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Water Rights Compact reaches into the Bitterroot Valley

By Michael Howell

The negotiating teams for the Confederated Salish and Kootenai Tribes (CSKT), the State of Montana, and the United States have completed a proposed Water Rights Compact and released it for public review and comment. The water rights settlement provides for the administration of water rights on the Flathead Indian Reservation and will quantify the water rights of the Confederated Salish and Kootenai Tribes on and off the Reservation, including their aboriginal hunting, fishing and trapping grounds in the Bitterroot River basin.

According to the summary, the proposed agreement, which was released for review on November 8, 2012, would protect existing water uses as those rights are ultimately decreed by the Montana Water Court or permitted by DNRC. It would provide for registration of previously undocumented water uses and provide a streamlined application process for new domestic and stockwater wells. It would quantify the tribe’s water rights and provide additional water from the Flathead River and Hungry Horse Dam to meet CSKT instream and consumptive water needs and provides a process to lease portions of this additional water. It would also establish a board to administer water use on the Reservation.

According to the summary of the proposed agreement, the Tribal claims involved date back to the Hellgate Treaty of 1855.

“In the Hellgate Treaty, the Tribes reserved an exclusive Tribal homeland—the Flathead Indian Reservation—and retained hunting, fishing, trapping and gathering rights throughout their aboriginal territory. Federal courts have ruled that the language in the treaty that reserves the ‘right of taking fish at all usual and accustomed places, in common with citizens of the Territory…’ means more than the ability to dip a net into water and have it come out empty. Rather it means that the Tribes have a nonconsumptive right to water to maintain streamflows that will support a fishery resource. Instream flows for fishery purposes are

a ‘time immemorial’ water right, senior to all other water rights, and can exist both on and off the Reservation.”

In 1908, the U.S. Supreme Court ruled that when the United States sets aside land for an Indian reservation, a quantity of water is reserved sufficient to fulfill the purposes of the reservation and that the priority date of the water right to meet tribal consumptive needs is the date of the treaty (in this case, the Hellgate Treaty of July 16, 1855). Therefore, the Tribes’ consumptive rights are also senior to all other water rights on the reservation.

Aboriginal and Indian reserved water rights differ from state-based water rights in significant ways. The priority date for aboriginal water rights is time immemorial and the priority date for Indian reserved water rights is the date the reservation was created, not the date water was first put to beneficial use. They are not measured by beneficial

use but rather encompass all the water necessary to satisfy the purposes for which the reservation was created. They cannot be abandoned or lost through non-use.

While the legal basis of the Tribes’ claims to water rights is well established, the full extent of the Tribes’ rights have not yet been quantified. The Montana General Stream Adjudication requires the quantification and legal determination of all pre-1973 claims to

water rights in Montana, including aboriginal and federal reserved water rights claimed by the CSKT and the United States. Montana has finished compacts for Montana’s other six Indian reservations. The CSKT compact is the last one.

The Compact would provide the Tribes co-ownership with Montana Department of Fish, Wildlife and Parks (MFWP) of water rights for instream flow and recreation purposes in the Clark Fork Basin, Bitterroot Basin, Kootenai Basin and upper Flathead Basin. Co-ownership means parallel ownership, that is, one water right with two owners that each has the independent ability to exercise.

The Compact would also make the Tribes and MFWP co-owners of a water right formerly associated with the Milltown Dam. Ratification of the Compact by the Montana legislature would change the purpose of that right from hydropower to instream fishery. The Tribes and MFWP would work to develop joint management plans for the exercise of these rights. The Compact would also provide the Tribes with a beneficial interest in three contracts for the delivery of water from Painted Rocks Reservoir and Lake Como, both located in the Bitterroot Basin.

Bill Shultz of DNRC, who serves on the Water Rights Compact Commission, said that the Compact Water Right Agreement affects the Bitterroot River Basin in two ways. On the one hand, it makes the Tribes a partner with the Montana Department of Fish, Wildlife and Parks in managing three contracts for water out of Painted Rocks Reservoir and Lake Como. It also gives the Tribes equal stakes in MFWP’s Recreational Water Right Claims out of the Bitterroot River with a 1975 priority date. This claim has yet to be adjudicated by the Montana Water Court.

Shultz said that several informational meetings have been conducted in the Bitterroot Valley in the course of forming the agreement and that interest in the Compact waned as people with irrigation interests learned that the Compact agreement would not significantly change any existing water rights or claims or change any associated priority dates.

Public comment is now being sought on the proposed Compact and Ordinance and a series of public meetings has been scheduled. A meeting in Hamilton is scheduled for Thursday, November 29 at 3 p.m. in the Ravalli County Administrative Building, Third Floor Conference Room, 215 S. 4th Street. An evening meeting is scheduled for the same date in Missoula at 7:30 p.m. at the Double Tree Edgewater, Blackfoot Room, 100 Madison. Other meetings are scheduled in towns around the state.

Following acceptance of the public comment and any revisions made as a result of it, the Montana Reserved Water Rights Compact Commission will meet on December 19, 2012 to decide whether to submit the Compact to the Montana legislature for approval. The final Compact and Ordinance would be submitted to the 2013 session of the Montana Legislature for ratification through the enactment of state legislation. Both the US Congress and the Tribes would need to approve the settlement. After the three parties act to approve the settlement, it would be submitted to the Water Court for final approval.

For copies of the proposed Compact and Ordinance and more information visit: http://www.dnrc.mt.gov/rwrcc/Compacts/CSKT/Default.asp and http://www.cskt.org/tr/nrd_waternegotiations.htm or contact Rob McDonald, Confederated Salish and Kootenai Tribes, (406) 675-2700 ext. 1222 or Bill Schultz, (406) 542-5880, Montana Reserved Water Rights Compact Commission.

Written comments on the Proposed Compact or Ordinance may be submitted to Mr. Chris Tweeten, Chair, MT RWRCC, 2705 Spurgin Road, Building C, Missoula MT 59804 or emailed to dnrrwrcc@mt.gov. Comments will be shared with all parties.

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