Water rights compact up for review

Misperceptions about a proposed water rights compact between the Confederated Salish and Kootenai Tribes, the federal government and the state of Montana may be fueling unnecessary suspicion and concerns, a staff attorney for the commission charged with drafting the compact says.

“Nothing in this settlement allows the tribes to start charging water users for their water,” Jay Weiner said. “It’s to recognize and quantify the tribes’ legal water rights, to get everyone’s water rights decreed... And it does it in a way that protects existing water users, even though those water users are junior to the tribes.”

Weiner says non-irrigation water users outside the Flathead Indian Reservation are “100 percent protected.” According to the terms of the proposed 1,400-page document, the tribes relinquished their right to “make call” against any upstream non-irrigation water right or against groundwater irrigators who use less than 100 gallons per minute.

New off-reservation water uses will continue to be permitted by the Montana Department of Natural Resources and Conservation, Weiner says. The tribes did retain the right to make call against 94 irrigation water rights on the mainstem and north, middle and south forks of the Flathead River, but those rights are only “theoretically subject to call,” he said.

“There is so much water that flows through that system, we can’t see how conflicts would practically arise,” Weiner said. “The Flathead is an incredibly water-rich system.”

Federal water rights

For most people, water rights in Montana are simple to understand — water rights go to a person who is first in time to put the water to beneficial use. If it’s not used over a period of time, a water right can be lost.

But another type of water right exists for federal lands and Indian reservations. Federal reserved water rights were established in a 1908 U.S. Supreme Court case involving the Fort Belknap Indian Reservation.

A quantity of water can be reserved to fulfill a specific federal purpose. The priority date of the water right is the same as the date when the land was withdrawn or when a reservation was created, and those rights cannot be lost through non-use.

The amount of water in a federal reserved right is determined by the Reserved Water Rights Compact Commission created by the Montana Legislature in 1979. The nine members are appointed by the Speaker of the House, the President of the Senate, the Attorney General’s Office and the governor.

The commission was established to negotiate the equitable division of water between the state and its people and both Indian tribes claiming reserved water rights and the federal government claiming non-Indian reserved water rights. The commission sunsets in 2013.

Completed work

Since its inception, the commission has completed 15 compacts, including six with Indian reservations. A compact with the Blackfeet Reservation was passed by the 2009 Legislature after 20 years of negotiations and was introduced to Congress in 2010.

Among the non-Indian compacts is a 1993 compact with the National Park Service, which includes Glacier National Park, and a 2007 compact with the National Forest Service that took 15 years to negotiate. The Park Service compact doesn’t need congressional approval.

Glacier Park’s priority date is May 11, 1910, but its water rights are considered junior to those of the Confederated Salish and Kootenai Tribes and the Blackfeet Tribe. The Park has consumptive water rights totaling 567 acre-feet, of which 246 is for the McDonald Creek area and 166 is for the Many Glacier area.

The Park also has instream water rights to protect fish and aquatic habitat for 121 streams and the North and Middle forks of the Flathead River as well as a reserved water right to maintain lake levels inside the Park.

The Forest Service’s water rights for current and future discrete and dispersed uses date back to 1897 in the case of parts of the Flathead and Kootenai national forests. The Forest Service also has water rights for firefighting and an instream water right for the South Fork of the Flathead Wild and Scenic River upstream of the Hungry Horse Reservoir with a priority date of Oct. 12, 1976.

Other non-Indian compacts exist with the National Bison Range; Yellowstone Park; the Big Hole and Little Bighorn battlefields; Bighorn Canyon National Recreation Area; Upper Missouri Wild and Scenic River; Red Rocks Lakes and other wildlife refuges; and two Department of Agriculture research stations.

Treaty rights

The commission is still negotiating water compacts for the Charles M. Russell National Wildlife Refuge, the Upper Missouri River Breaks National Monument and the Confederated Salish and Kootenai Tribes. The CSKT claims are the oldest handled by the commission, dating back to the 1855 Hellgate Treaty.

The treaty was negotiated between Indian commissioner Isaac Stevens and representatives of the Bitterroot Salish, also known as the Flathead, the Pend d’Oreilles, also known as the Upper Kalispel, and a small band of Kootenai living on the west shore of Flathead Lake that didn’t speak Salish and were culturally distinct from the other two tribes.

Critics say poor translations hampered the treaty’s negotiations, which led to removal of the Flathead from the Bitterroot Valley and established the Flathead Indian Reservation. But rights provided in the treaty to fishing “in all the streams running through or bordering said reservation” is interpreted to mean that, unlike the other water rights compacts, the Confederated Salish and Kootenai Tribes hold water rights outside the reservation.

CSKT Natural Resources Department chairman Clayton Matt says the proposed water rights compact recognizes 10,000 years of tribal residence in western Montana, and cultural and religious practices that will go on for another 10,000 years.

Following negotiations that started in the 1980s and were put on hold pending numerous water rights lawsuits, a proposed CSKT compact was announced on Nov. 8. Representatives from the state and federal governments and the tribes met monthly for eight years to hammer out the terms of the compact.

Next up for the CSKT compact are public meetings across Northwest Montana, including a Nov. 28 meeting at the Kwa TaqNuk Resort in Polson at 9 a.m. Parties to the compact will consider public input, and the commission will meet Dec. 19 to consider whether to submit the proposed compact to the Montana Legislature for approval.

Both the Congress and the tribes must also approve the compact. After that, the compact would be submitted to the Montana Water Court for final approval.