Water negotiators close to finishing first draft on administration board Draft could be ready by the end of July

By Jennifer McBride / Leader Staff

Lawyers for the tribes and the state of Montana said Wednesday that they were close to producing a draft proposal for a unitary administration board, which would manage water rights across the entire Flathead reservation. The draft could be ready for circulation by the end of July.

According to tribal lawyer John Carter, the proposed board would be made up of local people appointed by the tribes and the state to control water on the Reservation. The board would direct the policy, which would be implemented, in part, by a water engineer who will be the board's "eyes on the street," he explained. If local residents disagree with the board's decisions, Carter said, they would still have the power to appeal in court. A non-voting federal official would also be present to protect rights.

Both the state and the tribal lawyers will create "parallel" drafts so the agreement will be codified in both state and tribal statutes. Carter said creating the board out of local residents would allow people to work with their neighbors in a fast, responsive way.

"It can provide for much more flexibility than adjudication can ever produce," Carter said.

Chris Tweeten, spokesman for the state delegation, reminded everyone that the draft was subject to change until the entire proposal is completed.

"Our position has always been that nothing is agreed to until everything is agreed on," he said.

Agreeing on the structure of the board is the first step in a very long process. The technical group, made of state and tribal employees, is still working on producing hydrographs for large-use water services, including mapping more than 130 streams on the reservation. Also, the group wants to measure evaporation and seepage and finish up a model of Hungry Horse Reservoir, which will also be included under the final management agreement. Besides the technical challenges, the water compact commission must create a system of determining post-1973 water claims which are open to dispute.

"There is no a clear and competent system to decide post-1972 permits and certificates right now," Carter said.

The water compact commission will have to create a new system before the state-imposed deadline of June 2009. Confederated Salish and Kootenai Tribal Chairman James Steele asked Governor Brian Schweitzer to extend the end date.

"We feel backed into the corner," Steele said. "We have one hand on our lawyers and one hand on our budget."

Preparing for both litigation and negotiation simultaneously puts a strain on the tribes' fixed budget, Steele said. Though the absolute deadline for court filings is set for Dec. 2009, Steele said the tribal government has to prepare to protect the tribal claims to water now. So far, Carter estimated the dual-preparations have cost the tribes about $1.5 million a year — a price which would increase "several-fold" if the tribes went to court.

Steele also said he felt frustrated by mixed messages from the government. According to Steele, Montana state legislator Ken Peterson (R - Billings), an interim member of the State Tribal Relations Committee, told the tribal council in a recent meeting that it might be a good idea for them to pursue litigation — advice he called "disheartening." Steele pointed out that the Montana state senate supported extending the deadline while the Governor and Montana House of Representatives opposed it.

"I'm very perplexed about the varying voices of the state," Steele said.

Tweeten told Steele that individual legislators do not speak for the state and said the compact commission speaks for the governor's office by law.

"The state speaks with one voice — the governor's," Tweeten said. The governor also guides the state side of the compact commission. Tweeten recommended Steele meet with the governor in person and ask for an extension.

According to Carter, who made a presentation to the public before a brief question-and-answer period open to the public, water negotiations can take some time. The Rocky Boy Reservation took six years to negotiate their water rights. Litigation can take longer. Carter said the Wind River Indian Reservation in Wyoming chose to go to court over their water rights in 1977. After half-a-dozen visits to the Wyoming Supreme Court and one visit to the U.S. Supreme Court, litigation continues more than 30 years later. Carter counseled the parties and the public to continue with negotiations.

"Right now, citizens of Montana aren't paying a penny to defend their rights," he explained. But if negotiations fall through, the tribal government wouldn't be the only ones in need of water rights lawyers. "You could be battling your next door neighbor for the water you use now," he explained.

Tweeten said the state would be open to "accelerating" the timetable.

"The sooner we can show the public the consequences of our work, the less frustrated people will feel," he added.

The only question from the public during the brand new question-and-answer period came from Polson resident Rory Horning, who asked the three sides to clarify their goals in writing. Tweeten said writing the compact's goals down would open the door to "nitpicking" over words.

"I don't think our objectives are very secret," he explained. Those goals, said, include a set that is "nimble, flexible and workable," "fair and perceived as fair."

Horning said he thought Tweeten was underestimating the public. He thought they would be less concerned with specific words and more concerned with the views of all sides of the commission.

Roger Shourds also asked the commission to create a list of acronyms to help the public understand the proceedings.

"People feel intimidated by you and this process," he said. "It'd be like [tribal elder] Pat [Pierre] and I speaking Salish and all the rest of you left wondering what's going on."