Group crafts alternative water compact

Under the premise that water rights holders in Western Montana were not adequately represented in negotiations for a Confederated Salish-Kootenai tribal water rights compact, two legislators presented an “alternative” compact to Flathead County commissioners Thursday.

“The intent of this exercise is to offer a comparison compact that shows what an ‘acceptable’ compact would look like to the citizens of Western Montana,” states the draft proposal submitted by state Sen. Verdell Jackson, R-Kalispell, and Rep. Keith Regier, R-Kalispell.

A compact that was negotiated over a decade was presented to the Legislature this year, but it never got out of the House Judiciary Committee, which Regier chairs. The compact requires ratification by the Legislature, the tribal council and U.S. Congress to take effect.

Jackson told the commissioners that he believes the compact was fatally flawed, and if it is reconsidered in its current form during a special legislative session, it once again will not pass.  

Jackson claimed the compact commission, including members who were supposed to represent state water rights holders, did not address issues and concerns raised by himself and others. He said he attended commission meetings but never observed any actual negotiations.

“Things we brought up were never addressed,” he said.

So the alternative proposal was developed by a group called Concerned Citizens of Western Montana and a handful of legislators with the idea that it could be considered by the Legislature if a special session comes up.

Jackson conceded that the alternative was developed without input from the tribes.

The main change in the alternative is that it eliminates tribal claims to off-reservation water rights. Regier noted that none of the previous tribal compacts approved by the Legislature included off-reservation water right claims, and the Confederated-Salish Kootenai compact is the only one to apply to a large number of nontribal members on the reservation — about 23,000 people compared to about 5,000 tribal members.

The alternative proposal concentrates on quantifying the present and future needs of all possible irrigation lands on the Flathead Reservation. It also provides protection for state water rights holders on the reservation.

The negotiated compact would have established a system and an administrative board to apply different water law on state water rights holders on the reservation compared to those off the reservation, Jackson said.

The state “does have jurisdiction to administer water resources on the reservation,” the alternative proposal states. The “state has constitutional duty and statutory authority to protect, manage and administer state-based water users.”

The alternative also would split about 100,000 acre-feet of water from Hungry Horse Reservoir evenly between the state and tribes, when the negotiated compact provides all of that water to the tribes. Jackson said the state should get something in return for the funding it must provide to the tribes, mostly for water infrastructure improvements, once a compact is approved by the Legislature.

Flathead County Commissioner Gary Krueger said the representation for state water rights holders during compact negotiations was “unsatisfactory,” but he raised concerns about the lack of tribal input for the alternative. Presenting it to the tribes with any expectations is, in his view, the same thing as presenting the controversial negotiated compact to the public earlier this year and expecting it to be well-received.

Chris Tweeten, chairman of the Montana Reserved Water Rights Compact Commission, said he had yet to see the alternative proposal and therefore could not make substantive comments about it.

“Our negotiating team would like to take a look at it. If legislators want input from the compact commission, we’d be happy to do that,” he said. “If the tribes haven’t agreed to it, it is of no effect whatsoever. Having no tribal input is going to be an issue, obviously.”

Tweeten said the commission has been directed by Gov. Steve Bullock to prepare a report that will address, point by point, concerns and objections to the negotiated compact that have been raised by lawmakers and others.

The report will be submitted to an interim legislative water policy committee, with the possibility of getting the negotiated compact reconsidered by the Legislature in 2015. That report could be submitted by this September, Tweeten said.

Meanwhile, the tribes now have two years to file legal claims for water rights if they choose to do so. A statute directing compact negotiations suspended their ability to file claims, and that suspension expires July 1.

In the months to come, Jackson said the alternative compact will be presented to commissioners in 11 counties that would have been affected by the negotiated compact, and he said he would approach tribal officials about the proposal.