MTPR

'Concerned Citizens' Propose Alternative To CSKT Water Compact

Nov 28, 2018

A group of self-described concerned citizens are proposing an alternative to the Confederated Salish and Kootenai Tribal Water Compact to settle water rights claims on and around the Flathead Reservation.

The state Legislature narrowly passed the CSKT Compact in 2015. It now awaits federal ratification.

Without a compact, some 10,000 tribal water claims extending farther east than Billings would need to be adjudicated individually.

Kate Vandemoer is one of the drafters of the alternative, which they’re calling the People’s Compact.

"Both the federal government and the state failed, so it's up to the people."

People’s Compact supporters argue the version passed by the Montana Legislature oversteps legal precedent by securing tribal water rights outside reservation boundaries that predate every other claim in the state. They say it doesn’t quantify the total amount of water to be reserved for the tribes, fails to protect water rights of non-tribal members on the reservation and costs too much.

They say their version would quantify tribal water rights at 508,000 acre-feet with an 1855 priority date and secure $775 million in settlement funds. They want the federal government to pay out those funds directly to tribal members, with a portion earmarked to develop tribal water rights and rehabilitate the Flathead Irrigation Project.

The People’s Compact is currently undergoing legal review and is not available to the public.

Rob McDonald is the communications director for the Confederated Salish and Kootenai Tribes.

"No one has approached the Tribes for any input on any of this."

He says the Tribes continue to stand by the version passed by the legislature.

People’s Compact supporter Kate Vandemoer and a group of Flathead Republican legislators made their case for the People’s Compact at an information meeting hosted by the Last Chance Patriots in Polson Tuesday night attended by about 60 people.

Sen. Albert Olszewski told the crowd that Flathead legislators’ attempts to amend the CSKT Compact at the state level back in 2015 fell on deaf ears.

"We were not at the table. We were on the table, right? I mean that’s basically how it felt."

Olszewski has agreed to carry the framework of the People’s Compact as part of a petition for redress of grievances to members of Montana’s federal Congressional delegation so it can serve as an alternative to a version Democrat Sen. Jon Tester introduced in the U.S. Senate in 2016. Tribal water compacts need ratification at the state, federal and tribal level to finalize negotiations and secure funding.

The state’s version included a clause that allows the state or the tribes to back out if federal Congress hasn’t ratified it within five years. That five-year deadline expires in April.

People’s Compact supporters, like Kate Vandemoer, argue what they’re proposing is the last chance to address what they see as flaws in both the version passed by the state and Sen. Tester’s bill.

"This is our last chance to fix this," Vandemoer says. "If this happens what do you think all the other tribes are going to do? What about all the other tribes in the United States? Are you going to have to pay someone to not file a water right? This is how serious this is. This is why we're here tonight. This is our last chance to fix this."

But some of the arguments made at Tuesday’s meeting bear scrutiny.

Melissa Hornbein was the Montana Reserved Water Rights Commission staff attorney who worked on the CSKT Water Compact. Her views here are her own.

Hornbein says there are a number of reasons why the CSKT Compact differs from the six other tribal water compacts in Montana, because the Flathead Reservation was established under a different type of treaty.

"Therefore they're the only tribes in the state who have that treaty-based language of the right to take fish in all usual and accustomed places both on and off the reservation."

Hornbein says western tribes established under these treaties have successfully defended their claims to off-reservation water rights at the state and federal level.

She says the CSKT Compact does quantify the Tribe’s water rights, just not in a single number as the People’s Compact would, and its high price tag -- $2.3 billion in Tester’s bill -- would fund extensive upgrades to the Flathead Irrigation Project. She says these efficiency upgrades would balance out any decrease in water allotment to irrigators over time.

Hornbein agrees with supporters of the People’s Compact that the state legislature’s negotiations left everyone feeling like they had lost some of what they felt entitled to. But she stands by the CSKT Compact.

"There was a lot of really widespread understanding of the importance of having a negotiated settlement even if not everyone was happy with the result. And frankly, that's the nature of a negotiated settlement."

Tester’s version of the CSKT Water Compact expires at the end of this Congressional session.