AG Barr heads to council chambers

Attorney General William Barr attended a meeting of the Confederated Salish and Kootenai Tribal Council in Pablo.

Two members of President Trump’s Cabinet have voiced their support for the Confederated Salish and Kootenai Tribes water compact, but Montana's Republican senator and representative haven't explicitly endorsed the pact yet.

The compact is a massive agreement that quantifies the tribes’ water rights on and off the Flathead Indian Reservation. Crafted through years of negotiation and ratified by the state Legislature in 2015, it now awaits congressional and tribal ratification. State and tribal officials, private irrigators and water-law experts all predict that settling the tribes’ water rights with this pact will avert decades of costly litigation.

U.S. Attorney General William Barr concurred with that viewpoint during his recent visit to northwest Montana. Speaking with reporters in Kalispell on Nov. 22, he said, “I think we have to bring clarity to the situation, and I also think that these kinds of settlements, these kinds of complicated problems, are best done through this negotiation process.”

According to a 2018 report by the Montana Department of Natural Resources and Conservation, if the compact is ratified, the tribes will receive whole or partial ownership of 308 water rights, all west of the Continental Divide.

If it’s not ratified, more than 10,000 water right claims, scattered across the state, will have to be adjudicated by the Montana Water Court — a task that could take decades. “Once you get into litigation,” Barr said, “A) it drags out a long period of time with endless appeals, and B) there's a lot of uncertainty and a lot of risk by everyone.”

Nonetheless, the compact has drawn criticism for years. Opponents take particular issue with the agreement’s off-reservation water rights. The CSKT are the only tribes in Montana whose treaty underpins these rights, and the compact gives them full ownership of 10 and co-ownership of 87 more.

Last fall, a group of longtime compact critics unveiled an alternative agreement called the “People’s Compact” that would, among many other changes, do away with the off-reservation water rights. In October, Republican U.S. Sen. Steve Daines sent a list of their concerns to the Interior Secretary David Bernhardt. “I want to ensure that the proposed People’s Compact gets a fair analysis from the Trump administration," Daines wrote.

Bernhardt sent Daines a seven-page response Nov. 18. Addressing the objections to off-reservation water rights, he wrote, “The (Interior) Department determined that the case law, the history of the Tribes, and the Hellgate Treaty (between the tribes and the federal government) supported off-reservation flow claims for CSKT in the Montana adjudication. It found that it was appropriate to address those claims as part of the Compact.”

The secretary also responded to concerns about the compact’s impact on Flathead Indian Irrigation Project users and the state-tribal board that will administer water right claims under the agreement.

He concluded that “the Department of the Interior has evaluated the core concerns and criticisms that have been raised with respect to the compact and found that these concerns were addressed in the negotiations.”

"We think the letters speak for themselves, as do the comments of AG Barr,” tribal spokesperson Rob McDonald wrote in an email.

They haven’t mollified the compact’s opponents. Kate Vandemoer, chair of the Montana Land and Water Alliance told the Missoulian in an email that “we are unfazed by the letter, but very disappointed in our Congressionals." She said the People’s Compact “is moving forward and will be submitted to Congress at the appropriate time as an alternative to the CSKT Compact.”

While federal ratification legislation may commit funds to compact implementation and address other issues, water rights attorneys have previously told the Missoulian that changing the agreement itself would require approval from both the state Legislature and tribes. John Tubbs, director of the Montana Department of Natural Resources and Conservation, has called the People’s Compact “a complete misrepresentation of the compact process.”

It remains to be seen whether the Trump administration’s support will speed the existing compact toward ratification. U.S. Sen. Jon Tester, D-Mont., introduced an unsuccessful ratification bill in 2016, and stated in an email that “It's critical we get the Compact introduced and moving so we can provide certainty for all water users and boost economic development in Northwest Montana. The clock is ticking and I'm ready to go, but we need bipartisan support to get this done.” A spokesperson for Tester said he was awaiting support from the rest of Montana’s delegation.

In response to emailed questions about Daines' current plans regarding the compact, a spokesperson wrote, “the Senator will continue engaging with stakeholders to reach an agreement that avoids litigation and protects the rights of all Montanans. The recent support from the Trump Administration reaffirms the need to reach an agreement without going to court.“

And according to a spokesperson for U.S. Rep. Greg Gianforte, "Greg believes the compact that passed the state legislature has problems we're working to address in the settlement, and that any resolution must provide certainty to water users throughout the state. He'll continue working with stakeholders to find a solution and avoid litigation."

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