“When the well is dry, we know the worth of water.” – Benjamin Franklin
POLSON – A water rights negotiating session can be many things, including long, boring, complicated, informative, confusing, patience-testing and, occasionally, entertaining.
But, no matter which direction the barometer is headed, they always are one thing to all involved.
They are important, and hugely so.
Water is, after all, said to be the new, or at least next, gold – and it’s forever been a precious commodity to farmers and ranchers.
Here on the Flathead Indian Reservation, the negotiations have been going on for years – decades, depending on where you start your timeline – and the ramifications go far beyond the reservation’s boundaries.
Montana’s Reserved Water Rights Compact Commission has been at this since the 1979 Legislature created it to negotiate compacts “for the equitable division and apportionment of waters” between the state and its people, and Indian tribes claiming reserved water rights within the state.
The federal government is involved as well when it comes to non-Indian reserved waters.
In the 33 years since, the commission has successfully completed compacts – which must be ratified by both the Montana Legislature and U.S. Congress – with everything from the National Park Service to the U.S. Forest Service, and on every other Indian reservation in the state.
Fifteen have been signed.
But the one on the Flathead Reservation is a different animal, for two reasons.
For one, Congress’ 1904 Allotment Act that opened the reservation to homesteaders eventually made the Confederated Salish and Kootenai people a minority on their own reservation. On this reservation, non-tribal members outnumber tribal members by more than 2-to-1, and that complicates things.
“The Hellgate Treaty is unique among Indian treaties in Montana,” says Missoula attorney Chris Tweeten, chairman of Montana’s compact commission. “It gave the tribes the right to hunt and fish in their traditional locations.”
For the Salish people, for instance, that includes – but is not limited to – the Bitterroot Valley the federal government forced them from in the 1880s.
“How are courts going to interpret that?” Tweeten asks. “The rights of tribes regarding instream flows off the reservation?”
The CSKT, state and federal governments entered into talks in the 1980s, Tweeten says, but agreed to step away from the table to await decisions in lawsuits that would affect a compact.
Negotiations restarted in 2000 or 2001, and for the last eight years, the parties have met on a monthly basis.
But time could soon run out on them. If they don’t agree on a compact to forward to the 2013 Legislature in January, all the years of work could be for naught. The compact commission “sunsets” out of existence on July 1.
Unless the Legislature extends the commission yet again, were it not to receive a compact to consider, and OKs even more years for it to continue to negotiate with the tribes and federal government, that would be it.
Water rights on the Flathead Reservation and beyond would be left to a free-for-all in the court system.
“When you boil it down, what we’re trying to do is settle a lawsuit out of court,” Tweeten says. “In 1979, the Legislature directed the attorney general to file a lawsuit in water court to have water rights adjudicated, knowing that if it went to litigation, the tribes would have claims. The Legislature then created this process to settle the tribes’ claims out of court.”
On the plus side, Tweeten says the tribes and state “have been of one mind … committed to protecting existing uses.”
But the devil is in the details, and they’ve spent eight years negotiating how, exactly, to do that.
It gets complicated quickly.
If nothing else, that was clear at the latest public information meeting Tuesday night, and at a Wednesday morning negotiating session.
First, there are separate negotiations going on involving the Flathead Indian Irrigation Project on a water-use agreement that needs to be completed before a compact can be finished.
As soon as talk turns to that, you start hearing about potential evapotranspiration and satellites that pass over the Flathead and Mission valleys every 16 days at 11 a.m. that are capturing images, and seeing complex equations in Powerpoint presentations that seem to come off a clearboard from the apartment of Sheldon Cooper and Leonard Hofstadter in “The Big Bang Theory.”
“Parts of it are complicated in a scientific way,” Tweeten admits.
When the public gets its chance to comment or ask questions, they are many, and all over the map.
Rancher Jerry Laskody of St. Ignatius is concerned that his water rights are being determined by a satellite taking just eight images at the same time of day over the course of many months of a long growing season.
Without lysimeters in every field on the reservation to measure the evapotranspiration, says compact commission engineer Bill Greiman, it’s the best way to do it.
“I think there’s a disconnect between how you think farming is done, and how it’s actually done,” Laskody tells the commission. “I think a significant number of farms will not get the amount of water they’ve historically gotten.”
Rita Hall of Flathead County says she fears a compact will cede control of lands outside the reservation to the tribes, “all the way to the Continental Divide and beyond.”
“This is not a local issue,” she says. “We’re talking all of western Montana, folks.”
Polson Realtor Ric Smith cautions that the lack of an agreement, and ensuing lawsuits, could affect property values.
“I support the compact,” Smith says. “Litigation creates uncertainty. This is good for business, good for real estate values, and good for the social values of the community. We can solve this locally, we don’t need a judge in Washington, D.C., to do it. The world is complicated, but if we can’t work things out in this tiny valley how can we expect the rest of the world to work things out?”
State Sen. Verdell Jackson, R-Kalispell, says he is concerned the compact will not allow enough water for future economic development. State Rep. Mike Cuffe, R-Eureka, asks that the term “co-ownership” of water with the tribes off the reservation be removed from future offers and counteroffers. He worries it could be lead to the tribes trying to control mining and logging in Lincoln County.
“Don’t turn fishing rights into something else,” Cuffe says.
John Swenson, a Libertarian candidate for Lake County commissioner, gets into an extended discussion with Clayton Matt, who heads the CSKT negotiating team, about whether the tribe is a sovereign government or a federal corporation.
While it is allowed by law to incorporate to operate business interests such as S&K Electronics, Matt explains, the tribes are first and foremost a sovereign government, and at the negotiating table only as such.
Retired Ronan attorney Lloyd Ingraham rises to charge that the tribes – who are in negotiations to take over Kerr Dam in 2015 – intend to divert water from historically agricultural purposes to the hydroelectric plant under the compact and sell the power generated to the Bonneville Power Administration.
Tweeten tells Ingraham he has not “heard a single word, in any negotiation, to substantiate that.”
Before he is done, Ingraham asks for a show of hands of people in the audience interested in forming an association to protest the compact.
A handful of the 50 to 60 raise theirs.
Tweeten says the lack of a compact would result in “a tremendous expense to the state, and to water users.”
“The only comparable situation was on the Wind River Reservation in Wyoming,” he says. After failing to reach an agreement there, he says, “it took 20-plus years to get a decision out of the Wyoming Supreme Court, and in the meantime, tens of millions of dollars were spent by the U.S. government, not to speak of the cost to the state of Wyoming and Wyoming citizens.”
Even then, the court simply affirmed that the tribes involved had a water right, and said nothing about how it was to be administered, Tweeten says.
“That’s where we have the advantage,” he says. “We can resolve the administrative question so that people know.”
To the crowd Tuesday night, Tweeten said that if no compact is agreed on, the tribes will have two years to file their claims on water both on and off the reservation, and the matter will be left to the courts.
“Why would you take the risk?” he asked. “You can go to water court, and try to defeat the tribes’ water right, but the courts will give priority dates to the tribes earlier than any of your water rights.”
The last person to speak after Wednesday’s latest negotiating session is tribal elder Patrick Pierre.
“My tribal elders ask me, ‘Why in the hell would you sit with those people?’ ” Pierre says, “but working together is the only way we’re going to get anything done.”
While offering to assist anyone who doesn’t like the realities of living on an Indian reservation in moving on – “I’ve got a truck, I can help,” he told them – Pierre encouraged people to ask themselves if they were being part of the solution, or part of the problem.
“Once divided, we’re going to fall,” he said. “We need to put aside whether you’re a tribal member, a corporation, or whatever. Rather than jibber-jabber over nothing,” people need to focus on completing a compact.
“You aren’t never, ever going to satisfy everybody,” he said. “With any compact, there will be people complaining.”
What residents must decide is if they believe they can do better on their own in a court than at the negotiating table, and whether it’s worth the cost.
“People are concerned,” Tweeten allows. “There’s a lot at stake.”