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Flathead water rights compact

ST. IGNATIUS – By an 8-2 vote, the board of directors of the Flathead Joint Board of Control this week approved a resolution that “strongly opposes” passage of the proposed Confederated Salish and Kootenai Tribes’ water rights compact.

The move by the organization that represents irrigators on the Flathead Indian Reservation comes as the 2015 Montana Legislature prepares to convene in Helena on Monday, where the compact will be one of the key issues considered this session.

“Here we are, and our issues are still not being addressed,” said board member Jerry Laskody, who has long opposed the compact. “We were totally left out of the negotiations. That’s very disconcerting for us. The governor and attorney general are declaring success without our concurrence. This has been the tribes’ compact from Day One.”

A previous compact was rejected by the 2013 Legislature. Negotiations between the tribes, state and federal government resumed after that, with changes made that proponents hope will secure its passage.

If the Legislature fails to approve the compact, proponents say it will take years, if not decades, to sort out water rights, create uncertainty for other water users and property owners, with the tribes prepared to file for thousands of water rights in the state.

Now a dozen years in the making, the proposed compact quantifies the tribes’ water rights and also includes millions of dollars to improve the Flathead Indian Irrigation Project on the reservation.

But, Laskody said, “We still believe there are unconstitutional parts of the compact that are going to get the state in trouble.”

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The resolution identifies three issues in the compact the joint board opposes.

It says the re-negotiated compact:

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  • Requires individual landowners and irrigators to “relinquish any and all claims to water rights in the (Flathead Indian Irrigation Project), without their agreement or consent.”
  • “Inherently acknowledges the initial (Water Use Agreement) was flawed … and now replaces it with ‘adaptive management,’ a learning-based management method which implements water allocation by trial and error, while disregarding historical use.”
  • A Unitary Management Ordinance and Unitary Management Board “arguably violate the Montana Constitution and the Constitution of the United States by requiring non-tribal property owners and citizens of the state of Montana who reside on fee land within the Flathead Indian Reservation’s boundaries, some 80 percent of the actual population, to be governed by a different law of water review, adjudication and administration than the rest of Montana.”

It also fails to “sufficiently define a ‘Court of Competent Jurisdiction,’ thereby creating a judicial nightmare likely to result in different courts issuing conflicting decisions and opinions as to water and irrigation rights and use within the (Flathead Indian Irrigation Project),” the resolution holds.

The resolution opposing the compact comes three weeks after a statewide group of farmers, ranchers and business owners, called Farmers and Ranchers for Montana, formed to urge the Legislature to pass the compact and provide certainty for water rights in the state.

“I’m convinced that it’s a fair compact and that it treats the tribes, as well as people on the reservation and off the reservation fairly,” co-chairman Lorents Grosfield, a Big Timber rancher, said.

“It’s a way to avoid litigation and loss of property rights, moving forward in perpetuity,” said another co-chair, state Rep. Scott Reichner, R-Bigfork, who voted against the compact in 2013 but supports the re-negotiated version.

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