POLSON – A years-in-the-making proposed water rights compact between Montana, the United States and the Confederated Salish and Kootenai Tribes may still land in front of the Montana Legislature before it adjourns this year.

If it does, however, it now may well happen minus a separate, but potentially integral, component.

Lake County District Court Judge C.B. McNeil late Friday prohibited the Flathead Joint Board of Control from entering into a proposed Flathead Indian Irrigation Project Water Use Agreement between the irrigators on the Flathead Indian Reservation the joint board represents, and the tribes and federal government.

McNeil ruled that the board and its three irrigation districts “have no authority to enter into any agreement which provides for the irrigators to assign their valuable water rights to the Tribes or to anyone else without any compensation and without any contractual agreement by the Tribes to issue any water rights back to the irrigators.”

Doing so violates the Montana Constitution by taking a private property right without just compensation, McNeil said.

“We’ve maintained all along that the agreement … should not be fiddling with our individual water allocations,” said St. Ignatius rancher Jerry Laskody, a board member of the Western Montana Water Users Association that filed the lawsuit against the joint board of control. “Water rights are attached to the land, and can’t be bargained away without due process and compensation.”

Laskody called the judge’s ruling “a big win for us.”

***

McNeil’s decision could postpone a planned vote by reservation irrigators on whether they support the proposed and now prohibited water use agreement while the joint board considers its options, including a potential appeal of the judge’s ruling to the Montana Supreme Court.

The Montana Reserved Water Rights Compact Commission, meantime, will proceed with a vote next week in Helena on whether to forward the proposed water rights compact – remember, it is separate from the proposed water use agreement McNeil ruled on – to the Legislature, according to commission chairman Chris Tweeten.

“The commission is not a party to (Judge McNeil’s) decision,” Tweeten said Tuesday. “If the vote is positive, we’ll put the compact in bill form to be dropped into the Legislature.”

On Tuesday afternoon, the tribes released a statement indicating that if a majority of the nine compact commission board members approve sending the proposed compact to the Legislature, the proposal “will suggest that legislative approval be contingent on approval of (the) FIIP Water Use Agreement” currently in litigation in the District Court.

The water use agreement has been referred to by some as “the third leg of the stool” for the water rights compact. While it wouldn’t guarantee legislative approval of the compact, having an agreement in place with irrigators, the largest consumers of water on the reservation, would have made the compact’s sailing smoother, it was argued.

However, some farmers and ranchers felt the agreement would unfairly jeopardize their livelihoods, while a 7-4 majority of the joint board believed the agreement would protect all irrigators.

***

Jon Metroupolos, attorney for the Flathead Joint Board of Control, said he would wait to comment on McNeil’s decision until his client decides on its next move.

He did say, however, he believed there had been a “misreading” of part of his motion to dismiss the Western Montana Water Users lawsuit.

In his “findings of fact” in his 10-page decision, McNeil wrote that joint board of control “admits that approval of the FIIP Agreement by the (joint board of control) would be illegal for several reasons.”

“What we admitted is they had asserted it would be illegal,” Metroupolos said. “We don’t admit they’re right – we do not admit it would be illegal.”

The proposed compact, meantime, is the last of 16 the compact commission, created by the Legislature in 1979, was assigned to complete with the state’s Indian tribes and various agencies of the federal government such as the National Park Service and the U.S. Fish and Wildlife Service.

The other 15 have all been completed, and are at various stages in their approval processes, which include being considered by both the Legislature and Congress.

The compact involving CSKT has always been considered the most complex of them all, in part because of unique language in the Hellgate Treaty of 1855 in which the federal government gave the tribes “a strong legal basis to assert water rights off the reservation,” according to compact commission staff attorney Jay Weiner.

The Legislature extended the commission by four years in 2009, but the commission is now due to “sunset” out of existence this summer. While the Legislature could extend it again, it also could choose not to, leaving reserved water rights involving CSKT, and all others in western Montana, up to the courts.

“A federal reserved water right,” according to the compact commission, “is a right to water that is created when Congress or the president reserves land out of the public domain. These rights must be resolved as part of Montana’s statewide adjudication process.”

Reporter Vince Devlin can be reached at 1-800-366-7186 or by email at vdevlin@missoulian.com.

(11) comments

Northwoods
Northwoods

There was no concept of ownership of land to my ancestors on this or any reservation during homesteading... government said we're selling it... and land grabbers kept natives off the land with their guns.... you must of learned history of natives in a Montana class room former liberal... all your ancestors must of missed all those native no trespassing signs when you moved out west huh?

CSKT Native
CSKT Native

and before someone attempts to debate me, know this...we reserved for ourselves (the US did not "give" us) the right to hunt and fish in all our usual and accustomed areas....any thinking, rational person understands that with that right comes the promise that those lands will support those uses.....no water, no fish.....no water, no wildlife....get it?

CSKT Native
CSKT Native

How sad is this....every time the CSKT attempts to negotiate in good faith and once again compromises on something we were promised (READ THE TREATY) we are opposed by people who don't like the laws as they are applied to western water use. Fact: The Tribes are senior appropriaters and our water rights are therefore senior to all others. Why does that scare people so much? LOOK AT THE FACTS. We bend over backwards at every opportunity to work with non-tribal people, and still we are accused of trying to run you out. That's far from the case but as usual, most of the opposition is not interested in facts, only in throwing fits because they can't have it their way. Well....some of us feel there is nothing left to compromise. We tried, and we don't want to give any more. Everyone loses as a result of this decision. It does nothing to move the situation forward. It sets it back.

BWO
BWO

Maybe they could at least run their irrigation at night instead of in the blazing sun? It's all computer controlled, these guys waste water and should at least show some thanks for the gift of water.

Northwoods
Northwoods

McNeil is a good ol boy judge his character is questionable at best... illegal homesteading brought in your mission valley farmers... hellgate treaty establishes healthy instream flows for a sustainable fisheries... the reservation is what it is with all its resources 'reserved' for tribal members... don't like it? don't live here....

fomerliberal
fomerliberal

illegal homesteading?? Are you kidding. The land was put up for SALE and bought. If you need to blame someone, blame the US government, not the farmers who bought land and paid for it, and who made the Mission Valley a much better place for ALL living there. If you want ot go back to wearing buckskins, living in tipis, drying jerky and fish, using the outdoors as a toilet, losing your teeth, and dying 20 years sooner, well go do that. Times change, get used to it.

Lysstipeysi
Lysstipeysi

The land was put up for SALE illegally...period. Your ancestors should have done their research or relied on some form of common sense before purchasing land for pennies of its worth. If it's too good to be true it probably is. If you don't like tribal sovereignty, don't move to a reservation. PS I still live in tipis in the summer, I still wear buckskin, I still eat dried meat, I still eat fish and yes, I still use the outdoors as a toilet from time to time. I LOVE every minute of it! If you're talking about all the disease, greed, disgusting cattle that destroy land, the racism, the polluted water from irrigation run-off then you can keep all the vast improvement farmers brought to the Mission Valley.

Sukey
Sukey

Boneshackler :Welfare ranchers? These guys are growing your food, ranchers and farmers, melon growers, cherry trees, hay for cattle. What don't you like about cherry trees and Dixon melons? Why do you want the cattle to starve? Fishing rights have nothing to do with water rights which those treaties didn't establish

Judge McNeil there is a motion afoot to draft you to run on the Montana Supreme Court. People are talking, you have too much common sense and experience. You know this will probably be overturned by those clowns just to annoy you. You are the best Montana has to offer, you should be on the top Court of the State.

mtmike
mtmike

Dude, your schtick is getting tiresome....come up with something original, though I agree that's a tough thing to ask of a true believer.

The_Boneshackler
The_Boneshackler

The welfare ranchers win again at the expense of Tribal sovereignty and the treaties that the White man uses as toilet paper.

fomerliberal
fomerliberal

Welfare ranchers??? Well if want to call them that, you need to look at all the welfare flowing into reservations all over the US. As far as I am concerned we need to drastically reduce all this "wellfare" no matter who it is going to. The US government is the culprit, not ranchers or native Americans.

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