Water rights by adjudication or CSKT compact?
In the May 26 issue of the Daily Inter Lake, Dick Erb posed a direct challenge to me. He wrote, “I have yet to find a compact opponent, including for example the outspoken critic, Verdell Jackson, willing or able to explain why Water Court adjudication would provide more water with greater security than provided under the compact?”
Mr. Erb: I am willing and able, but extremely limited on space, to explain this complicated matter. It appears that, by virtue of your membership on the Flathead Joint Board of Control you are assuming expertise in this matter by osmosis. Your unpopular minority position on that board, it seems, was to avoid adjudication by giving all of the water rights on and off the reservation to the tribal government via the Confederated Salish and Kootenai water compact. I don’t believe that you have any understanding of adjudication or the compact.
If you examine the 1,500-page compact you will find no security for the reservation irrigators. As you work through the water abstracts you will find at least 50 percent of the irrigation water available in past years is transferred by the compact to “in-stream flow.” There are also off-reservation water rights in the compact which negatively affect 11 counties (330,000 citizens) in Western Montana. Their properties will be reduced in value when the compact grants in-stream flow water rights on the main rivers to the tribes because of the uncertainty of having adequate water. The off-reservation irrigators still have their state based water rights, but there is no security because they can be shut down by the tribes when the stream flow is lower than their in-stream water right.
Conversely, adjudication has taken place in most of Montana. Former water judge Bruce Loble spent 23 years examining 39,100 water rights. Last time I talked to him he said it is a fair and equitable process and in most cases it is done without a lawyer. The Montana Water Court would sort and manage the filed off-reservation water rights based on their degree of validity. Most of them, if not all of them, will not be legally recognized because they have no basis in the Hell Gate Treaty or state/federal constitutions. There are several treaties that give Indians access to hunting and fishing on aboriginal land. But none of these tribes have been given off-reservation water rights in a compact or in court. Likewise the Confederated Salish and Kootenai will not succeed with their threat to file thousands of water rights throughout Montana if they do not get their compact. The 1855 Hell Gate Treaty for the Salish and Kootenai tribes secured the “right to take fish in common with the citizens of the territory.” Note that this is NOT A WATER RIGHT and the word water is not in the treaty. This is an access right which showed up in some treaties and was given only to tribes known to be peaceful to allow them to leave the reservation to fish and hunt. This statement can’t logically be interpreted to give the tribes off-reservation water rights.
Mr. Erb, a good compact does not have winners and losers. The Blackfeet Compact which I voted for when I was a state representative did not take water away from anyone. Millions of dollars are spent on infrastructure to use water more efficiently and to make more water available to everyone. Another example is the Nez Perce Tribe’s negotiation with the state of Idaho that has been held up as a negotiation that resulted in off-reservation water rights. However, unlike the Salish and Kootenai compact, the Nez Perce Tribe did not get water rights. Idaho was not willing to breach their state sovereignty by giving control or ownership of water to the Nez Perce Tribe. Idaho’s Department of Water Resources maintained ownership and control by establishing a minimum instream flow water right for “springs and fountains” off the reservation with a priority date of 2007 while protecting all present and some future uses.
No tribe has been given a mass transfer of water rights from people who have owned their water rights almost 100 years because we live in a constitutional republic that values our history and laws. Both the federal and state constitutions have due process protections for “life, liberty and property.” If the 1,500-page Salish and Kootenai compact somehow survives the existing court challenges, Mr. Erb, it will be the beginning of lawsuits not the end, as irrigators and private property owners realize what they have lost.
Jackson, a former Montana senator, is a resident of the Lower Valley.