Divisive Montana water rights bill dies in legislature

Apr 12, 2013

An attempt to resolve a long standing debate over water rights between landowners in western Montana and the Confederated Salish and Kootenai Tribes (CSKT) failed to pass the state legislature last week, marking another step in a decades old debate over ownership of water in the region. While many area farmers and ranchers heralded the state’s decision as a victory, others worry about the uncertainty, and possibility of litigation, left in the wake of the failed bill.

Senate Bill 629, had it passed, would have ratified a compact between the government and the tribes, quantifying their rights to water both on and off the reservation. The compact was engineered by the Reserved Water Rights Compact Commission (WRCC), a division of Montana’s department of Natural Resources and Conservation tasked with negotiating such settlements with reservations within the state. The WRCC has developed 15 such compacts with various Montana tribes over the past few decades. On the Flathead reservation, however, the situation is complicated to a degree not seen on other reservations

Under the Hellgate treaty of 1855, which formed the Flathead reservation in Montana’s Mission Valley, the tribes were granted the right to fish in “usual and accustomed places”, regardless of reservation borders, something not found in most other treaty agreements. According to the WRCC, were the issue to arise in court, the tribes’ claim to water would not be confined to reservation borders. Instead, they may be able to exert the right to maintain in stream flows for fish habitat anywhere they can prove historical fishing by tribal members occurred, potentially impacting water right holders across much of the state.

Further complicating the issue, an allotment act in 1910 opened unused portions of the reservation to white settlement, and the Flathead Irrigation Project (FIP), constructed in 1908, brought irrigation water to previously dry farmland. In recent years, the FIP has been managed cooperatively by the tribes and the Flathead Joint Board of Control (FJBC), an entity made up of area irrigators.

Additionally, an ongoing statewide adjudication process by the state water court, begun in 1979, places water rights throughout the state on uncertain footing. According to WRCC administrator Bill Schultz, the proposed compact sought to avoid litigation in water court by quantifying the rights held by the tribes, and striking a balance between their needs and the needs of irrigators.

Response to the compact from the irrigators however, was heavily divided, pitting farmer against farmer. Proponents felt that the compact represented a reasonable compromise, or at least one that would address everyone’s needs and avoid litigation. Detractors, however, argued that the compact represented a complete surrender of privately held water rights to the tribes.

Off the reservation, the compact would have granted the tribes co-ownership of water rights, together with the Montana Department of Fish, Wildlife and Parks on several drainages in western Montana. Opponents of the compact felt that this would grant the tribes far reaching authority to demand water throughout the region, in order to maintain flows for fisheries. Supporters disagreed, arguing that the compact was written expressly to prevent this scenario from happening via litigation by the tribes.

In the midst of this debate, the FJBC in January announced a draft of a new water use plan for irrigators on the FIP. While separate from the state level compact, the new plan was intended to be folded into the compact following its ratification by the legislature.

In response, a group of opponents to both documents known as the Western Montana Water Users Association (WMWUA) filed in federal district court in March to prevent enactment of the water use agreement. While WMWUA leaders declined to comment, court documents show that their suit alleged that the FJBC had no authority to bargain with the tribes, or anyone else, over water rights privately held by individual irrigators. While the district court initially held in their favor, the ruling was almost immediately vacated by the state supreme court.

According to state representative Dan Salomon, private water rights in the region do not include rights to water supplied by the irrigation project. “Nothing is black and white in this issue,” says Salomon. “The irrigation project covers 130,000 acres. You have to be enrolled in the project to get that water. A landowner may have their own water rights, but that’s not a right to get water from the irrigation project.”

“The project has its own sources and water rights,” he adds. “You have so many acres under the project, so you have the right to a quota for a fee. They’re all saying that they have rights, and that’s great, but they haven’t got any water that doesn’t come from those ditches.”

Salomon, who also farms in the Mission Valley, was the initial sponsor of SB 629, which would have ratified the compact. In the face of opposition, however, he abandoned his support of the bill on March 22, choosing instead to sponsor a bill that would have delayed ratification of the compact for two years, to allow more time to educate irrigators regarding its content. Instead of being dropped however, SB 629 was picked up by another representative and presented to the legislature on March 27. Both bills failed to make it out of committee and onto the floor.

“It wasn’t going to pass, it wasn’t going to get through the senate, so I went with plan B,” says Salomon. “I wanted to give everyone a chance to get their questions answered, with the right answers, and instead it got beat by one vote.”

In the wake of the failed compact, it is unclear what the next step will be for the tribes or the irrigators. A bill has been introduced to extend the life of the WRCC, which would otherwise disband this July, but it is uncertain whether the tribes will return to the negotiation table, or choose to go to court. According to tribal representative Rob McDonald, there is still some willingness to negotiate, but the tribes are considering their legal options as well. WM- WUA and other opponents of the compact have said publicly that court may be a preferable alternative to acceptance of the compact.

Salomon, however, warns that a lawsuit could prove disastrous for water users both on the reservation and throughout the state.

“Realistically, if the tribe goes to adjudicate their water in court, that’s going to be ugly, and it’s going to take decades. It’s not going to be tribal against white, it’s going to be neighbor against neighbor, that’s what we were trying to avoid,” he says. “The tribe is going to have the senior right everywhere, because they are federal reserve rights, and they are going to have more water than people here are used to. People who have been irrigating from small streams around Montana for years are going to find that the fish have the inside track.”

Nor, he says, is the issue likely to be limited only to the western portion of the state. “They’re going east of the mountains. If they go (to court) they’re going to the Yellowstone, the Musselshell, and a lot of other valleys too. This is not just western Montana. If they go, they go big.”

“It’s disappointing,” adds Salomon. “We came to an agreement that we thought worked for everybody, but that’s the way it goes.” — Jason Campbell, WLJ Correspondent