Fans, foes sound off on Flathead water compact

During a marathon Senate Judiciary Committee hearing Monday in Helena, a bill to ratify the water rights compact for the Confederated Salish and Kootenai Tribes drew scores of farmers, ranchers, tribal members, lawyers, Realtors and others passionately advocating for both sides of the controversial issue.

State Sen. Chas Vincent, R-Libby, is sponsoring Senate Bill 262 and has emerged as a top proponent of the compact. After opposing the previous version of the compact, which died in a House committee in 2013, Vincent served on the interim committee that reviewed the agreement and recommended a number of changes incorporated into the new version.

“I went into the 2013 session still unconvinced that what we were doing [with the previous compact] was right,” he said during his opening statements in the packed Old Supreme Court Chambers of the state Capitol.

Vincent said he decided to support the new compact after several key requirements were met, including getting a third-party analysis of the water modeling used in the compact, ensuring more flexibility to meet on-reservation irrigators’ historic water use, allowing nontribal water users to pursue existing claims in court and allowing for withdrawals from Hungry Horse Reservoir when flows are insufficient to meet both tribal and irrigation needs.

Rep. Nancy Ballance, R-Hamilton, spoke in opposition to the compact, focusing her testimony on what she called insufficient study into the environmental, legal and economic impacts during the interim committee’s study of the bill last year.

“The resulting legal review left many of the questions we asked unanswered, or with answers that conveyed uncertainty,” she said. “The environmental review focused almost entirely on the water use agreement [which was not included in the revised compact] … and none of the in-stream values on or off the reservation were based on fisheries science or fish habitat needs.”

She added that an economic study was never made public. 

At the four-hour mark, committee chairman Sen. Scott Sales, R-Bozeman, cut off the stream of opponents to devote the hearing’s final hour to questions from committee members. By that point more than 80 people had stepped up to the microphone to officially voice their opposition to the compact, with more still waiting when the time limit was exceeded. Proponents for the bill numbered more than 100.

Sen. Jennifer Fielder, R-Thompson Falls, asked state attorney Melissa Hornbein about a provision in the compact allowing the tribes to lease water rights for a longer duration than nontribal members, in line with opponents’ charges that the compact violates equal protection. Hornbein responded there are other statutes addressing water right leases but she was unsure which could apply to a given situation.

Several opponents voiced concerns that the five-member water management board, also known as the unitary management board, would be dominated by tribal interests.

Under the compact, the water management board would oversee the implementation and administration of the agreement. The fifth member of the board is selected by the other four members based on recommendations of the county commissioners in counties overlapping the reservation’s boundaries. Those counties receive proportional representation in the selection process, relative to how much reservation land falls in each county’s jurisdiction.

Catherine Vandemoer, who heads the board of the anti-compact Montana Land and Water Alliance, attacked the provision as a violation of equal protection under the state Constitution.

“Does the state have the authority to extend tribal jurisdiction over non-Indians?” she asked.

Proponents of the compact have responded that the management board is instead an affirmation of Article IX, Section 3 under the state Constitution, which requires the Legislature to “provide for the administration, control and regulation of water rights.” They argue the compact is an attempt to satisfy that provision in part by creating the management system on the reservation.

Similarly, Montana Deputy Attorney General Cory Swanson referred a question by Sen. Diane Sands, D-Missoula, to a memo put out by his office addressing constitutionality issues raised by opponents. Sands asked if there were issues of a “taking” under the U.S. Constitution’s Fifth Amendment, which the memo stresses are limited to “the extraordinary circumstance when no productive or economically beneficial use of the land is permitted,” referring to a 1992 U.S. Supreme Court decision.

Vernon Finley, the tribal council chairman, responded to one question by noting he was happier with the previous session’s compact, and in his testimony said he felt the tribes had made significant concessions.

“We have given much of the rights that were guaranteed to us by the [Hellgate] Treaty of 1855,” he said. “Our children and grandchildren don’t need to be fighting this battle. ... We come before you in a spirit of cooperation, and a spirit of sharing and being good neighbors.”

However, Fielder appeared concerned about the tribes wielding too much influence over the management board, and asked Hornbein if there was any guarantee whether the two state-appointed board members would not also be tribal members. Hornbein responded there was no such assurance, in the same way the tribe could elect to appoint nontribal members to their two spots on the board.

Fielder then called on tribal attorney Rhonda Swaney, saying she saw evidence in the tribal council’s minutes that the tribe had made political donations in the past. Swaney responded that the tribes had made two donations of roughly $20,000 to the Democratic Party and two another political action committee in the past year.

Vincent took particular exception to the implication that the tribes would use financial influence to skew the board’s makeup toward their interests.

“Before we start pointing fingers about who’s raising money for [political action committees], we ought to take a look in the mirror, folks,” he said.

With the hearing running past the five-hour mark and eating into the Senate floor session, Vincent gave his closing statements, appearing to lose patience with what he characterized as a refusal to face the facts of court precedents and existing case law. Most of the compact opponents had attacked the constitutionality of the bill, with particular attention to Article IX of the Montana Constitution.

“There’s been a lot of things said today, but a lot of the things that were said in interpreting what’s constitutional and what is not didn’t come from lawyers. It came from others trying to act like lawyers,” he said.

He also denounced references to the “time immemorial” rights given to the tribes as based on “folklore” as well as charges that the compact would preclude irrigators’ ongoing adjudication claims.

“Read the bill. It’s not true,” he said.

The Senate Judiciary Committee has not set any time to act on the bill. Gov. Steve Bullock has repeatedly indicated strong support for the new compact should it pass the Legislature. Before it can take effect, the compact also would need to be ratified by Congress and the tribes.

Reporter Samuel Wilson can be reached at 758-4407 or by email at swilson@dailyinterlake.com.