By Charmel Gillin
Polson District Representative
Polson District Meeting held on January 22, 2020, attracted 28 individuals from Ronan and Polson, to learn about the Tribes’ water settlement and the Montana Water Rights Protection Act (MWRPA) facilitated by the CSKT Legal Department Rhonda Swaney and Ryan Rusche, and hosted by Tribal Council Representative, Charmel Gillin.
Specific questions regarding the priority dates of lands owned by tribal members or any land owners within the irrigation project were clarified by an overview of the protections within the compact specific to the 1855 and time immemorial priority dates. It was further explained that the Compact eliminates problems associated with junior priority dates (for example, 1910) on properties served by the FIIP, since under the Compact the entire Project will have an 1855 priority date.
Legal staff described the due diligence negotiations scenario used to formulate the MWRPA fund and its authorized uses. Such a scenario as, “if we filed a law suit against every claim and won, what would we do?”, resulted in an analysis of natural resource damages based on value of restoration resulting in a list of feasible projects. Thus, a settlement proposal was priced at $2.3B as an opening offer, with room for negotiations, as reasonable. In those final negotiations, it was agreed that $1.9B would be supported as evidenced in the bill sponsored by the Montana Senators. The difference was removing some of the feasible projects which were not highly prioritized in light of the positive outcomes exchanged such as the returned ownership of the National Bison Range and the exchange of lands of equal value for ownership of state parcels (up to 36,808 acres) on the reservation. One Ronan resident, a former US Forest Service employee, commented how that is beneficial to land managers on all sides, especially in light of the fact that the MWRPA causes the federal government to be involved.
Additional interest was shown by attendees who learned that (if ratified by all parties) all of the federal contribution ($1.9B) will be deposited in a tribal trust account under the American Indian Trust Fund Reform Act (AITFMRA), not appropriated by secretarial funding bills. If not funded through AITFMRA, the federal system would be burdened by awaiting replacement funds and delaying appropriations while the cost of project goes up, ultimately increasing the cost of the MWRPA. It also provides the CSKT more flexibility (in timing and prioritization) to spend under guidance of the MWRPA bill.
Of course, there was need to understand the media blitz following U.S. Senator Daines’ announcement relative to the 97percentof water rights given up. The MWRPA ratifies the tribal water rights in the Compact, including protections for all existing uses of water by the Tribes and all Tribal members. If Tribes accept the settlement under the MWRPA, the Tribes would convey to the state co-ownership of the STATE’s upper Flathead Basin Rights; but the Tribes retain the same amount of water because the State instream rights are upstream of Tribal consumptive water rights on the Flathead River below the Lake. In addition, the Flathead system compact water and the 90,000 acre-feet per year of water from Hungry Horse are still included. There are also federal biological protections which ensure the water.
The artful play on words that suggest some huge aspect of loss are a comparison of the 9,981 claims were filed by CSKT and the US which will be litigated if the Compact isn’t ratified, to the 310 individual water rights in the Compact. Comparing water claims to water rights is a comparison of packaging, not any actual amount of water. If the settlement is ratified by the US and the Tribes, all water usage on the Reservation will be registered under the Unitary Management Ordinance.
One tribal elder commented that while the 14 authorized uses are reasonably supported as feasible natural resource mitigations, he feels the tribes’ health and social recovery program needs should also be addressed with this trust settlement. Legal staff agreed, that restoration is important and we are trying to create a restoration economy – which is the theme of monetary settlement – for future generations.
Another fact that is little known is the project currently is only 40 percentefficient, meaning 60 percentof the water is lost. The restoration of those water flows and the improvement on the pumping facility on the Flathead River will reduce reliance on high water streams to support the massive irrigation system and shift burden to the pumping plant and cure 60percentinefficiencies. This is an important fact also when considering climate change and the threat of less water in the future. We can protect our fisheries in our mountain lakes and streams, especially the threatened bull trout, by utilizing our resource expertise now with the support of the settlement.
A tribal member irrigator questioned whether there would be a “turn over” of the irrigation project which led to a discussion about the Flathead Allotment Act and the subsequent cooperative management entity (CME), and the Joint Board of Control’s decision to withdraw from the CME. The BIA reassumed management after the Joint Board of Control (JBC) withdrew. Later, when the JBC filed for Secretary of the Interior (SOI) to turn the Project back to JBC, the 9th circuit ruled there was no further obligation by SOI to turnover. Legislation includes opportunity for a new CME if one or more irrigation district is interested. An alternative is the Tribes and one or more district can form an entity to be treated as “Tribal Entity” for purposes of the Indian Self-Determination and Education Assistance Act (ISDEA) and compact project operations. Running the project under ISDEA would create more advantages and protections for the project.
One concerned attendee asked how state trust lands would revert to ownership and how would it affect tax? Rusche explained that money from state trust lands go into school trust and go back through state to schools. There will be no net tax change because the lands will be exchanged for like land values. Overall tax implications on everything in the bill is quite limited. The National Bison Range is part of the refuge system with refuge revenue payments made to the County but the bill perpetuates the refuge revenue payment to Lake County.