Legislators debate Confederated Salish-Kootenai Tribes Water Compact

A water allocation proposal among the state of Montana, the Confederated Salish and Kootenai Tribes and the federal government was heard for the first time in the Montana Legislature Monday.

Senate Bill 262 would delineate certain water rights to the tribes on the Flathead Indian Reservation while the oversight of an irrigation project that many non-tribal farmers and ranchers in northwestern Montana rely on would remain in the hands of its current operator.

The Flathead Reservation is last of seven American Indian tribal reservations in Montana to settle with the state and federal government on rights to water use. At the heart of the issue is the most water-saturated reservation in the state and a federal treaty granting the tribes off-reservation water rights to hunt and fish.

In the negotiated plan, introduced by Republican Sen. Chas Vincent of Libby in the Senate Judiciary Committee, the tribes have agreed not to rein in any non-irrigation right on or off of the Flathead Indian Reservation.

“All municipal, domestic, commercial and industrial uses are completely, 100 percent protected,” said Melissa Hornbein, staff attorney for the Department of Natural Resources and Conservation’s compact commission.

Agricultural water use is more complicated, she said, but also protected in the agreement.

Under the proposal, water flowing to the Flathead Indian Irrigation Project would be protected as it currently exists. In-stream flows to the project would be gradually increased over time through infrastructure rehabilitation funded by the state.

During dry periods, some tribal in-stream flows would be turned into the irrigation project to meet farming and ranching needs.

All other types of in-stream flows would be capped at levels that accommodate existing agricultural uses.

The bill is a renegotiated version of a proposed compact that failed during the 2013 Legislature. One of the biggest compromises since last session has been to allow existing claims for irrigation water to go forward.

Confederated Salish and Kootenai Tribes Chairman Vernon Finley and the government’s attorney, Rhonda Swaney, said the tribes conceded numerous water use rights in the agreement.

“This negotiated settlement represents great compromise on the part of the tribes,” Swaney said. “If you’re rejecting it and there’s no compromise, we’re going to have to file to try to protect what we believe is the full extent of our rights.”

Supporters and opponents of the bill said that if it is not ratified the resulting litigation process to settle the tribal and irrigation claims would span years and incur major costs for all parties.

Hornbein and Cory Swanson, another attorney who has headed research and negotiations for the state, said courts will likely favor the tribes as they have in the past.

“Even if they win,” Swanson said of farmers and ranchers, “they’ll never have an agreement that gives them a guarantee of irrigation water like the one sitting before you today.”

Greg Hinkle, former state lawmaker from Thompson Falls, said in his opposition to the measure that such reasoning is undemocratic.

“In my opinion, this amounts to legislation by intimidation,” Hinkle said.

Opponents argued that the compact would violate various provisions of the Montana and U.S. Constitutions, including equal protection clauses and provisions prohibiting water users from seeking Fifth Amendment protections.

Supporters hold that expectations of water usage on the reservation differ from other state land and said the compact specifically bars land grabs.

Lawmakers have the ability to amend the bill, but tribal and state mediators greatly discouraged such action, saying it would jeopardize the negotiation.

The committee is expected to vote on the bill next week. It must pass out of the Senate as a whole by Feb. 27 to stay alive.