property values.

"A governor in Montana cannot give sovereign control of water to another government because it violates the state Constitution," Shontz contends.

Another pressing matter for the next governor will be rejuvenating the adjudication process. Both Schweitzer and Brown say it will be a priority, but the two candidates have different views on how to pay for the burdensome process of prioritizing and quantifying roughly 40,000 water rights statewide.

Based on costs incurred by neighboring states such as Idaho, completing adjudication in Montana in the next decade is expected to cost roughly $80 million, according to Shontz.

Brown said the current pace is unacceptable.

"It looks like there's another 20 years at least if we continue to adjudicate the different basins around the state at the pace we are on," he said. "We need to get this wrapped up sooner than that because there are people downstream from Montana who have designs on our water."

Ignoring the problem invites "litigation and trouble," Brown said.

A group of legislators recently recommended that existing water rights holders pay a $10 fee to help pay for expedited adjudication.

"I'm open to that," said Brown, who adds that he still has questions about "whether that is the best way to come up with the extra money."

Schweitzer flatly opposes such a fee.

"That would be like the driver's license bureau losing all license records and saying that every driver has to come in and pay $10 because we lost your records," he said.

But the state needs to pursue adjudication with urgency, he said.

"We've got to complete our adjudication process and we have to do it quickly," he said. "The downstream states have expedited their adjudication and we have not. Unless we move and move fast, we risk losing the future of our water."

The lack of adjudication, the compact negotiations and the pending Supreme Court review are already creating considerable uncertainty in the Flathead Basin, both Grende and Shontz contended.

An interim water-use agreement with the tribes being negotiated by the compact commission has caused anxiety, primarily because it has not been disclosed to the public, Shontz said.

A draft version of that agreement, developed in summer 2003, states "it is further the position of the tribes that they retain the right to regulate the use of all reservation waters, surface and groundwater, for the benefit of all reservation water users."

Since then, lawyers representing the state, the tribes and the U.S. Department of Interior have been tinkering with the document behind closed doors.

Shontz, who also represents the Montana Newspaper Association, said he believes state officials have taken an illegal position in refusing to release the "working document" for review. The state Supreme Court has ruled that draft documents are public documents, he said.

Chris Tweeten, chairman of the compact commission, said the state does not have the unilateral authority to release the document because the tribes and federal government also are involved in its development.

"We don't think it would be beneficial to make this working document available to the public until the three parties decide whether they want to get behind it," he said.

But Tweeten, also an attorney with the Montana Department of Justice, was quick to add that the draft document will eventually be released for extensive public review.

Shontz said the secrecy surrounding the draft has given rise to rumors and speculation. Some people speculate, for instance, that the draft would give the tribes authority to regulate new residential water uses of less than 35 gallons per minute.

Grende said that kind of provision could have a serious impact on the real estate market in Lake County because of uncertainty over the cost and timeliness of a new administrative process.

While Tweeten insisted that the draft will eventually face public scrutiny, Grende and Shontz worry that the agreement will be a done deal regardless of public reaction.

"No deals have been made here," Tweeten said. "Nobody's agreed to anything. I'm quite confident in saying that if the governor wants to go forward with this, it will be on the basis that we want to take this out to see what the public thinks."

Reporter Jim Mann may be reached at 758-4407 or by e-mail at jmann@dailyinterlake.com