Friday, March 24, 2023

Rep. Read's bill to shift compact oversight tabled in committee

Daily Inter Lake | March 9, 2023 12:00 AM

In what opponents see as another effort to restrict tribal water rights, House Bill 726, sponsored by Rep. Joe Read of Ronan, aimed to change which regulatory agencies oversee water compacts in Montana. It was tabled in committee last week after resounding opposition, much of which focused on the legislation's incompatibility with state, tribal and federal law.

Read, a Republican who represents H.D 93, said his bill’s purpose is to reassign oversight of water compacts and management to the Public Service Commission instead of the Department of Natural Resources and Conservation (DNRC).

"The purpose of this bill is for oversight of the Unitary Management Ordinance that manages the Confederate Salish and Kootenai Tribes' water compact, but I also understand that this bill goes beyond that," Read said in a hearing before the House Energy, Technology, and Federal Relations committee on Feb. 27.

The Confederated Salish and Kootenai Tribes (CSKT) reached an agreement with the State of Montana and the federal government that settled most of their water rights claims in their ancestral homelands. The compact established a local water management board to oversee both native and non-native applications for water rights on the reservation.

The Water Management Board is an independent board created by the compact and the Unitary Administration and Management Ordinance, which Read was referencing. It was established in January 2022 as the exclusive regulatory body for water rights administration within the boundaries of the Flathead Reservation.

The Public Service Commission, one of the smallest agencies in Montana state government, regulates the rates and service quality of investor-owned electric, natural gas, water, waste-water, and telecommunication companies.

The bill received strong opposition and testimony in favor of its passage was brief, even from the bill’s sponsor, who was quick to note that he was asked to present this bill by a member of the PSC.

PSC commissioner Randy Pinocci, who said his testimony was representative of himself and not the Public Service Commission, was the only person who spoke in favor of the bill.

“They threatened us with 10,000 lawsuits,” Pinocci said in reference to the CSKT asserting their right to water in their ancestral homelands.

Pinocci said he thought a judge should have quickly decided that the Montana constitution outlines water in Montana as the state’s water.

“People should have access to water and they shouldn't be denied to drill a well on their property. I think the Public Service Commission would manage this better than where it's getting managed now,” he said.

Opposition to the bill was strong, and began with Patrick Yawakie, representing the Blackfeet tribe.

“We have a great issue with HB 726 moving the water rights compact commission from the DNRC to the department of public service regulation,” he said.

Alleging that the Public Service Commission’s elected members are politically motivated, he pointed out that the Blackfeet Nation settled its compact with the State of Montana in 2009 and is not the only tribe that has signed a water compact with the state. The Legislature does not have the jurisdiction to make these proposed changes without consulting the tribes or the federal government, Yawakie added.

“These water compacts with the Montana tribes do not constitute Montana public utilities industry or services,” he said.

Anna Pakenham Stevenson, the water administrator for DNRC, said the department was on hand to provide information and to testify in opposition of HB 726. She told committee members that the proposed legislation was problematic because tribal compacts specifically reference the DNRC as the governing agency. The state cannot unilaterally rewrite those compacts, she added.

Under the 18 various compacts the state has settled with federal or tribal entities, the DNRC is required to provide technical reports and technical assistance, deal with water and water management and manage relationships with impacted water users, Pakenham Stevenson said.

“This legislation would create an unworkable two-tiered system where PSC would manage the state’s duties but the DNRC has compact obligations,” Pakenham Stevenson said. “The DNRC and PSC are separate entities and the PSC does not have jurisdiction over the DNRC’s actions.”

Keegan Medrano also spoke in opposition to the bill on behalf of the American Civil Liberties Union in Montana.

“We view this as a futile effort to subvert the CSKT water compact, ultimately destabilizing the state's 17 other water compacts,” Medrano said.

He mentioned that out-of-state entities, some acting out of self-interest, have been targeting the CSKT compact. The CSKT did not threaten the state with 10,000 lawsuits, but instead the resolution of these water rights represents an empowering collaborative path forward, Medrano said.

“The CSKT compact, as others, are a common-sense solution to tribal reserved water rights that will save Montana taxpayers millions in legal costs and protect Montana from water claims from other states,” Medrano said.

Northwestern Energy representative Ryan Mclane said the bill would create considerable confusion and could be at cross purposes with existing statutes that will not be modified anywhere else.

Rachael Cone with Montana Farm Bureau Federation said the shift the bill takes would be inappropriate. Raylee Honeycutt with the Montana Stockgrowers Association and the Montana Public Lands Council also spoke in opposition to the bill, as did Clayton Elliott, representing Montana Trout Unlimited.

“I would call it a constituent bill,” Read said in his closing statement.

He told legislators that when the DNRC recognized the Unitary Management Ordinance "that would take over water rights on the Flathead reservation" it prompted the need for this bill.

“The constituents who I serve in Lake County, the constituents who are on one side of this issue and who are opposed to the compact, wanted me to bring this forward, and I did," Read said.

HB 726 was tabled in a 12-1 vote in the House Energy, Technology, and Federal Relations committee on Feb. 27.

Rep. Read was not immediately available for comment.

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