Against water compact: The bill is a win/win for one side

Compacts with six other tribes have been successfully negotiated and approved since 1979 when Montana set up the Montana Water Court and paved the way for adjudication of Montana’s water. The most recent was with the Blackfeet Tribe in 2009. Last to be considered is the proposal developed by the Montana Reserved Water Rights Commission between Montana, the Salish and Kootenai Tribes and the United States government.

The Salish and Kootenai compact was rejected in 2013 because water users objected to provisions in the 1,500 page document which they believed threatened their water and property rights. Lincoln County Sen. Chas Vincent was one who said he could not support that compact unless some changes were made. Today, he not only supports it, but is chief sponsor of the enabling legislation. As of the March 3 meeting in Libby, he was unable or unwilling to inform his constituents of the changes he said were effected to justify his support for the 2015 version. On March 5, he e-mailed pages of information to some who are still struggling to evaluate his response.

Unlike previous compacts, the Salish and Kootenai compact is precedent-setting. The most objectionable provisions of 2013 are still there: the Unitary Management Ordinance, the taking of irrigator water rights,  and the off-reservation water rights. Previous tribal compacts deal with water on the reservations exclusively. Previous tribal compacts do not replace existing irrigation water rights with nebulous delivery entitlements, and previous compacts give no appointed five-member boards exclusive jurisdiction over all new appropriation and water-use changes on their respective reservations. No other compact exempts the tribes from compliance with established state laws.

This compact is precedent-setting in that it cedes rights to water arising at the headwaters of Western Montana off-reservation streams to the tribes. This is certain to affect water use in 11 counties which are not on the reservation, as tribes move to exercise those rights. Lincoln County is one, and tributaries of the Kootenai could well see changes as priorities shift and the tribes are able to use this new in-stream flow authority to pre-empt other beneficial uses.

There is another major difference. Other tribal compacts reflect the amount of water necessary to provide for the uses on their respective reservations. The Salish/Kootenai have never complied with that obligatory quantification requirement met by other water users. Instead of established rights and use needs, they are being given control of all water on the reservation and those who have established their rights through the Montana Water Court find their interests subordinate to the discretion of the five-member reservation board.

The Unitary Administration and Management Board created by the water compact is to be given exclusive jurisdiction over virtually all water on their reservation. Its five members, two appointed by the Tribal Council, two by the governor and one by the other four members, will have authority over all new appropriations and changes in water uses. They will be exempt from compliance with certain state water laws currently administered by the Montana Department of Natural Resources and Conservation, and the board members are to be given immunity from suit for damages arising from discharge of their official duties. Indians and non-Indian water users will not be treated the same.

Passage of SB 262 will require Montana to pay the tribes $55 million for water upgrades on the reservation and though not part of the compact agreement, the federal government is expected to pay the tribes $1.2 billion as was announced by the Reserved Water Compact Commission Chairman in 2012 and 2013 — again verified by the tribes in January 2015. In addition the tribes are being ceded control of virtually all water in the Clark Fork and Kootenai Basins. It is a win/win for the tribes, but that does not mean it is a good thing for the rest of Montana’s water users and the taxpayers.

A massive multimillion dollar advertising campaign in favor of this compact has been bombarding the airwaves and social media for the past several months. Ostensibly it is being paid for by a group out of Billings calling themselves “The Farmers and Ranchers for Montana.” Where, though, are they getting the thousands of dollars for the ads? This is the kind of obscene money spent during major elections and not seen otherwise. This fact, alone, should cause Montanans to look at this issue with a very critical eye. That the bill can in no way be amended by legislators should make them, too, wary of ramifications.

To complete Montana’s water adjudication, a compact is necessary with all seven tribes, so one must be negotiated with the Salish and Kootenai. This one is not the right one and the manner in which a revised version of the rejected 2013 Compact has been foisted upon Montanans in late January and rushed through the Senate early in February is wrong-headed. A 1,400-page compact to which no duly elected House or Senate member can make amendments or changes is ludicrous. I, and the vast majority of folks in Lincoln County, believe this bill needs to be killed in the House, in order for wiser heads to author a document that will meet the justifiable needs of the tribes and not rob other Montanans of their constitutional rights. Forever is a long time to live with those consequences.

Aubyn Curtiss, a Fortine Republican, is a longtime former legislator.