Salish and Kootenai Tribes Negotiating Water Rights

By MYERS REECE.

After more than a decade of water rights negotiations, the Confederated Salish and Kootenai Tribes, state of Montana and federal government are trying to reach a settlement that will have implications across much of western Montana.

Everyone from officials in Lincoln County to farmers on the Flathead Indian Reservation have questioned how the agreement might impact their access to water. The negotiating parties are hoping to finalize the settlement – called a “compact” – in time for the 2013 Legislature.

“This affects most of western Montana, from Canada down to Butte,” said Dan Salomon, a Republican state representative from Ronan and member of the Montana Reserved Water Rights Compact Commission.

A compact is a negotiated agreement that forever settles the reserved water rights of tribes and federal agencies within the state of Montana. Since 1979, the Reserved Water Rights Compact Commission has completed compacts with multiple federal agencies and tribes on each of the state’s other seven reservations.

Only the tribes of the Flathead remain without a settlement and they are looking to once and for all quantify their water rights – both their “time immemorial” aboriginal rights and federally reserved rights.

Water rights Flathead article Pablo Reservoir

Water Debate: The Confederated Salish and Kootenai Tribes are negotiating with the state and federal government over water rights. Pictured here is the Pablo Reservor south of Polson. – Justin Franz/Flathead Beacon

Negotiations seek to protect existing uses and find an equitable balance between tribal and non-tribal interests represented by the state. The federal government serves as the trustee for the tribes.

With the 2013 legislative session set to begin in January, tribal spokesman Robert McDonald said last week negotiators are working diligently to meet that deadline. From there, the settlement would move on to Congress for consideration.

“That’s still the goal, to have something ready for the 2013 Legislature,” he said.

Water rights are inherently contentious, as they involve that most fundamental necessity of life, used by municipalities for drinking, ranchers and farmers for agriculture, the general public for recreation and wildlife for survival. In the spectrum of tribal water rights, there are two options to resolve disputes: litigation or negotiation. Montana tribes have all chosen negotiation.

Negotiations with the Confederated Salish and Kootenai Tribes are uniquely complicated because of the 1855 Hellgate Treaty, in which the Bitterroot Salish, Pend d’Oreille and Kootenai tribes ceded more than 20 million acres of their aboriginal homeland and retained the 1.3 million acres that form the modern Flathead Reservation.

The treaty also established the tribes’ fishing rights on their aboriginal territory – rights that require the protection of their traditional fisheries. That aboriginal territory extends across much of western Montana and is an important factor in the current negotiations, with city and county officials as far away as Libby making efforts to ensure that their future water uses aren’t adversely affected.

Last July, the state released a proposal to resolve the tribes’ off-reservation claims for the Kootenai River, Swan River, Bitterroot River, Flathead River system above Kerr Dam and the upper Clark Fork River. In January, the state released a follow-up document for the Kootenai, Swan and Clark Fork. The state has agreed to recognize the tribes’ in-stream water rights in the Kootenai and Swan and has proposed restrictions on new water uses in those basins.

The state is proposing a number of co-ownership plans between the tribes and Montana Fish, Wildlife and Parks. Among the proposals are co-ownership of water rights claims for in-stream flow and fish and wildlife within the Flathead River system; public recreation and reservoir contract rights on the Bitterroot; Milltown Dam water rights for the upper Clark Fork; use right claims on two Kootenai River tributaries; and in-stream flow and recreation right claims for the Blackfoot and Clearwater rivers.

water rights settlement

Chris Tweeten speaks during a Ronan water rights meeting. – Justin Franz/Flathead Beacon

On May 15, the tribes released a response to the state’s proposals, noting “areas of concurrence” and areas where the tribes “propose refinements or expansion.” The response sought to clarify issues of liability and obligations in co-ownership, as well as target stream flows and other details.

“Recognizing that these points form the basis for furtherance of this topic, the Tribes are prepared to work with the State of Montana to develop the details of what a co-ownership relationship will look like for the water rights enumerated in the Proposal,” the tribes’ response stated.

Another major component of the compact negotiations is the Flathead Indian Irrigation Project, established in 1908 to deliver water to irrigable reservation lands. Today non-tribal landowners account for the vast majority of water consumption through the irrigation system, which includes 17 reservoirs and more than 1,300 miles of canals.

In 2010, a first-of-its-kind agreement was signed to create the Cooperative Management Entity, bringing together representatives from the Flathead Joint Board of Control (FJBC) and tribes to manage the irrigation system. The agreement came after years of bad blood and lawsuits between the tribes and FJBC.

Then earlier this month, the tribes, Bureau of Indian Affairs and FJBC released a draft agreement to solve disputes over consumptive uses pertaining to the irrigation system, as well as in-stream flows and minimum reservoir pool elevations.

Salomon described the importance of the irrigation project succinctly: “It’s the economic driver for the Mission Valley.”

“We couldn’t raise the crops and we couldn’t raise the animals without the irrigation,” he said. “That’s why it’s such a huge issue around here.”

The draft agreement notes “there are significant legal disputes among the Parties as to essentially all the water delivered and affected by the FIIP and every characteristic of water rights, including but not limited to their existence, ownership, priority dates and quantity.”

“The uncertain outcome of litigation as well as the cost in time, money and social disruption inherent in adjudicating those legal disputes and implementing the results has inspired the Parties to compromise their legal claims and enter into this Agreement,” the draft states.

Public comments on the draft agreement are due in writing and should be mailed to FJBC, P.O. Box 639, St. Ignatius, MT 59865 or emailed to fjbc@blackfoot.net. The agreement can be viewed at dnrc.mt.gov/rwrcc/Compacts/CSKT/2012/DraftAgreementToSettleProjectWR.pdf.

As part of the compact negotiations, the tribes have asked to withdraw up to 128,000 acre-feet of supplemental water each year from the main stem of the Flathead River, which would require the release of 90,000 acre-feet of water from Hungry Horse Reservoir. In a letter last January, the compact commission’s staff attorney, Jay Weiner, wrote that the state is prepared to accept the proposal with certain modifications.

Another key element in the negotiations is the tribes’ proposal for a single administrative body to oversee on-reservation water rights.

At a recent town-hall meeting at the Ronan Community Center, concerned citizens questioned whether tribal water rights would trump their rights. Reserved Rights Compact Commission Chairman Chris Tweeten told the crowd that failure to reach an agreement would put the legal burden of solving claims on individual residents.

“If we don’t settle out of court,” he said, “many of you have some very difficult decisions to make about how you’re going to hire a lawyer when your water rights claim goes to water court.”

Terry Backs, an organizer of the June 21 town-hall meeting, said she’s worried the public has become disengaged as negotiations have dragged on for more than a decade. As a property owner, she said she’s also concerned about the compact’s potential impact on property values and future development.

“This is truly a big deal for western Montana,” she said. “It’s very large in scope and people should be paying attention to what’s going on in these negotiations.”

If the Legislature and Congress approve a compact, a large amount of money could be allocated to address water issues on the reservation. The Crow Tribal Water Rights Settlement Act of 2010 authorized $460 million, including $131.8 million for improvements to the Crow’s irrigation project and $246.4 million for the design and construction of a “municipal, rural and industrial” water system.

Salomon said significant amounts of data have been compiled and will now play an important role as negotiations hit the stretch run. He acknowledged “there’s a lot left to do.”

“All of these proposals are coming fast and furious,” he said. “A tremendous amount of technical work has been done and now hopefully we’re at the point where we can negotiate with all of that technical data.

“We want to get it done. And I think the tribe wants to get it done too.”

For more information, visit dnrc.mt.gov/rwrcc/Compacts/CSKT/Default.asp or www.cskt.org.