Tribes want water-rights deadline extended

The Confederated Salish and Kootenai Tribes are asking the Montana Legislature to extend the deadline for preliminary water rights decrees that could conflict with the tribal water compact ratified by the state last year.

Passed during last year’s legislative session, the compact was the seventh and final water rights compact approved by the state. If ratified by Congress and the tribes, it would avoid a lengthy litigation process in the state Water Court by providing a negotiated settlement.

However, congressional approval is expected to take years. The state approved the Blackfeet Tribe’s water compact in 2009, but Congress has yet to act on it.

Rep. Ryan Zinke, R-Mont., who sits on the House Natural Resources Committee, has stated he will not push for introduction of the Confederated Salish and Kootenai Tribes’ compact until the Blackfeet compact is ratified.

That means final ratification for the latest compact may not come before June 30, 2020, when the Montana Water Court must issue all initial decrees for state-based water rights claims, including those that are potentially in conflict with the rights assigned in the compact.

Speaking to the Legislature’s Water Policy Interim Committee on Tuesday, tribal attorney John Carter noted those decrees will initiate the objection period, wherein the tribes must object to claims that conflict with their claimed water rights.

“If the tribe has to, while the compact is in front of Congress, prosecute objections against members who have state-based claims, and defend the compact, it renders the support for the compact pretty rocky,” Carter said.

He recommended inserting language into existing law that extends the deadline for those preliminary decrees. That change would require legislative action.

Russ McElyea, the Water Court’s chief judge, disagreed with Carter’s sense of urgency.

“I’m not at the point yet, personally, where I feel like the court is under a lot of pressure to issue these decrees,” he told the committee. “We may get to the point where we feel the court is in between a rock and hard place. I don’t really feel that way right now.”

State Sen. Chas Vincent, R-Libby, sits on the committee and sponsored the bill to ratify the compact at the legislative session last year.

“If we don’t [consider an extension] now, we’re going to be waiting until 2019 before anything could happen,” Vincent said. “I think the court could be put in an untenable position in a couple years if something doesn’t happen.”

McElyea, however, expressed optimism about the ongoing adjudication process, noting earlier in the meeting that the water court processed more preliminary decrees in 2015 than in any previous year.

The court agreed to delay issuing those state-based decrees on the Flathead Indian Reservation until next year, but recently denied a request for another extension by the Blackfeet Tribe.

Part of the court’s consideration, McElyea said, is whether “there’s a good-faith effort by these parties to get the compact through the Congress, and that they’re not just languishing on someone’s desk somewhere.”

Carter argued that ratification has become more complicated since 2011, when Congress banned earmarks and made federal funding for compacts more difficult. He said that no compacts had been congressionally ratified since.

State Assistant Attorney General Jay Weiner countered that a new procedure, outlined in a letter from House Natural Resources Committee Chairman Rob Bishop, R-Utah, attempted to solve that problem in the House, although he agreed that the new process gives the Department of the Interior more say over the process.

The procedural change requires that both the Department of the Interior and the U.S. attorney general sign off on any compacts before he will bring them up for consideration in Congress.

That’s a problem, Carter said, since the Department of the Interior has been one of the main objectors to tribal water compacts.

“[The] Bishop letter gives Interior essentially a veto on tribal water rights compacts moving through Congress,” he said. “Every time they get it up there, Interior pulls it to the side [to] poke at it some more.”

One of the most controversial bills passed during the 2015 legislative session, the compact drew strong opposition from many legislators and their constituents throughout Western Montana.

Rep. Bob Brown, R-Thompson Falls, said Carter’s recommendation to extend the deadline was premature, given a pending lawsuit against the state’s passage of the compact.

Filed by the Flathead Joint Board of Control, the suit alleges that the compact bill effectively granted new legal immunities to the state, requiring a two-thirds vote by the Legislature rather than the simple majority that voted in favor of the compact in April.

A Lake County district judge last month ruled against the state’s motion to dismiss the suit.

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