PABLO – Water rights returned to the forefront on the Flathead Indian Reservation on Monday afternoon, when a state legislative committee and the Confederated Salish and Kootenai Tribal Council held a joint meeting in Pablo, and several local irrigation district commissioners held a competing news conference in St. Ignatius.
The irrigators said they called the news conference because their attorney, who was scheduled to address the legislators and Tribal Council, was told CSKT attorneys would object if he tried to discuss an ongoing federal lawsuit filed by the tribes.
“We can’t abide the censorship,” said Jerry Laskody, chairman of the Mission Irrigation District. “It makes no sense to attend. We called this to be able to tell our side.”
The commissioners said their primary objections to a proposed reserved water rights compact for the Flathead Reservation are the ownership of water rights it assigns the tribes, the lack of verification for quantified water, and the establishment of a Unitary Management Board they say would leave irrigators on the reservation without a say in the Flathead Indian Irrigation Project.
Up the road in Pablo, meantime, some speakers said the compact, negotiated over the course of a decade between the state, the federal government and the tribes, will protect water users, erase uncertainties and avoid years, if not decades, of litigation and what one of them called “chaos.”
“We’re in the middle of a mediocre movie called ‘Back to the Future,’ ” said Alan Mikkelsen, a consultant to a law firm that represents the Jocko Irrigation District. “We’re reliving the 1980s and ’90s. The only things missing are a flux capacitor and a DeLorean.”
Back then, Mikkelsen said, irrigators lost “every single case” filed over water rights.
“I know, because I was there,” he told the committee and council. “Without a compact irrigators, and all of us, will lose again.”
The only people who stand to gain if the 2015 Montana Legislature doesn’t approve the compact are lawyers, Mikkelsen said, adding that he’s heard the potential lack of ratification referred to as “an attorney stimulus package.”
If water rights wind up being sorted out in Water Court, Mikkelson said, “all of western Montana and a large portion of eastern Montana” could see the tribes granted “time immemorial” water rights.
“Is this something you want to risk?” he asked legislators, “given the protections that are in the compact?”
In St. Ignatius, Jim Baker, vice chairman of the reservation’s largest irrigation district, the Flathead, said the compact “gives ownership of all water rights to the tribes,” a move he said “is not applicable to any law.”
Bryan Bohn, a Flathead District commissioner, said water quantification is an important issue as well.
“We’ve been told we wouldn’t lose one drop,” Bohn said. “We want that verified.”
Laskody addressed the proposed Unitary Management Board, which would consist of two members appointed by Montana’s governor, two appointed by the Tribal Council and a fifth appointed by that group.
That, Laskody said, is a “broad overreach of tribal sovereignty. (Irrigators) have no vote, no say-so.”
“We own fee land here,” he went on. “We believe water should be administered by the state of Montana,” the same as it is for land in Dillon, Shelby or Forsyth. A Unitary Management Board “violates the Equal Protection Clause of the Constitution. You cannot treat us differently just because of where we live.”
Other commissioners complained about the Bureau of Indian Affairs taking over management of the Flathead Indian Irrigation Project and laying off members of what Flathead commissioner Shane Orien called “the most dedicated, hardworking” crew he’s seen.
But Susan Lake, an irrigator who backs the compact, said the commissioners brought that on themselves when they dismantled a Cooperative Management Entity that oversaw the irrigation project.
State Sen. Bruce Tutvedt, R-Kalispell, called on Montana Gov. Steve Bullock, a Democrat, and Attorney General Tim Fox, a Republican, to take a more active role in promoting passage of the compact.
“We need leaders at high levels to come out and be very clear” about the benefits of the compact, Tutvedt said, adding he believes people who oppose the compact “see victory as going to court.”
Johanna Clark, a clerk for two of the districts, said there are no pro- or anti-compact irrigators, just irrigators who want a compact they can live with.
The commissioners she works for “have a duty to the irrigators who elected them,” Clark said. “They’re not looking to be ugly or racial – they want to come to an agreement.”
Clark was the only opponent of the compact, as written, who spoke at the tribal-legislative meeting, and added, “My boys (the commissioners) didn’t send me.”
After hearing from CSKT Chairman Ron Trahan, Montana Reserved Water Rights Compact Commission attorney Melissa Hornbein, Department of Interior attorney Duane Mecham and Mikkelsen, 10 people spoke in favor of the proposed compact.
They included State Rep. Dan Salomon, R-Ronan, who serves on the compact commission and is also a farmer and irrigator on the reservation.
Salomon said he was only speaking for himself, but he believes passage of the compact “will protect everybody’s rights and uses” and help business thrive.
Bozeman attorney Hertha Lund said, “I and others will have much work for many years” if the compact is not approved, but warned that is not in the best interest of Montanans. Lund said she is preparing a white paper to be distributed to legislators called “Lies, Misinformation and Scare Tactics” that details alleged fallacies in compact opponents’ arguments.
And Moiese irrigator Dick Erb said no one can grow crops with a water right, only with water that is delivered.
“Those who have the strongest views against the compact draw sharp lines between your rights and my rights, your water and my water,” Erb said. “It’s hard to draw a line in water. A cooperative approach is the only way to make it work.”