Water Compact: Public responds to revised proposal

A public meeting to discuss the revised draft of the water rights compact for the Confederated Salish and Kootenai Tribes saw mixed reactions from about 150 citizens gathered at the Hilton Garden Inn in Kalispell on Saturday morning.

The meeting was held by the Montana Reserved Water Rights Compact Commission, and opened with a presentation by state attorney Melissa Hornbein, summarizing the history of the proposed agreement and the most recent changes to it.

The proposed compact would quantify the tribes' water rights in Western Montana and obligate the state to spend $55 million to improve the Flathead Indian Irrigation Project. It is the result of more than 10 years of negotiations among the state, the tribes and the federal government.

The issue of the tribes' water rights goes back to the 1855 Hellgate Treaty, which formally created the Flathead Indian Reservation and gave the tribes “the exclusive right” to harvest fish in streams running through and bordering on the reservation. In 1908, the Supreme Court interpreted such treaties as giving tribes the ability to claim seniority over the water rights of non-tribal water users on the reservation.

According to Hornbein, the proposed compact would shield non-tribal users from potentially far-reaching impacts to their water rights. Should the tribes pursue their water rights in court, they could argue that their historic use of water extends far beyond the established boundaries of the reservation, reaching throughout much or all of western Montana. The compact attempts to limit that possibility by officially confining the tribes' water rights to maintaining the in-stream water flows necessary for sustaining certain historic uses, primarily fish habitat.

However, many attendees of the meeting who spoke against the revised compact rejected that premise and encouraged the board to reject the new compact in favor of the tribe settling their rights in a state water adjudication court.

Bill Myers of Bigfork pointed to the Judith River Treaty of 1856 as having precedence over the Hellgate Treaty, which did not go into effect until 1859. He quoted the treaty as declaring that US citizens “shall use materials of every description found in Indian Country.”

While commission chairman Chris Tweeten agreed with the timeline, he said the decision to base the compact on the Hellgate Treaty was based on the state's best interpretation of the legal framework surrounding the tribes' water rights.

Flathead County Commissioner Phil Mitchell echoed Myers' point, while also condemning the agreement as a violation of federal and state constitutions. He stated that Article IX of the state constitution specifically delegates the right to waters in the state to the people of the state.

However, many comments related to the new language in the compact, which resulted from the failure of the previous compact to pass through the state Legislature in 2013. The state reopened negotiations last year in an effort to address concerns with the way the agreement allocated water rights to the tribe's in-stream flows and the Flathead Indian Irrigation Project.

“Two-thirds to three-quarters of this agreement have stayed the same,” Hornbein noted, adding that the changes were limited solely to conditions for allocating water between the two groups.

Compact changes

One of those changes centered on how the former agreement included specific allocations of water for individual farms within the Flathead Indian Irrigation project. In the revised version, irrigators would receive water allowances based on historic use, with avenues established for evaluating and adjusting those levels to meet their needs.

The new compact increases the amount of irrigated acreage used to estimate irrigators' maximum needs by 5,000 acres, based on new studies. That puts the new number at 135,000 acres, based on an estimate that irrigated acreage has reached 132,000 acres in the past.

Former state Sen. Verdell Jackson, a leading opponent of the compact, challenged that language, saying the farm deliveries did not go far enough.

“As near as I can figure, with the compact the irrigators are already cut somewhere between 50 and 75 percent, with the idea that they really don't need all the water they were given in the past,” Jackson said.

In her presentation, Hornbein stressed that more discretion had been given to the project operator, but admitted the modeling used to determine those irrigation needs had limitations.

“Our conclusion was [that] like any model it carries uncertainty as to whether the amounts would actually be sufficient to ensure historic farm deliveries,” she said. “There is an ability to bring more water into the project through a pumping fund the state has agreed to committing within the project.”

That $30 million fund would provide an investment return to pay for the costs of pumping additional water when needed for in-stream flows. The agreement increases the total water available for pumping to 65,000 acre-feet.

The state would also contribute $4 million for stock water mitigation, and another $4 million for on-farm improvements to increase the efficiency of irrigation. Another $13 million would go to habitat conservation.

“The whole settlement is predicated on the idea of increases in efficiency to the project yielding more water for in-stream flows in a way that protects irrigation deliveries but also increases water for in-stream flows for deliveries.”

Several of the opposition speakers pointed out the short amount of time given to the public to review the changes. The draft was made available on the commission's website late Wednesday, less than two days before public meetings began Friday.

“I find it sad that this board chose to send out the new compact in the last 48 hours,” Mitchell said. “To send the document out and have meetings within a day or two of something that's this important . . . I'm sorry, but you should be ashamed.”

“I resent the fact that I only got this last night. It smacks of what happened last time: Cram it down our throats,” said Jackson.

After the meeting, Arne Wick, who supervises the state's compact section within the natural resources department, said the draft was made available as soon as the final changes were completed.

“These changes were developed publicly over the course of negotiations,” he added. “There really wasn't anything in there that wasn't in the negotiations.”

Speakers’ concerns

Chris Amyes of Kalispell was one several speakers concerned with the ability of the tribes to “call” on other users' water during times of water shortages. A “call” is a legal right of a more senior water user to take another user's water. The tribe's water rights theoretically date back to the establishment of the reservation as outlined in the Hellgate Treaty, meaning they could potentially take water from non-tribal users subject to the agreement.  

“Can you categorically state that as an off-reservation user and taxpayer, that anything the management board does will not have adverse effects on my use of water or the price of my water?” Amyes asked.

“Yes,” answered Tweeten. “Domestic water rights are not subject to call by the tribe . . . The tribes have in the compact specifically waived the right to place a call on domestic water rights.”

Some people, including Joe McDonald from Ronan, went to the microphone to offer praise to the commission's work.

“I really want to complement the commission for the work that you've done,” McDonald said. “It looks like you've answered everything that could possibly be answered.”

Tribal council member Patty Stevens also delivered a message of support to the commission.

“As a tribal member, before getting elected, I would have chose to litigate to the end, because that's the importance of the water,” she said. “But as an elected official, … I don't look at it as our water. I want to make sure that … it flows when I'm gone, and for everybody's use, not just mine.”

Kristin Omvig, an attorney representing the Flathead Joint Board of Control, cited a resolution passed by the joint board that panned both the legal justification and hydrological modeling techniques used to determine the tribes' and irrigators' water needs.

“Based upon our review of the compact as it is presented to you today, it appears that those concerns have not been addressed adequately,” Omvig said.

Those modeling concerns were echoed by Jerry O'Neil, a former state senator and representative.

“The way we'd figure that out would be to look at the quantification database you're coming up with, and I have a problem with that fact that you're doing that in secret,” O'Neil said.

Hornbein responded that the technical working group had determined the in-stream flow numbers to be a “significant compromise for fisheries' needs,” and that irrigation needs had been studied first.

A final public meeting to discuss the compact will be held Monday at 7 p.m. in Helena at the Great Northern Hotel. Following another public comment period, the full nine-member commission will hold a final discussion of the compact and vote on it.

If approved, the compact will be submitted to the state Legislature in bill form. If it is approved by the state, the compact must then be ratified both by Congress and the tribes. Finally, the compact must be incorporated into a decree of the Montana Water Court in order to take effect.

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