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The last water rights settlement on tribal land in Montana, still unsettled

Katrin Frye

While water rights lawsuits bop around state and federal courthouses there is technically no legal method of drilling a well on the Flathead Reservation, and hasn’t been since 1996. However, new wells and water uses have been allowed on the reservation of the Confederated Salish and Kootenai Tribes since. Tribal Spokesman Robert McDonald said they didn’t want to halt progress or development, however, he says there isn’t a legally valid way to dig a new well. There’s no governing structure in place so no change of use permits or new well permits.

The Tribes and the state had come to a water use agreement as part of a nearly 2-decades-long-statewide effort to negotiate water rights settlements with all of Montana’s tribes.

This is the last of Montana’s Tribes to reach agreement, the first was reached in 1985 on the Fort Peck Reservation, and the Blackfeet signed an agreement in 2009.

The agreement for the Flathead Indian Reservation did not pass the last legislative session.

“We’re still committed and engaged in the process to hopefully have a compact that can pass through the legislature in 2015. The Tribes are actually upping their efforts to clarify to legislators what is actually in the compact, and help their true understanding of the actual content,” McDonald said.

With the failure in the last session the governor directed negotiations to continue between the states, the Tribes, and the U-S government.

The water rights question on the Flathead Reservation is arguably the most complex in the state. Part of the reason for this is the Flathead Indian Irrigation Project. Both Tribal and non-tribal members use water from the federal irrigation project.

McDonald said multiple lawsuits have been filed over water rights on the reservation. In February, the Tribes filed suit in federal court in the face of these suits.

“The state courts appeared to be engaged in piecemeal adjudication outside the scope of the McCarran Amendment, and we took action to defend our rights,” McDonald said.

Last week state Attorney General Tim Fox’s office took several actions in response. It filed Friend of the Court briefs asking that the court hold off on ruling until a compact is reached, and describing the states view that the Montana Water Court, not federal court, has exclusive jurisdiction. Then, Spokesman John Barnes said the Attorney General asked the District Court to be able to intervene in the lawsuit.

“If permission is given to intervene, our ultimate argument will be that the Montana Water Court is the proper court to make a determination on the competing water rights claims, and a determination, the ultimate ownership of the water rights that are associated with the Flathead Indian Irrigation Project,” Barnes said.

In the lawsuit the Tribes say the Water Court is currently extending its jurisdiction over federal subject matter; ownership of water from the irrigation project. The Tribes are concerned about piecemeal litigation undermining the compact process. Barnes said this is a concern shared by the attorney general’s office.

“We want the overarching water issues to be decided through a compact that both sides can agree to that the legislature will pass. But, if that doesn’t work, then we believe that the Montana Water Court is the appropriate court for these issues to be decided,” Barnes said.

Reaching a compact agreement is a goal shared by the Tribes. Barnes said the situation with the courts now is to “hurry up and wait,” and if a compact agreement is reached, many of the points of various lawsuits may become moot.

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