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Friends, Foes Of Flathead Compact Speak Out

Eric Whitney

 Tonight in Helena Montana’s Reserved Water Rights Commission meets, and is expected to approve a huge water rights settlement between the state, the Confederated Salish and Kootnai Tribes and the federal government.

The main problem that the compact attempts to solve is establishing once and for all how much water the Tribes have rights to. Those rights date back to mid-19th century treaties, and under some interpretations, give the Salish and Kootenai control over streams far outside the current Flathead reservation boundaries, even as far east as the other side of the continental divide.

Melissa Hornbein, an attorney for the state, says, without the compact, there’s a deadline fast approaching to settle how much water belongs to the tribes.

"The tribes are required under state law to file their claims to water rights within the state of Montana, which they have to do by June 30th of 2015," she says. 

The compact is an attempt to settle out of court. Chris Tweeten, chair of the state compact commission, says it offers certainty to the state, the Tribes, and the dozens of irrigators who farm within the reservation’s boundaries.

"It’s almost universal that a negotiated settlement is preferable to rolling the dice on a win or lose situation in front of the court," Tweeten told around 150 people assembled in Ronan Friday.

"Usually these settlements result in a resolution of the claims that provide something for both sides, without giving either side everything that they might ask for in front of the court," he said.

But many irrigators in the Mission Valley don’t like the settlement that’s been negotiated, and don’t trust the state to negotiate on their behalf. Jerry Laskody is on the Flathead Joint Board of Control, an organization of irrigators that asserts it owns the right to the water used by farmers in the Flathead Irrigation Project, not the tribe. 

Credit Eric Whitney
More than 150 people came to two meetings to discuss the compact in Ronan Friday.

"We have heard that the passage of the compact will eliminate the need for litigation," Laskody said Friday. "Ladies and gentlemen, I predict that the passage of this unprecedented compact will unleash a storm of litigation never before seen in Montana."

Laskody doesn’t buy the state compact commission’s claims that the compact actually protects irrigators like him by finally quantifying how much water farmers have a right to, and guaranteeing that farmers won’t be the only victims if there’s a dry year and the Endangered Species Act demands minimum stream flows to protect rare native fish.

Plenty of anti-compact irrigators came to the two public input meetings on it in Ronan Friday, but pro-compact irrigators like Dick Erb also got applause for saying they like the deal.

Erb, who farms near Moiese, says he understands that some irrigators would rather let the tribes constest their water rights claims in court than settle them through the compact, "But, they’ve not spelled out, and I’ve not seen anybody else spell out, what that might mean."

Erb says he’s worried about what might happen if the Tribes won in court, and decided that there needed to be more in-stream flows in local waterways to protect endangered fish.

"That increase in in-stream flows, without the compact, is going to come from project irrigation water," he said. 

Both supporters and opponents of the compact accused the other side of using scare tactics to get people to side with them. And winning public opinion matters, because if the compact commission approves the compact tonight in Helena it then goes to the state legislature as a bill.

Compact Chairman Tweeten told those who came to hear and talk about it Ronan Friday that there’s precedent for these kinds of negotiations working.

"That’s what we’ve been doing in settling the reserved water rights claims in Montana since 1985. And the legislature has ratified every single compact that we’ve reached, including two compacts last session, with the sole and singular exception at the Flathead reservation," Tweeten said.

"People ought to be asking themselves why it is that the compact commission came up with settlements that the legislature was willing to wholeheartedly approve for 20, almost 30 years, and now all of a sudden has sold out the interests of the state of Montana?"

A similar compact failed in the 2013 Montana legislature. Tweeten and supporters say this one is an improvement, but it clearly doesn’t have the support of one faction of irrigators, and last week the Flathead County Commission wrote the legislature a letter urging them to reject it. The compact also asks state lawmakers for $55 million to fund efficiency improvements for the Flathead irrigation project and protections for irrigators.

If the state legislature approves the compact, it still must pass Congress, and be approved by the Confederated Salish and Kootenai Tribes.

Eric Whitney is NPR's Mountain West/Great Plains Bureau Chief, and was the former news director for Montana Public Radio.
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