Lake, Sanders commissioners oppose water settlement
[Editor’s Note: Lake and Sanders county commissioners sent the following response to the “Montana Water Rights Protection Act” draft legislation.]
The Lake and Sanders County Commissioners received a draft of Senator Steve Daines’ “Montana Water Rights Protection Act,” a proposal to provide a settlement to the CSKT water compact, on Dec. 10.
After reviewing the framework of the draft proposal, the Commissioners request that the Senator delay introduction of the bill into Congress until the Commissioners can meet with the Senator to discuss the significant negative consequences of the “Act” to our Counties.
The Senator’s draft “Act” does not in any way accomplish its stated objective which is to “provide a fair, equitable and final settlement of claims of water rights in the State of Montana.
Instead, it is a capitulation to the demands of the CSKT that off-reservation water rights to be included in any settlement. To satisfy these demands, the Senator is proposing that the State of Montana and federal government cede over 50,000 acres of public lands in our Counties in addition to relinquishing jurisdiction and control over all public roads and rights-of-way on the Reservation.
These proposals are unacceptable to the Commissioners and residents of our Counties. The Commissioners have been assured by the Senator that his proposal is merely a draft and changes can be made, but the framework
of the draft contains language that cannot be included in any final compact settlement bill.
The draft “Act” is no more than a re-write of Senator Tester’s Senate Bill 3013 which was proposed in June of 2016, but never introduced into Congress because of a lack of support from the public and Senator Daines himself. This “Act” is not an improvement on Senate Bill 3013.
We urge citizens of our County to contact the Senator or his office and urge him not to introduce his “Montana Water Rights Protection Act” at this time. The Senator needs to be made aware of the flaws in his proposed legislation prior to it being put in the hands of Congress.
There are many items of concern or needing clarification in the Senator’s proposed Act.
A summary of some of the issues needing clarification are explained in detail below:
Page 3 (B) Inclusions-“the term ‘Reservation’ includes any right-of-way through the reservation.”
1. Although a definition of “Indian Land” has been removed from Senator Tester’s SB 3013, the “Reservation” definition remains in the present draft. “The term ‘Reservation’ means all land within the exterior boundaries of the Indian Reservation established under the Treaty between the United States and the Flathead, Kootenay, and Upper Pend d’Orielles Indians concluded at the Hell Gate July 16, 1855, not withstanding the
issuance of any patent on the Reservation.”
2. Does this clause give CSKT jurisdiction over all rights-of-way on the Reservation?
3. Has the Senator confirmed with the Montana Department of Transportation that it will continue to maintain the state highways within the boundaries of the Reservation if the state no longer has jurisdiction over those rights-of-way?
4. The Senator included in his press release in early December that his Act would protect public access by law. Legal public access to rights-of-way appear to be compromised by the “Reservation” definition. Lake and Sanders County are presently in Federal Court after being sued by CSKT over road jurisdiction in the Big Arm town site,”
CONFEDERATED SALISH AND KOOTENAI TRIBES vs. LAKE COUNTY BOARD OF
COMMISSIONERS; AND LORI LUNDEEN.”
Sanders County is presently filing paperwork to intervene in the lawsuit. If this definition remains in the proposed legislation, the outcome of this suit becomes moot even if the Counties prevail. Additionally, Supreme Court decisions such as CLAIRMONT v. US (1912) which states, “Our conclusion must be that the right of way had been completely withdrawn from the reservation by the surrender of the Indian title, and in accordance with the repeated rulings of this court, it was not Indian country,” no longer apply.
Page 4 The tribes shall comply with (C)” all other applicable environmental laws (including regulations).”
1. Who monitors this and what is the penalty for non-compliance? Tribes have demonstrated non-compliance in recent past, ie. Big Arm Marina, with no apparent penalty.
Page 7 (2)(C) “the United States shall have no obligation to monitor, administer, or account for-(i) any funds received by the tribes as consideration under any lease, contract, or agreement entered into by the Tribes pursuant to subsection (d); or (ii) the expenditure of those funds.”
1. Does this apply only to Section 6. STORAGE ALLOCATION FROM HUNGRY HORSE RESERVOIR? or, in general, to all of the funds included in the Act?
Page 9 (2)(e) Land acquired by the United States or Tribes. “Any land acquired within the boundaries of the Reservation by the United States on behalf of the Tribes, or by the Tribes on behalf of the Tribes, in connection with the purposes of this Act shall be held in trust by the United States for the benefit of the Tribes.”
1. During all discussions with the Senator prior to this draft, Commissioners stressed the need for compensation for lands acquired by this Act. This appears to not be addressed in the draft.
2. Does the land being delivered to CSKT by the agreement have to go through the trust process? The language of the ACT seems to indicate that the land will not. If this is true, Lake and Sanders’ Counties forfeit any opportunity, through the administrative process, to protest or appeal any transfers.
Pages 11 and 12 (g) Uses-Amounts in the Trust Fund shall be used by the Tribes to implement the Compact, the Law of Administration, and this Act for the following purposes: (14) “To repair, rehabilitate, or replace culverts,
bridges, and roads of the Flathead Indian irrigation project and any public or Tribal culverts, bridges, and roads that intersect with, or are otherwise located within, the supply and distribution network of the Flathead Indian irrigation project.”
1. Who is going to be performing or contracting this work? Will the work need to be done to Federal specifications? Does this section obligate County resources without consultation?
2. This section gets back to the rights-of-way question. Who has jurisdiction over the rights-of-way where most of this work will be performed? Will CSKT be required to obtain road encroachment permits from Lake and Sanders County?
3. When the appropriation fund is empty who will be responsible for continued maintenance of the culverts, bridges and roads?
Pg. 13 (1) Were the amounts listed under (A), (B) and (C) compiled from the “Damages Report” referred to on page 2 of the draft? This report was compiled by CSKT; was there any questioning of these amounts?
1. The draft is unclear as to what the dollar amounts under (A), (B), and (C) are appropriated for SB 3013 established accounts for agricultural, economic and community development.
Does the Senator’s bill establish the same three accounts?
Pg. 20 (1) STATE TRUST LAND
1. Do the Counties have any input into which lands are swapped? Are some our State Parks, such a Big Arm, Finley Point, and Wild Horse Island in the exchange discussion? What is the status of the school district sections?
2. 36,808 acres of land will be acquired to be put in trust for CSKT. How was this number determined?
Pg. 21 (E) TITLE-If the Secretary obtains private land pursuant to subparagraph (C), “the Secretary shall transfer title to the land to the Tribes.”
1. Any mediation of the tax loss if the land transfered is in fee status?
Pg. 22 PAYMENTS (B) (i) $5,000,000 to Lake County, (ii) $5,000,000 to Sanders County .
1. Lake and Sanders Counties were never asked to prepare a “Damages Report” summarizing damages and costs of the Flathead Irrigation Project to County bridges and roads. We ask that we be given an appropriate amount of time to prepare such a report rather than have an arbitrary amount determined without consultation.
THE NATIONAL BISON RANGE RESTORATION
Senator Daines’ quote in a December 10, 2019 article in the Daily Missoulian states that the NBR transfer “is part of an agreement and compromise reached in exchange for the Tribes making significant concessions to water claims.” The December 12 issue of the Tribal newspaper, the Char-Koosta, states that the NBR transfer would, “reduce
the amount of federal dollars needed to settle the United States’ liabilities for past mismanagement of the Tribes’ water.”
The two quotes are contradictory and the public is entitled to know which statement correctly reflects the reason for the potential transfer.
Lake and Sanders Counties participated as Cooperators with CSKT, BIA, and Montana Fish Wildlife and Parks, in writing the recently released “Comprehensive Conservation Plan and Environmental Impact Statement” for the NBR.
The purpose of this plan was “to provide long term guidance for management of refuge programs and activities.” None of the three management plans under consideration and approved by the entities contemplated the change of ownership of the NBR and everything connected to the Range, by CSKT, as proposed in the draft Act.
It appears that this work by the various agencies involved was for naught.
The “Tribal Management” narrative on page 25 of the Senator’s Act states that “the Tribes shall provide public access and educational opportunities” if the transfer is made. On December 5, 2019, the CSKT made public a document entitled, “Cultural Waterways Ordinance.”
A paragraph in the ordinance includes the following, “The CSKT Tribal Council is empowered to exclude non-members from trust and tribal lands and waters of the Reservation.” It appears that the proposed settlement holds the Tribes responsible for keeping the Range public even if it is held in trust, but the CSKT Tribal Council could override that part of the agreement.
The press above referenced press release is also misleading as the release states, “annual appropriations to manage the range would cease.” Pg. 25 of the Act under (f) Transition (1) IN GENERAL –states “Notwithstanding any other provision of law, during the 2-year period beginning on the date of enactment of this Act, the Secretary shall
cooperate with the tribes….including by providing to the Tribes funding….”
Annual appropriations may cease, but funding remains in place.
The “restoration” language in the draft act is nearly identical to a draft bill written and proposed by Senator Tester. The only difference is that it appears the two Counties will receive funding to compensate for loss of Refuge Revenue Sharing Act dollars.
SUMMARY
Senator Daines’ Act is a regurgitation of Senator Tester’s SB 3013 with a few cosmetic changes and a multitude of additional perks. The Tribes are complimented for making “significant concessions” to water claims, but the only concession made appears to be relinquishing partial ownership of 29 off-reservation water rights in the Flathead Basin.
In return for these “concessions” CSKT receives 1.9 billion, and 36,000 acres of additional land on the reservation.
Depending on further clarification from the Senator, the NBR may or may not be returned to the Tribes as compensation for giving up some off Reservation water rights. The Act does not accomplish its stated purpose of a fair, equitable and final resolution of water rights claims on the Flathead Indian Reservation.
The Commissioners are of the opinion that no compact bill would be preferable to the Senators’ Act. The CSKT might prevail in Water Court and our irrigators might lose their water, but, the CSKT would not gain jurisdiction over public rights-of-way, thousands of acres of public land, the NBR and $1.9 billion in a court settlement. What good are
our water rights if residents lose legal access to their properties?
We urge the Senator not to introduce this piece of legislation. The Senator appears ready to make our two Counties the “sacrificial lambs” in order to make his Act acceptable to the CSKT.
It is fatally flawed and extremely harmful to the residents of our Counties and potentially damaging to many other reservation counties that you represent.