State Rep. Mike Cuffe asks on water rights: Whose water is it anyway?
Letter to the Editor,
“Whose water is it?” The water in question is the stream water flowing down all drainages in Northwest Montana. The Confederated Kootenai Salish Tribe seeks co-ownership with Montana Fish, Wildlife and Parks of minimum stream flows based on the Hellgate Treaty of 1855 and court decisions.
Many of us in Lincoln County have great concerns and little knowledge of what is going on. This may be ancient history to the tribes, but it is hot headline news to most of us.
The Montana Reserved Water Rights Compact Commission was established in 1979 to resolve conflicts among state and federal agencies and tribes over water rights.
That commission, already operating on extended time, is set to dissolve in July of 2013. Compacts reached by the commission must be approved by the Montana Legislature, the tribal government and U.S. Congress. Compacts have been approved for the other six reservations in Montana.
The Kootenai Salish treaty is the only treaty in Montana promising off reservation fishing rights in their usual and accustomed places in 1855. Tribal negotiators say that means the drainages of several rivers including the Bitterroot southwest of Missoula, the Blackfoot and Clearwater northeast of Missoula, and the Clark Fork to the mountains above Butte as well as Flathead Lake and Lincoln County’s Kootenai River Basin including Fisher and Yaak Rivers and much of the Bull River Drainage going to the Clark Fork.
Regarding the Kootenai River Basin, the Reserved Water Rights Compact Commission, after consulting with state FWP, proposed minimum flow rates on only five Lincoln County streams, including Grave Creek which is the headwaters for Glen Lake Irrigation District. Other streams were Libby Creek, Callahan Creek, Keeler Creek and O’Brien Creek. Local officials immediately expressed opposition to the proposal.
Although I am not a member of the commission, I spoke at the meeting in Pablo on April 25. I told them any agreement must be fair to all including the citizens of Lincoln County, that it must be understandable, and that it must be available for study prior to the hectic closing weeks of the next legislative session. I told them to expect a no vote by Legislators if it is too complicated, too late for thorough vetting or unfair to Lincoln County folks.
Sen. Chas Vincent may have said it best: “As is, this thing is DOA in the Legislature.” Rep. Jerry Bennett agrees: “Dead on arrival.”
The May 30 meeting of the Water Rights Compact Commission consisted of the tribe’s counter-proposal. The tribe proposes to add three more major Lincoln County streams and basins, namely the Fisher River, Yaak River and Lake Creek plus a number of tributaries of the Bull River in southwestern Lincoln County which involves copper mining country.
In addition, the counter proposal would suspend any call on water rights on the Kootenai River Drainage during the existence of Libby Dam and operation of the dam according to current agreements in place.
It also calls for a Habitat Enhancement Fund for the Tribes to secure other off-reservation water rights in lieu of watersheds where existing uses of water are extensive and would be highly disruptive to current water users.
The last commission meeting was in Polson on June 27. At my request, the commission agreed to meet legislators, Lincoln County officials and interested people a half hour later. The Western News reported on this meeting.
I have talked with various commission members, other legislators and a few attorneys and spent several hours reviewing the 1908 Winters case which is the foundation of much Indian water rights law.
Several other cases are also referenced including one in Washington from the 1980s, which ruled that Indian fishing rights also include environmental protections by implication. I question how that turns into co-ownership of water rights, especially when environmental protections are already in place. I question how senior water rights dating to the 1890s of GLID irrigation district suddenly become junior to fishing rights when there are so many streams to fish.
— State Rep. Mike Cuffe
House District 2