By Michael Howell
The Montana Reserved Water Rights Compact Commission has reached agreement between the federal and state governments and the Confederated Salish and Kootenai Tribes over water right claims associated with the Hellgate Treaty of 1855. The Compact Commission is holding meetings across Western Montana and held one in Hamilton last Thursday to present a proposed agreement to the public that would resolve basic water right claims on and off the reservation, including aboriginal hunting, fishing and trapping rights in the Bitterroot Valley.
In response to the obvious and pervasive concern of the people in attendance about the effect of the agreement on irrigation water rights in the valley, the answer was from the beginning to the end that the proposed agreement would not change a single water right in the Bitterroot Valley nor would it change the priority date of any existing water right.
In fact, Chairman of the Compact Commission Chris Tweeten told the crowd, what the agreement does accomplish, if accepted, is the end of any possibility that the Tribes will step into the Montana Water Right Adjudication process and make a claim in the Bitterroot Valley to a water right with a priority date of “time immemorial” that would precede all irrigation water rights in the valley. It will settle that claim for all time, he said, and provide certainty to all existing water rights holders.
Since its inception the Commission has completed 15 compacts with six tribes and five federal agencies in Montana. Completed tribal compacts are with: Assiniboine & Sioux Tribes of the Fort Peck Reservation; Northern Cheyenne Tribe; Crow Tribe; Gros Ventre & Assiniboine of the Fort Belknap Reservation; the Chippewa Cree of the Rocky Boy’s Reservation, and the Blackfeet Tribe. Federal compacts have been completed with: National Park Service, U.S. Fish & Wildlife Service, the Bureau of Land Management, U.S. Agricultural Research Service, and the U.S. Forest Service. This agreement with the CSKT would settle the last of all the Tribal claims in Montana.
Tweeten made the case that this proposed settlement was better than going into Water Court and facing the potential that the Tribes would be awarded a claim for in-stream flows for a fishery with a “time immemorial” priority date that would place it prior to any existing irrigation water right in the Bitterroot. He said the cost of going to court often exceeds the cost of settlement outside the courts and it excludes the possibility of the worst case scenario for the state in which the tribes might be granted by the court a claim that supersedes all existing water right claims filed with the state.
Tweeten said that the thing about the Hellgate Treaty of 1855 is that it contains some language that federal courts have consistently interpreted as granting ancestral fishing rights that would require a quantified in-stream flow, enough to support a fishery, that would have a priority date of “time immemorial” and precede any claims for agricultural purposes. He said none of the other tribes that have already settled their claims had that language in their treaties.
“Settling out of court makes a lot of sense,” said Tweeten. He said it puts really unacceptable consequences for the state off the table.
“We think this negotiated process offers a better result. It protects existing uses of water, especially off the Reservation.”
What the proposed agreement does accomplish, according to Tweeten, is it gives the Tribes a “beneficial interest” in the water held under three contracts by FWP, two contracts for water out of Painted Rocks Reservoir and one out of Lake Como, but it does not give them ownership. Ownership of the water remains in the hands of the state, but FWP is now obligated to consult with the Tribes about its management of that water.
The Tribes are also given co-ownership of FWP’s claim of a Recreational Water Right in the Bitterroot River with a priority date of 1970. The quantity of water involved in the claim will not change nor will the priority date. It simply gives both parties individually the right to call on the water. This claim has yet to be adjudicated by the Montana Water Court.
Governor Schweitzer’s budget has set aside $50,000 for the state’s portion in the settlement agreement. Tweeten said the cost would be borne by taking out a bond.
He said that the state was required by federal law to pay its portion of the costs for reaching settlements. He said some have been as low as $10 to $15 million, like the Rocky Boy agreement, but that the projected cost is equivalent to some of the settlements that have already occurred, such as with the Northern Cheyenne which cost about $50 million and the agreement with the Crow Tribe that cost $55 million. He said that money from the settlements went to more worthwhile projects than expenditures on a lawsuit that only go to the attorneys. A bulk goes into irrigation projects, some into wetland protection, “none goes into the Tribal general fund,” he said.
Tweeten cautioned that it was a long process and that arriving at a negotiated agreement was just the beginning. The agreement also has to be ratified by the state legislature, the Tribal government, and Congress. Some agreements have taken up to eleven years to get through the process.
Tweeten said that there is no deadline for public comment while the process is going on and it sometimes takes a number of years before an agreement is ratified by all parties.