Negotiating parties focus on the Management Ordinance at latest session

By B.L. Azure

Lincoln County Commissioner Tony Berget urged the water rights negotiators to consider not including creeks that serve Lincoln County towns of Libby, Eureka and Troy as part of the CSKT’s off-reservation quantified water rights. (B.L. Azure photo)

POLSON — The Confederated Salish and Kootenai Tribes, the United States and the State of Montana met last week in a water compact negotiation session aimed at hammering out a federal reserved water right for the Flathead Nation. The parties are aiming to come up with a finalized compact to present to the 2013 Montana Legislature this upcoming January.

The lion’s share of the session was taken by attorney for the Montana Reserved Water Rights Compact Commission, Jay Weiner. He gave an update on the draft Unitary Administration and Management Ordinance (UAMO) that will guide water use on the Flathead Indian Reservation.

The UAMO are the “rules of the road” for the management of the surface and ground water on the Flathead Reservation, Weiner said. The ordinance would be used by the proposed five-person water board commission that will have the administrative authority to enforce the ordinance.

Although it is presently in draft form, the document when finalized will be in effect when a negotiated compact is accepted by the three negotiating parties. The compact then has to pass muster of the Montana Legislature, Montana Water Court and the U.S. Congress.

Weiner said enforcement of State water laws is something the State does not do well at the present time due to the many entities involved and the morass that results from so many hands in the bucket.

Presently, he said that enforcement is a user-driven process of complaints — the State does not go out in the field seeking violators.

Federal water rights negotiator Duane Mecham discussed the proposed authority of the water board on the Flathead Reservation. Tribal Council Vice-Chair Carole Lankford, member of the Tribes negotiating team takes it in. (B.L. Azure photo)

“We prefer informal resolutions that are worked out among neighbors and not necessarily bring them before the water court,” Weiner said. “The preliminary step we emphasize is group resolution, done quickly as possible without the need of a lawyer.”

That is what he hopes will occur on the Flathead Reservation. However, if that fails to resolve conflicts then protesting water users can formally take their cases to the proposed water management board.

However the water management board is not the final enforceable ruling on disputes, Weiner said. “People can appeal in a court of competent jurisdiction,” Weiner said. The process is articulated in the draft ordinance.

The proposed make up of the five-person management board would be two representatives appointed by the CSKT, two appointed by the State and potentially one from the federal government.

However, federal negotiator Duane Mecham has indicated that federal authorities would rather not be a part of the board. “The United States is not seeking to be a water administrator on the Flathead Reservation,” he said.

Weiner went over several recent changes in and additions to the draft UAMO related to its management and enforcement powers.

The new sections are related: to protected, and appropriated wetlands water rights; various definitions; groundwater management; qualifications of water management board members; board enforcements powers, fining authority, and suit immunity; mitigation measures; and, Flathead system compact water, among others.

In the comment period Lincoln County Commissioner Tony Berget asked the negotiators to not include O’Brian Creek that serves water system of Troy, Grave Creek that serves Eureka and Libby Creek that serves Libby in the quantified off-Flathead Reservation water claims of the CSKT.

On the issue of Secretarial Water Rights originally meant for members of the Flathead Nation but some now in the hands of non-Indians, Meacham said they would go through the adjudication process and the court would have the final say on the issue.

Elder Pat Pierre addressed the water rights negotiators and the public on the in-the-works water compact for the Flathead Nation. (B.L. Azure photo)

Weiner said that some of the Secretarial Water Rights are delivered via the Flathead Indian Irrigation Project and that is a quandary from the State’s perspective.

Pend d’Oreille Elder and Elder representative on the CSKT negotiation team Pat Pierre said he was concerned about the potential of the water compact negotiations failing and then being litigated in court.

“My fellow elders tell me that every time we negotiate, we lose,” Pierre said, adding that there appears to be enough water to satisfy the Tribes and State needs. However, the final compact must be in favor of the Tribes claim. “It would be a miracle if we come up with a compact that is agreeable to all.”

Pierre said the upcoming 2013 legislative session is driving the process now and he urged caution against surrendering to a incomplete or short sighted process.

The next negotiation session is scheduled for Wednesday, April 25, tentatively in Polson.

To review the draft Unitary Administrative and Management Ordinance, click here to download the PDF.