County governments pressured to object to CSKT compact

As the deadline approaches to file objections to water rights claims set out in the Confederated Salish and Kootenai Tribes-Montana Water Compact, some local officials are considering the effects of the landmark deal.

Mineral County Deputy Attorney Wally Congdon, for one, believes there is reason to object.

Congdon, an attorney with a history working on water rights cases, led a public meeting Thursday, Nov. 3, at the Sanders County commissioners chambers, where he advocated for individuals, and the county itself, to file objections. The meeting brought together several dozen people, as attendees lined the walls and watched from the doorway.

The compact between the Confederated Salish and Kootenai Tribes, the state of Montana and the United States settled water rights claims in Western Montana. Republican U.S. Sen. Steve Daines in 2019 introduced the Montana Water Rights Protection Act in Congress, and a year later it was signed into law by former President Donald Trump.

Secretary of Interior Deb Haaland ratified the compact Sept. 17, 2021, clearing the way for the establishment of the Flathead Reservation Water Management Board, a new entity tasked with administration of water rights on the reservation.

Although the water board has been meeting since last January, the compact itself awaits a final decree by the Montana Water Court. The water court has an objection period open through Dec. 6.

Congdon believes parts of the compact are objectionable, and in the meeting two weeks ago, he warned that most western Montana residents, cities and counties should be paying attention to the issue.

Congdon made several sweeping claims, including an argument focused on water quality needs. If water quality needs to be improved, he told the crowd, either the source of pollution needs to be removed or more water will be needed to dilute water sources. This could lead to neighbors needing to settle water quality rights between themselves, Congdon claimed.

With the Tribe’s water rights dating back to either 1855 or time immemorial, they would have the longest standing water rights. The historical territories of CSKT covered all of western Montana and extended into parts of Idaho, British Columbia and Wyoming. The Hellgate Treaty of 1855 established the Flathead Reservation, but over half a million acres passed out of Tribal ownership during land allotment that began in 1904. The treaty established CSKT's right to water, which is recognized in the compact. In Montana, water rights are first in time, first in right.

Congdon also claimed the Montana Water Rights Protection Act was making changes not known or approved by the state Legislature. He referred to this as “legislation by the blind.”

The meeting centered around a map which highlighted areas where tribal water rights were filed, and though Congdon conceded the Tribe’s intention to drop some, he said that it was unclear what would happen to the rights after the final ratification.

The CSKT originally filed over 10,000 claims off the reservation, but in exchange for the ratification of the compact the tribes settled for 211 rights on the reservation, 10 outside of the reservation and co-ownership of 58 other water rights with the U.S.

Following the Dec. 6 deadline, the Montana Water Court will review some of the objections to the Tribe’s water rights, Cogndon said. He insisted that people file objections and hire lawyers who handle water rights, like himself, even handing out the paperwork to do so.

During public comment, attendees asked for Sanders County to file objections to the compact. Although members of the Sanders County commission were present, they did not add the topic to their official agenda.

There were incendiary comments made at times.

“Welcome to 1961; I hope you like the drinking fountains,” Congdon said to the crowd.

At one point, he tried to discredit Tribal sovereignty, and went into a lengthy metaphor referring to it as "marketing."

Robert McDonald, former communications director for the CSKT who now works in the CSKT natural resources department as a compact implementation officer, offered a different perspective.

"Up until the Nixon administration, Federal policy regarding Tribal Nations was termination," he wrote in an email.

"Nixon started the era of self determination with the Indian Self-Determination Act of 1975. That was a shift in policy to empower Tribal Nations to take more control of their governments. CSKT is known as a self-governance Tribe that has pursued opportunities to self govern and manage their own people, programs and policies," he wrote.

In fact, CSKT refers to itself as a 'people of vision,'" McDonald said.

McDonald noted that the compact has had long-standing organized opposition since its inception.

A document titled Know the Facts, posted at the website of U.S. Sen. John Tester, an early supporter of the Compact, lists a number of problems solved by the agreement. At the top of the list: "avoid costly litigation for taxpayers and the tribes." The document also notes that the settlement "does not restrict any future off-reservation water lawsuits in northwest Montana."

St. Ignatius resident David Passieri, who was filming the meeting, and has spoken at similar meetings in the past, addressed the crowd in Sanders County.

Although he was vague on details, Passieri said there were third parties from out-of-state who would make themselves known soon, and were involved in the process of fighting the CSKT compact.

"The plan is to take this to the U.S Supreme Court," Passieri said, of filing objections with the water court.

Previously Congdon was the civil attorney for Lake County, where he worked with Lake County commissioners to create a similar presentation to the one he gave in Sanders County, which was shown before the ratification of the compact.

Gale Decker, Lake County commissioner for District 3, said Lake County’s main complaint is with the Montana Water Rights Protection Act.

Although Decker thought there was a chance other counties would file objections, like Congdon suggests, he thought that Lake County’s objections would only cover arguments already being made by other counties. He speculated Ravalli, Mineral and Sanders counties may object to the compact, and they would cover Lake County's complaints in doing so.

The 1979 Legislature created the Montana Water Court to expedite and facilitate the statewide adjudication of over 219,000 state law-based water rights, including Native American and federal reserved water rights claims.

The water court operates on a similar level to a district court. The water court has exclusive jurisdiction over the adjudication of water rights claims, which is unique among U.S states, Stephen Brown, associate water judge for the Montana Water Court said.

“The CSKT Compact is not the first compact we’ve done,” Brown said. “Generally a compact is a water rights settlement.”

The water court recently issued a preliminary decree for the compact, and this began a period where people can file objections to the compact, Brown said.

The water court has overseen compacts for the Blackfeet, Crow and Fort Peck reservations. The CSKT's compact is the most detailed settlement of tribal water rights in Montana to date, Brown said, but it’s not the only one to handle off-reservation water rights.

Ultimately, unless there is an objection that deals with the validity of the compact, the water board will move forward with the compact and issue a final decree. The water court will go basin-by-basin with its ruling, Brown said.

“Anyone who has concerns can file an objection,” he added.