Public opposition to water rights proposal stirs concerns

Confusion and concern about the pending 1,400-page water rights compact for the Confederated Salish-Kootenai Tribes brought over 200 residents together to hear reasons why the proposal should be rejected on Thursday evening at the Red Lion in Kalispell.

The group said the Montana Reserved Water Rights Compact Commission exceeded its authority, violated the Montana Constitution, lacks the necessary environmental and economic impact analysis, fails to secure significant federal water contribution, the federal reserved water rights of the CSKT have not been quantified and the compact documents are not ready for legislative review.

Guest speakers for the evening included hydrologist Dr. Kate Vandemoer, Ph.D., former legislator Derek Skees, and Concerned Citizens of Western Montana representative Terry Backs.

“I have never in my life seen anything like this compact,” Vandemoer said. “There is a lot of misinformation going on…This is not a good deal for them (the CSKT). The ownership is going to be in the hands of the federal government.”

The compact commission includes representatives from the tribes, the state and the federal government. They have been negotiating the compact for more than a decade and their legislative authority to negotiate expires in July.

“The documents do not provide the information necessary for citizens or legislators to understand what it would mean,” Backs said. “It raises more questions than it answers and possibly could create more problems.”

Lake County District Court Judge C. B. McNeil ruled that the irrigation component of the compact is fundamentally and constitutionally flawed earlier this month. See the related article above for the full story.

The irrigation component, aka the Flathead Irrigation Project Agreement or FIP Agreement, is a private agreement between three irrigation districts, the CSKT and the United States.

According to Backs, the CSKT are claiming an annual volume of water three times the volume of Flathead Lake, which is 50 times more than any tribe has ever been awarded.

“The Indians (CSKT members) are not our enemy. They are a pawn in this,” Skees said. “We can’t turn this into an ‘us verses them’ thing. Lake County is at the tip of the spear.”

The Flathead County commissioners are drafting a letter against the proposal that will be forwarded to the compact commission. The commission met in Helena on Tuesday to vote on whether to send the compact agreement to the Legislature for approval. The outcome was not available by press time.

The group argues that the whole compact needs to be turned down, including the water administration known as the Unitary Management Ordinance.

Their first reason stems from the commission exceeding their authority in four different ways:

• Adding off-reservation Stevens Treaty rights to the federal reserved water rights determination;

• Abandoning the state’s statutory responsibility and constitutional duty to protect state water users;

• Establishing the Unitary Management Ordinance was unnecessary and establishes a political board that has the exclusive power to control the use and award water rights on some lands within the reservation boundaries, including non-Indian fee land;

• The commission didn’t acknowledge the open status of the Flathead Indian Reservation and subsequent actions of Congress and federal law opening the reservation to settlement with the establishment of considerable amounts of private fee patent land. Essentially, this means the commission’s system functions as if no private land or established state water uses existed.

“Where is your representation here?” Vandemoer asked. “This is the state overseeing property rights.”

Their second reason was due to alleged violations of the Montana Constitution.

• The compact establishes a new system of water rights administration, UMO, that relinquishes the state’s constitutional duty to, and responsibility for, the administration, control and regulation of water rights.

“What is the purpose?” Vandemoer asked. “He who controls the water, controls the economy, controls the future;”

• It facilitates the taking of property rights through taking of appurtenant water, i.e. the water belonging to the land, which reduces property values, and they allege results in taking through inverse condemnation;

• It fails to recognize and confirm existing uses of water. Instead, they have to register their use with the new water management authority in order to retain their rights.

Their third reason is because the economic and environmental impacts have not been analyzed.

The National Environmental Policy Act requires an Environmental Impact Statement for any major federal action;

• Because the commission is housed within the DNRC it is subject to the Montana Environmental Policy Act, thus requiring an environmental evaluation before the Legislature can make a decision.

“We have to kill this thing in the Legislature,” Skees said. “It will destroy our property values.”

Their fourth reason they allege is because the current compact doesn’t secure significant federal water contributions. Specifically, the compact secures less than half of the amount of water available in the Hungry Horse Reservoir.

Their final reason alleges that the federal reserved water rights have not been quantified and the compact documents are not ready for legislative review. This means they claim the compact does not specify the amount of water that is being claimed as a federal reserved water right, including specific volumes for wetlands, groundwater, lakes and some surface water.

There were a variety of comments and questions from the public including:

• Lakeside’s Jeff Larson commented that it’s important for concerned citizens to contact representatives in the Legislature, and that he didn’t approve of who was selected for the committee.

“We have people on this committee that have a conflict of interest,” Larson said.

• Bigfork’s Gordon Graham asked how many people were on the compact’s commission and how they were selected. Backs explained each of the nine was selected from different sectors.

• Another attendee asked how it was financed. Vandemoer said it’s financed by the federal government, Bonneville Power, and the DNRC; but the CKST stands to gain $700 million to $1.4 billion plus $55 million from the state for pumping costs.