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.”