Water compact forum gets contentious

LIBBY — Tempers flared during a community forum Tuesday evening that was intended to answer questions from the public about the Confederated Salish and Kootenai Tribes’ water compact.

More than 100 people crammed into the seats at the Maki Theatre to discuss the compact with Sen. Chas Vincent, a Republican from Libby, and Rep. Mike Cuffe, a Republican from Eureka. Vincent is the sponsor of a bill in the Montana Legislature that would formalize the water compact, which was crafted by multiple stakeholders during the past two years.

The three-hour policy discussion was interrupted frequently by members of the public who stood up to voice their discontent with the compact. At least three people interrupted Vincent’s answerswith hostile or sarcastic remarks and stomped out of the meeting. One man went so far as to throw down his papers and yell, “I give up,” as he walked away.

Vincent said he was hoping the forum would be a way for his constituents to find out how the compact would affect their water rights, wells and irrigation systems. Instead, some people in the crowd insisted on arguing with him, which distracted from the facts, the senator said.

“I KNEW once I got there and saw who showed up how the meeting was going to go,” Vincent said. “They didn’t want to listen to anything I said. They were there to fight.”

The water compact is arguably the most contentious bill introduced this legislative session. It represents a three-way agreement between the Confederated Salish and Kootenai Tribes, the state of Montana and the federal government to establish tribal water usage rights in Western Montana.

The proposed compact quantifies the tribes’ aboriginal and reserved water rights, which include water usage rights for the Flathead Indian Irrigation Project, in-stream flow and existing uses by the tribes. It also quantifies the tribes’ off-reservation water rights in order to protect their fishery resources. It provides the tribes co-ownership with Montana Fish, Wildlife and Parks of existing water rights for in-stream flow and recreation purposes in the Clark Fork, Bitterroot, Kootenai and Upper Flathead basins.

The compact also establishes a first-of-its-kind administrative authority in the form of a Water Management Board to administer the compact on the reservation. The board would have five voting members, two gubernatorial appointees, two appointed by the Tribal Council and a fifth appointed by the other four members. Should the four be unable to agree upon a fifth member, that person will be appointed by the magistrate of jurisdiction. A sixth, non-voting, member will be appointed by the Department of the Interior.

IN 2013, Vincent helped kill the previous water compact legislation, which he said would have been bad for Lincoln County residents and the state as a whole. But he spent the next two years working with the negotiating team to amend the new compact proposal in a way that eliminated many of his concerns, he said.

Vincent told the crowd he decided to champion the legislation, Senate Bill 262, for two primary reasons: uncertainty and expense.

Without the compact, he said, the tribes’ water claims will require adjudication in the Montana Water Court. According to Vincent, doing so will require every water user in Western Montana to object to the tribes’ claims, even if those users’ claims have been previously adjudicated. He estimated the cost to individual water users to hire representation and adjudicate the claims at approximately $1.5 billion.

Additionally, Vincent said, the likely result is the claims being adjudicated not in Montana’s Water Court, but in federal court. Under federal law, if the Montana Court is unable to address and process the claims in a timely manner, jurisdiction reverts to the federal court system. Should either party in those disputes object to the Water Court’s ruling, the federal appeals court would then have jurisdiction. History and precedence, he said, led him to believe Montana’s water users would not fare well in such litigation.

Opponents of the measure disagreed with Vincent’s assessment.

Steve Curtiss, chairman of the Board of the Glen Lake Irrigation District, said co-ownership of in-stream water rights creates more confusion and potential problems. Curtiss expressed concern that any water rights granted to the tribes through the compact will be held in trust by the federal government. The government, he said, has a track record of mismanagement.

“WHY WOULD we want to give the federal government water rights that belong to the people of the state of Montana,” he asked. “People have had it with the continued taking of their rights and privileges.”

Vincent, however, said that uncertainty is a good reason to adopt the compact and quantify the rights of various water users. If the compact legislation fails, the tribes’ water claims would be litigated in federal court, Vincent said. If that happens, the state and its residents could lose more of their water rights than what would be granted to the tribes in the compact.

“I’ve spoken to many attorneys on this issue, and they say the odds are better than 50 percent that we will lose in federal court,” Vincent said. “The compact, on the other hand, would not impact existing water rights in Lincoln County, and you would still have the right to adjudicate. You don’t lose that right.”

Curtiss said it’s worth the risk of taking the issue to court for resolution.

“This compact has way too many things hanging in the balance and leaves too many questions unanswered to sign on to a forever document,” he said. “The people of this country have fought a lot of wars on principle, and this is a principle I’ll fight for.”

REP. MIKE CUFFE of Eureka agrees with Curtiss and told the crowd he is a no vote when the House takes up the measure.

“I question whether it is right to give up the fight,” Cuffe said.

Cuffe said he and Vincent agree on the factual basis of the arguments, but they come to different conclusions. For Vincent, the decision is to make an agreement that mitigates the potential damage from costly and long-term litigation. For Cuffe, the decision is to fight and, as he said, “let the chips fall as they may.”

Vincent’s water-compact legislation passed the state Senate on a 31-19 vote last week. It now heads to the state House.

Cuffe refused to speculate on the odds of the bill passing the House.

“I’ve had people tell me it will be close and pass. I’ve had people tell me it will be close and fail,” he said. “I just don’t have a strong sense of where this one’s going.”

What is certain is the emotional and divisive air surrounding the compact. Most observers also agreed after Tuesday’s forum that few, if any, changed their minds on the subject as a result of the discussion.

At one point the tension rose to such a peak that Cuffe stepped in to calm things down. “A lot of folks came to argue rather than listen,” he said. “There were things said there that were just not deserved. Chas wanted to meet with his constituents and explain himself, and I think he did.”

Henline is a reporter for The Western News in Libby.