Water negotiations stall

PABLO — There are those who felt that not much was accomplished at the latest negotiation session of the Montana Reserve Water Rights Compact Commission, held Dec. 12 in Pablo. A sense of tension filled the air, accentuating the lack of concrete gain. As one citizen said, it’s as if the officials were all there for show, but do their work elsewhere, behind closed doors. Clayton Matt, head of the tribal Natural Resources department, reminded members of the group “the Compact Commission sunsets in 2009, and our goal is to achieve a settlement for the 2009 legislature.” The current meeting provided a lot of background, as well as explaining possible glitches with a plan to use Hungry Horse Reservoir as an alternative water source under the proposed settlement agreement with the Tribes.
According to Jay Weiner, lawyer for the state of Montana, the compact to be reached will quantify tribal water rights, and determine how Indian and non-Indian rights will be administered on the reservation. Any agreement must then be ratified by Congress.
James Steele, Jr., chairman of the Confederated Salish and Kootenai tribal council, offered the philosophy behind the Tribes’ position.
“The agreement the Salish and Kootenai people signed in 1855 was for this to be an exclusive homeland for the Salish and Kootenai people. Our tribal leaders opposed very vigorously the opening of our reservation to settlement. We do not like that at all.”
The Hellgate Treaty, he said, “was a government to government treaty” and “had specific provisions in it” regarding the use of the reservation’s natural resources.
“We were told this was the law of the land,” but that law has since been “modified against our wishes.”
Matt explained that, in negotiations, the Tribes start from the point of view that “in a claims setting, the Tribes can claim all rights to all water on the reservation.”
Steele acknowledged the water rights negotiations affect a larger number of non-Indians than native people on the reservation, but emphasized “The negotiations are to protect the tribal right to the water on the reservation, to the surface and subsurface water.”
But Matt countered, “We also recognize the water users on the reservation. That’s why, at the last meeting, the Tribes proposed a uniform priority date for the irrigation project.”
To underscore the importance of settling the issue, Steele told the commission if a settlement isn’t reached before the compact expires, “I think we’ll see the largest lawyer employment program the west has ever seen.”
Matt agreed. “We are prepared to go to court, and are preparing to go to court, should we have to go that route.”
Both Matt and Steele’s remarks reinforced the Tribes’ stand on the issue.
Matt said negotiating an agreement before the sunset date “would be ideal.”
The federal team would like to see something proposed to Congress in 2008, said Bill Faust, division of water manager for the Tribes. Chris Tweeten, chair of the Reserve Water Rights Compact Commission, said the goal of coming to agreement “is a very worthy task to undertake.” But, he said, “It has not been our objective on the state side to get this compact done for congressional approval in 2008.” The Tribe’s deadline, according to Faust, is the compact sunset date, June of 2009.
Tweeten said “We are aiming at submitting something to the Montana legislature in 2009. Our deadline for that could be as late as March or April of 2009, after the bill introduction deadlines have passed in the legislature.” He proposed using a suspension of rules while the legislature is underway to introduce any settlement proposal the tribes and the state may come to.
Tweeten said bluntly, from the state’s point of view, “Our goal has never been to try to do something by 2008.”
“We appreciate and support the idea of making a to-do list, but not deadlines or expectations of when those are going to be finished,” he said.
As justification, Tweeten mentioned “We’ll have two, if not three, Montana compact proposals for congress seeking funding in the 2008 cycle.”
“We’ve been told under the current administration, if these compacts require significant funding, they will not be considered by the current administration.”
The state intends to present compacts with the Crow, Fort Belknap and Blackfeet tribes to Congress this coming year.
Typically, as part of a water rights settlement, large sums of money are appropriated by congress to mitigate the loss of tribal water rights.
Essentially, full or partial rights to the water are bought by the federal government, to ascertain all users on the affected reservations have access to the resource.
The payouts requested for those rights have risen exponentially the past ten years, said Susan Cottingham, Staff Director for the Compact Commission.
Where the United States government paid $50 million for certain settlements in 1999, Cottingham said, the Fort Belknap request alone is $255 million. The Crow settlement is more than twice that.
“The expectation level has gone up,” Cottingham said, describing the increased funding requests.
Duane Mecham, the Federal representative, updated those present on the quest to include Hungry Horse Reservoir in the CSKT settlement.
Hungry Horse is being considered as “access to an additional water source,” he said.
The water is necessary, said Cottingham, to provide an alternate source of irrigation water for non-Indian users of the Flathead Irrigation Project, should other water sources become unavailable. It also would provide water to tribal users in times of scarcity.
Utilizing a water source outside the basin in question is common in these negotiations, Cottingham said, especially if the water is unencumbered and under federal jurisdiction, as Hungry Horse is.
The only potential glitch in utilizing Hungry Horse reservoir is its status in the larger Columbia Basin river system.
Weiner said Hungry Horse is currently “managed predominantly for downstream users.”
Hungry horse sits at the top of the Federal Columbia river power system, which involves Oregon, Washington, tribes and “an alphabet soup of acronyms,” Weiner said.
“Because the Hungry Horse facility is part of a larger grouping of federal resources called the Columbia water power source,” Mecham said, “there are issues with salmon and power generation with these waters.” Mecham said there are seven cases before the Federal judge in Portland revisiting Federal plans for salmon.
The state’s goal at this point is to “minimize the opposition we’re likely to see from downstream states,” Weiner said.
Other kinks to iron out in a final plan between the state and the Tribes include adjusting allotments for all users during years of drought. This plan, called “shared shortages,” has not yet been finalized.
Data management is another factor in the continued negotiations.
The tribes have been “seeking funding to develop new ground water data,” Matt said. Clayton: “The irrigation project constitutes the largest single user on the reservation. Understanding the scope of that is key to understanding all our water use issues on the reservation.”
Cottingham said the state would be happy to pitch in with funding the research, after receiving a copy of the Tribes’ proposal. “We do have some money we could contribute towards it if we know what it’s for,” Cottingham said.
“How we define the technical and legal issues makes this process work,” said Matt. “We’re looking forward to more discussion.”
“These negotiations need to proceed apace. With the compact sunsetting, we need to proceed in earnest,” Matt said.
Despite the state’s reluctance to set a goal for completion of negotiations, Cottingham said, “If we start laying out this work plan and a start looking at all the tasks we need to do, looking at the deadline, we should be having these meeting every month. I know that puts an increased burden on legal and technical folks, but we need to keep our feet to the fire.”
Matt suggested the team meet the last weds of every month. This was the last scheduled public session of the process.
As a cap to the meeting, public comment was taken. A realtor suggested extending the compact through 2010 to accommodate upcoming changes in the federal administration. Water user Rory Horning probably spoke for the bulk of the irrigation project users, however, when he had the last word: “We all appreciate the fact you want to get it right,” he told the commission, “but I’ve watched you for years, and until you complete your work, our land rights are not complete. Until you (finish the negotiations), you impact our communities.”