Opponents of the Confederated Salish and Kootenai Tribes water compact now say they have an alternative.
It aims to replace the existing agreement that quantifies the tribes’ water rights on and off the Flathead Indian Reservation, which narrowly passed the Montana Legislature in 2015 and now awaits federal and tribal ratification. Several of its provisions were hotly criticized, and a proposed replacement is now circulating.
During the first full week in November, some Flathead and Mission Valley newspapers carried an insert promoting a “People’s Compact” that it says “throws off the chains of a controversial, divisive, and failed effort by government to resolve the federal reserved water rights of the United States/CSKT.”
Kate Vandemoer, chairman of the board of the Montana Land and Water Alliance — which opposes the present compact — said 60,000 of these pamphlets had been printed. The anti-compact group’s vice president, Jerry Laskody, recently told a Ronan meeting that it had been preparing lawsuits against the pact, but decided to instead craft an alternative bill in May.
“In a matter of two weeks, we put this proposed compact together, put a comparison chart between this compact and the old compact together, plus [U.S. Sen. Jon] Tester’s bill” for federal ratification, introduced in 2016.
This newsletter bills the “People’s Compact” as a clean break with the already-negotiated one, and says that it leaves several of that pact’s most controversial elements behind.
But the actual draft legislation and technical paper aren’t yet publically available. At the meeting, Vandemoer explained that it was still undergoing legal review. “We have an issue with basically allowing anyone, especially our tribes, to basically start working with this and working against it.”
On Wednesday, Vandemoer told the Missoulian she wasn’t sure when it would be completed. But she stressed that “our intent is really to heal” with this new agreement, and pointed out that it would settle a U.S. Court of Claims grievance that the tribes filed in 1951.
Already, it’s gained momentum. Vandemoer was joined onstage at the meeting by another compact opponent, Terry Backs with Concerned Citizens of Western Montana, and several other area residents and elected officials: State Reps. Mark Noland, Carl Glimm and Kerry White, State Sens. Al Olszewski and Keith Regier, and Flathead County Commissioner-elect Randy Brohdel.
Olszewski also acknowledged former Montana State Rep. Rick Jore, whose stances on Indian issues have been criticized by the Montana Human Rights Network, and Lake County Commissioners Gale Decker and Dave Stipe in the audience. Neither Stipe nor Decker replied to a request for comment.
White, R-Bozeman, said he had discussed the People’s Compact with the staffs of both U.S. Rep. Greg Gianforte and Sen. Steve Daines. “I showed them that and they are so excited.”
In an emailed statement, Daines said “I welcome the effort of the opponents of the current proposed settlement for bringing new ideas to the table for a path forward. I will continue working and listening to all stakeholders to help reach a fair solution that can bring Montanans together.”
A spokesman for Gianforte wrote that “Greg has met with Rep. White on many occasions, appreciates his ideas, and always welcomes input from Montanans.”
Vandemoer said the group aims to present the People’s Compact to Congress by the end of the year. At the presentation meeting, Olszewski said the political landscape was ripe for a new pact. “This old compact was designed to address the interests of a tribal government and the governor’s office.”
“It was designed that it would go to the federal government under the president (sic) of Hillary Clinton. … Elections have consequences. It’s a new world, it’s a different paradigm, and what we need is a different compact that meets the new realities.”
Despite this enthusiasm, the People’s Compact faces a daunting path forward. In Vandemoer’s view, Montana’s part of the process “is pretty much done.” Asked about the feasibility of changing the compact at the federal level, she said that “Montana compacts that go forward to Congress are always changed by Congress.”
Indian water compacts are ratified by federal bills that may include funds and address other issues. But water rights attorney Colleen Coyle said that any changes to the compact itself would require the consent of the state, the tribes and the federal government. “It would have to go through not only the signing parties again, it would have to go through the [Montana] Legislature again” said Coyle, a former senior water master with the Montana Water Court.
Hertha Lund, an attorney who lobbied for non-Indian irrigators during the compact negotiation, concurs. Committing the state or tribes to a compact they hadn’t agreed to, she said, “would be like me negotiating to buy a car and then, when I go to pick it up, they give me a buggy.”
Lund, who now owns Bozeman-based firm Lund Law, considers starting over “a waste of money and time and effort.”
Other pitfalls could lie in the compact’s own provisions. For instance, it drops what may be the negotiated agreement’s most controversial aspect: rights to instream flows from off the reservation.
The Salish and Kootenai Tribes are the only ones in Montana to have the type of treaty that underpins these rights, and tribal spokesperson Rob McDonald noted in an email that they were grounded in both that 1855 treaty and subsequent case law.
While the tribes and U.S. Department of Justice have filed 10,000 claims for these rights across the state, they agreed to a smaller share in the compact: ownership of 10 and co-ownership of 87 more. “These in-stream flow rights in the Compact ensure a minimal volume of water in some of western Montana’s most important fisheries and have significant protections for water users on those streams,” McDonald wrote.
The 10,000 claims are currently stayed pending approval of the existing compact. According to the People’s Compact promotional flyer, “its terms require off-reservation claims be withdrawn from the adjudication proceedings.”
But McDonald said that “without the Compact, the Tribes would be required to pursue their water rights in Court. … Moreover, the Tribes would have a legal right to enforce those rights until they are finally adjudicated by the Montana Water Court — an endeavor that could take decades.”
If that comes to pass, Lund warned, “they will cost other water users. … hundreds of thousands of dollars to defend their water rights unnecessarily.”
On the Flathead Irrigation District, farmer Susan Lake worries she’ll be one of those users. Dismissing the People’s Compact as “propaganda,” she said that “this is another piece that could put a nail in the coffin of the actual compact.” If that happens, she predicted that “our farm isn’t going to survive 20 years of litigation while we wait to see if we have water.”
The agreement she hopes will avert that outcome — the state-ratified compact — is still awaiting federal and tribal agreement.
As recently reported, the tribes are still negotiating with the Department of the Interior over the settlement legislation. Marnee Banks, a spokesperson for Tester, Montana's senior U.S. senator, wrote that “Jon supports the CSKT Water Compact. He takes his lead from the tribes and the numerous stakeholders, who spent years bringing people together to provide certainty for all water users and boost economic development.”
While McDonald said it would be “premature” to comment on the proposal itself before it’s released, he noted that “for the first time these long-time opponents have acknowledged a need for a compact. Their admission of a need for a compact is not without meaning.
“We are optimistic that the support for a negotiated settlement continues to be growing throughout Montana. … We will continue to educate folks on these issues and are open to improved dialogue with those who have opposed the Compact in the past."