PABLO — It’s about time. In 1979 the Montana Legislature established the Montana Reserved Water Rights Compact Commission (RWRCC) to negotiate Federal Reserved Water Rights settlements with Montana Tribal Nations and federal agencies. It was anticipated that those Water Rights Compacts would be completed in the 1990s. However, the Mark Twain insightful observation that “Whiskey is for drinking, water is for fighting” came to fore and that time anticipation of settlements was stretched out once the water war began.
In the early 1990s there was a public meeting in the Florence Hotel in Missoula related to the Confederated Salish and Kootenai Tribes Federal Reserved Water Rights Compact that was in its post incubation stage. At that time RWRCC Chairman Chris Tweeten, an attorney, said it could take 20 years or longer to settle the CSKT water rights compact.
Tweeten was right. What followed his prediction was many years of a turbulent waters tug of war between opponents and proponents of the CSKT’s Federal Reserved Water Rights Compact. They were aired at numerous public negotiation meetings, in the Montana Legislature as well as in the news media.
Before being implemented, Tribal Nation Water Rights Compacts must pass the Montana Legislature and both chambers of the U.S. Congress, then be approved by the affected Tribal Nation and the Montana Water Court. In 2015, after a decade of negotiations between CSKT, the State of Montana, and local landowners, the Montana Legislature passed the bipartisan CSKT Water Compact.
Eventually the time came to introduce in the U.S. Congress the CSKT Water Compact ratification legislation, including damages settlement for past water-related mismanagement by the federal government.
Montana’s Democrat Senator Jon Tester first introduced the CSKT Water Rights legislation in the U.S. Senate in 2016 but it didn’t have enough bi-partisan support in the U.S. Congress. However, recently negotiated tweaks of the damages settlement component of the water legislation gained bi-partisan support in Congress as well as support from the Trump administration and the Department of Justice after they felt that opponents’ concerns were addressed in the revised compact.
As a result of the recent negotiations, Montana Republican U.S. Senator Steve Daines announced on Thursday, December 5, that he would introduce the CSKT Water Compact, entitled “Montana Water Rights Protection Act” in the U.S. Senate.
According to Daines the Montana Water Rights Protection Act protects Montanans’ due process by giving them access to state courts over water disputes between tribal and non-tribal members. It also affirms Montanans’ Constitutional protection that the water of the State of Montana belongs to all the people for their common benefit, as articulated in Article IX, Section 3[BU1]. It will prevent years of costly litigation for Montana water users, and provide much needed certainty for all parties involved.
“After years of negotiations and hard work, I’m pleased to announce we have reached a new agreement that permanently settles a century old water dispute in Montana and protects the water rights of all Montanans,” he said. “The ‘Montana Water Rights Protection Act’ will permanently eliminate almost all of CSKT’s water claim rights across Montana with prejudice, save taxpayers over $400 million, and give all water users across Montana protection and certainty.”
In the settlement the CSKT will receive $1.9 billion to mitigate on Flathead Indian Reservation natural resource mitigation damages and rehabilitate the Flathead Indian Irrigation Project infrastructure. The settlement also requires the Unitary Management Board to cross-file water records with Montana DNRC, and requires all meetings and proceedings open to the public. Also Lake and Sanders counties will receive $10 million in road infrastructure funds.
“This will work and get the job done. This bill will ensure the protection of vital resources while seeing to the needs of the greater community,” CSKT Tribal Council Chairman Ronald Trahan said. “The Tribes on this reservation have worked hard to be good neighbors and sometimes that means making tough decisions which serve the entire community.”
The legal strength of the Flathead Nation’s 1855 Treaty of Hell Gate was reinforced as the compact will protect in perpetuity tribal water rights articulated in the Treaty. It is the only Indian Nation Treaty in Montana that recognizes a Tribal Nation’s off-reservation hunting, fishing (water) and gathering rights.
Senator Daines’ announcement of the introduction of the CSKT Water Compact settlement was welcomed by Montana Governor Steve Bullock, Senator Tester, and Montana Attorney General Tim Fox.
“It has been nearly five years since Montana legislators, CSKT, landowners, and Montana water users passed the compact on a bipartisan basis and nearly four years since Sen. Tester first introduced the measure before Congress,” Bullock said. “I urge Congress to move swiftly to advance this important legislation.”
Sen. Tester has long been a champion of Tribal Nations and water users in the state. He sponsored the Blackfeet and Crow Federal Reserved Water Rights Compact which were signed into law in 2016 and 2010 respectively.
“Today’s deal is long-overdue good news for Tribes, farmers, ranchers, and Montana taxpayers,” Tester said. “I’m glad we’re all now on the same page about the importance of getting this done, but the clock is ticking on our ability to prevent costly litigation and protect our state’s most valuable resource. It’s critical we get the CSKT Compact introduced and moving so we can provide certainty for all water users and boost economic development in Northwest Montana.”
Fox said he did not support the CSKT Water Compact’s 2013 language because it didn’t provide sufficient protections and certainty for state water rights holders. He added that key changes in the CSKT Water Compact, in which he and his staff were involved, resulted in the 2015 compact that was passed with bipartisan support also gained his.
“President Trump’s administration is backing the CSKT water compact and there is bipartisan support from Montana’s congressional delegation, so it’s time to get this done,” Fox said. “I am grateful to Senators Daines and Tester for their support of the compact passed by the 2015 Montana Legislature. I call upon Congress to ratify it as soon as possible.”
Is it now time for whiskey with a water-back, Mark Twain?