Our belief in magic and fairy tales typically doesn’t survive until adulthood. For most of us, we are disappointed when Santa Claus fails to survive the ravages of rational investigation and we are relieved when our childhood bogeymen suffer a similar fate. Occasionally, however, for reasons known only to the individual, a belief in magic persists.
Montana is currently witnessing such an occurrence. Opponents of the recently ratified Confederated Salish and Kootenai Tribes (CSKT) water compact have divorced themselves from rational decision-making in favor of a fairy tale with a magical ending. By threatening to litigate the tribal water rights codified in the compact, they hope to overturn more than 100 years of judicial precedence.
Two U.S. Supreme Court cases establish the foundation of tribal reserved water rights. The first, Winans (1905), provided the groundwork for instream flow claims in off-reservation waterways. The second, Winters (1908), established the concept of reserved water rights on a reservation. Both of these cases have served as the foundation for subsequent judicial opinions that have largely expanded the scope of the original decisions in favor of expanded rights for the tribes.
In 1973 the Endangered Species Act (ESA) was passed, further complicating the adjudication of Western water rights. Prior to passage of the ESA, water quantification proceedings centered on consumptive uses for agricultural, industrial and municipal needs. It was routine for entire basins to be annually dewatered. After passage of the ESA, the practice of dewatering basins largely stopped. Independent of our opinions concerning environmental lawsuits, the ESA has a history of successfully establishing new, non-consumptive water rights that protect native fisheries.
In life we encounter conditions we don’t understand, we don’t agree with, or both. In spite of our desire to wish these things away, we know we can’t. Instead, we account for their effects on our future and we move on. In the real world, Winans, Winters and the ESA actually exist. They cannot be made to disappear by sleight of hand or miraculous incantation. Therefore, we must account for them when we examine the benefits of the CSKT water compact.
Ratification of the compact forestalls litigation based on the ESA. Without the compact, environmental groups could litigate statewide — in every basin comprising the ancestral range of the CSKT.
Ratification of the compact ensures that all off-reservation claims east of the continental divide are vacated. Without the compact, these claims would be litigated under the long shadow of the Winans decision and its progeny.
Ratification of the compact provides additional water resources to mitigate shortages and to ensure that current water users retain a right equal to their historical usage. Only compacts can provide additional water resources.
Any proposal to litigate the CSKT’s recently codified reserved water rights remains a fairy tale doomed to end in acrimonious, expensive and ineffectual statewide litigation. Rather than suffer this fate, let’s close the cover on the fairy tale of litigation and support the great work our federal delegation accomplished by ratifying the compact.
Joe Dooling is a rancher, farmer and irrigator in the Helena Valley, and a former congressional candidate.