Water rights compact: A fluid proposal

State Rep. Dan Salomon, R-Ronan, is in a unique position when it comes to understanding the recently proposed water-rights compact for the Flathead Indian Reservation.

“I’m right square in the middle of it,” said Salomon, who has been on the nine-member Montana Reserved Water Rights Compact Commission since June 2011. “I kind of have three hats in the ring: I’m an irrigator, I’m a legislator and a lot of the people who have an interest in this are my constituents.”

Starting next week, there are 12 upcoming public meetings on the proposed compact, and nine of them are off the reservation, an indicator of why this compact is different from six previous tribal compacts in Montana that have been negotiated and ratified.

Based on language in the Hellgate Treaty of 1855, the Flathead compact is the only one to extend tribal water rights beyond the reservation’s boundaries.

Partly because of that, it has drawn scrutiny and suspicion.

The compact and its appendices total more than 1,400 pages — plenty of lines to read between for a public that has not closely followed negotiations that have been under way for more than a decade between the state, the Confederated Salish and Kootenai Tribes and the federal government.

After being immersed in negotiations for just a year and a half, Salomon finds himself fairly fluent on water rights and in a position to be an ambassador on behalf of the compact.

The biggest misperception about the compact, according to the legislator: “That we’re giving away the water” and that the compact empowers the tribes to take water with impacts on upstream users, Salomon said.

He and other compact defenders say that’s simply not the case.

Jay Weiner, staff attorney for the compact commission, says he’s eager to dispel what he calls another misperception.

“Nothing in this settlement allows the tribes to start charging water users for their water,” he said. “It’s to recognize and quantify the tribes’ legal water rights, to get everyone’s water rights decreed... and it does it in a way that protects existing water users, even though those water users are junior to the tribes.”

While the current compact proposal is related to off-reservation water rights, a panel called the Flathead Joint Board of Control is negotiating on-reservation water rights issues with irrigators. Once an agreement is reached, it will be folded into the compact.

Weiner stresses that non-irrigation water uses off the reservation are “100 percent protected.” Under terms of the compact, the tribes relinquished their right to “make call” against any upstream non-irrigation water right or against groundwater irrigators who use less than 100 gallons per minute.

The current process for permitting new off-reservation water uses, administered by the Montana Department of Natural Resources and Conservation, remains in place.

The only area where the compact has potential off-reservation impacts, Weiner said, is that the tribes retain their right to make call against 94 irrigation water rights off the main stem of the Flathead River and the north, south and middle forks of the Flathead.

But those rights are only “theoretically subject to call,” Weiner emphasized. “Looking at flow records, there is no identifiable scenario we can see where those rights would be called... There is so much water that flows through that system, we can’t see how conflicts would practically arise. The Flathead is an incredibly water-rich system.”

But the compact settlement still sets off alarms for many, particularly folks living on the reservation.

St. Ignatius-area resident Terry Backs started researching the compact negotiations after she learned about the process early this year.

“I realized it is pretty serious,” she said, noting that the compact has implications for 11 Western Montana counties, and it has potential impacts for 28,000 nontribal members who live on the Flathead Reservation.

Backs started organizing informational meetings, including one town-hall gathering in Ronan that attracted about 300 people.

“The irrigators are very concerned on the Flathead Reservation,” Backs said, citing an original proposal for a “one-size-fits-all” water allotment for irrigators, one of the issues that triggered separate negotiations for a Flathead Indian Irrigation Project Water Use Agreement.

Backs said the original proposal was problematic because it would not provide irrigators in some drier parts of the reservation with enough water, which raised concerns that the tribes would end up selling (or leasing) the additional water irrigators needed beyond the allotment.

“It’s a bad deal if you’re an irrigator,” said Jerry Laskody, a St. Ignatius area rancher and board member of the recently formed Western Montana Water Users Association. “If it’s implemented as proposed it’s going to have a profound effect in the Mission Valley.  In my case, the amount of water I historically use will be cut in half if this compact goes into effect.”

Laskody stressed that irrigators are most upset with the Flathead  Joint Board of Control, which is supposed to represent their interests.

But the board has not prepared itself with data to counter models produced by the tribes reflecting how much water is available for irrigation. The existing models, he said, are “badly flawed and Laskody says he can demonstrate how badly the proposed allocation would effect his ranch, but that needs to be done for the entire irrigation project.

In 2007, the Mission Valley produced about $51.6 million in agricultural products. That economic productivity will be hindered if the allotments are not adjusted to protect irrigators.

“It’s serious,” he said. “It’s going to put me out of business and I’m small potatoes. ... There are bigger farmers and ranchers out there.”

Laskody made another point: “This isn’t an anti-tribe, anti-Indian, racial type of deal, and some people are trying to characterize it as that. ... We have gone out of our way to only criticize the Joint Board of Control, which is supposed to be our representatives in this.”

Salomon, who irrigates about 600 acres near Ronan, said the allotment as proposed wouldn’t effect his operation, but he considers the concerns of other irrigators to be valid. He was hopeful the irrigation negotiations would address the issues.

“They’re working through it,” he said of the negotiations. “They’re trying to go back and try to get an agreement ... I don’t have an issue of running out of water, but others do. Hopefully these guys can get the water they’ve used before.”

Backs said another big concern is how water uses for nontribal members would be governed on the reservation. The compact would establish a Water Management Board made up of two members appointed by the tribes and two by the governor, and those four members would select a fifth member.

“We live on the reservation and we see this as being a tribal board,” Backs said, adding that she believes the board would likely be weighted in the tribes’ favor with the fifth member.

Another concern is how the compact reserves the tribes’ 11,000 acre-feet of consumptive water from Hungry Horse Reservoir, giving the tribes the ability to lease the water for use off the reservation.

“The tribe would have the only reserved water rights, and they would have the ability to market that water to people who need it,” said Rep. Verdell Jackson, R-Kalispell, who added that the state doesn’t even have that ability.

Weiner said the 11,000-acre-feet allotment actually creates a “clear pot of water” that currently doesn’t exist for mitigating off-reservation domestic, commercial, municipal or industrial water development. He frames that as an overall economic benefit for Western Montana.

Backs also has reservations about the volume of water that is quantified for the tribes in the compact. After reviewing the compact’s appendices, she estimates the volume to be as much as 25 million acre feet, which dwarfs volumes quantified in previous Montana tribal compacts.

But the volume is irrelevant from a practical standpoint, Weiner contends, because a person has to consider all the restrictions and limitations that the tribes must comply with under the compact, such as the tribes’ inability to make call on upstream water users.

Just because the tribes may claim rights to a certain volume of water, “that doesn’t mean that’s how they are entitled to exercise” their rights.

Tribal spokesman Rob McDonald declined to comment for this story, deferring to Weiner as a person who can articulately defend and explain the compact.

While Weiner and others assert that the tribes have a powerful legal advantage because of the Hellgate Treaty and subsequent court decisions, Backs and others question that position. l Jackson suggests the compact may be at odds with the Montana Constitution and state statutes.

“We believe the state conceded water rights before they even sat at the table,” Backs said. “We don’t believe it’s fair and equitable.”

While Backs and other critics have an underlying concern that the compact will have negative impacts on future economic growth in Western Montana, Weiner said the lack of a compact can have exactly that effect as well.

The compact will “remove that cloud of uncertainty that these very large but unquantified water rights can have,” he said.

Salomon said input from the upcoming public meetings could lead to adjustments in the compact, but in any case, the compact will go through considerable review well beyond the meetings.

The commission will meet Dec. 19 to decide whether to forward the compact to next year’s Legislature for approval. That will involve committee hearings and floor debates in both the House and Senate.

Jackson said he intends to introduce a bill that would extend the period for negotiating a compact to provide lawmakers with a choice beyond accepting or rejecting the compact. Currently, the authority for negotiating is schedule to end in July.

If the Legislature approves the compact, it must be ratified by Congress, a process that is expected to take at least several years. That process, Salomon noted, also will involve hearings and debate.

If the compact gets congressional approval, he added, the water rights outlined in the compact will then go to the Montana Water Court for formal adjudication.

“There’s been lots of doom and gloom, but in reality we’re getting the information out and we’re answering questions,” Salomon said. “Every step of the way, it gets a lot of review.”