Some clarifications on the proposed CSKT water compact

Verdell Jackson’s analysis of the Confederated Salish and Kootenai Tribes proposed water compact is flawed.  Verdell does not get to decide what the tribe does and does not get. That will either be decided by accepting the negotiated compact or going through decades of litigation that will impact half of the state of Montana.

At the present time, the compact sits in limbo. If ratified by the legislature, it protects all existing water users on and off the reservation. It secures for use in the state of Montana 90,000 acre feet out of Hungry Horse Reservoir. It settles all the tribes claims and is final in its decree.

In the compact, the water rights of the tribe are very limited in scope. For instance, their water right on the Kootenai River would be limited to a right below the FERC license for Libby Dam. That means the tribe would have no right to call their senior right as long as Libby Dam exists.

They also have a right on the main stem of the Flathead River. There has not been an instance in the last 100 years that the senior right would have been exercised, as indeed Verdell has said there is not a water shortage. Irrigators are protected and there is no authority to call any other water use.

The tribe has been given no off-the-reservation authority. On the reservation, all water users are protected. All water uses off the Flathead Indian Irrigation Project will go through the state water adjudication in the same manner as every other state-based water user.

As for the irrigators who utilize the project, they are protected in a number of ways. All water users on the project will be given a little over one foot. This is more than the current quota for 75 percent of the project water users. For those who need more water, they will go through a three to five year water measurement process to prove their quota (the water must be used efficiently). It will be 10 to 20 years before the current system would see any change. No rights to use the water would be lost.

Next, Verdell tackles the Unitary Management Ordinance. He claims there is no need to duplicate what the state of Montana is already doing. The Flathead Indian Reservation’s water is so intertwined with tribal and non tribal lands that a dual process would be expensive and duplicative, as every water right filed by a non-tribal member would likely be challenged by the tribe.

The state’s position is that it would actually be a less expensive process, as the cost is equally shared by the state and the tribe, and that the state would utilize existing state personnel to do technical work.

Verdell also goes on to say that the Unitary Management board would likely be controlled by the tribe, another incorrect assumption. The board would consist of six members — one non-voting member appointed by the federal government, two appointed by the governor in consultation with irrigators, two appointed by the tribe and one appointed by the other four. The rules mirror those that all water users in the state are currently subject to.

If there is no settlement, the tribe will file rights with a time immemorial priority date for instream flows on and off the reservation. On the reservation, it will also file on water with a priority date of 1855. They won’t win all the battles, but since they are the senior filer, every state-based water user in the west half of Montana will have to object to their filing, and this will be a decades long and millions of dollars expensive process.

Susan Lake lives in Ronan.