GOT WATER? HOW ABOUT THE RIGHT TO USE IT?

Print Friendly, PDF & Email

FA Note:  This arti­cle pro­vides back­ground for the sub­se­quent post, “CSKT Com­pact Breach­es State Sov­er­eign­ty”. Agen­da 21, Sec­tion IICONSERVATION AND MANAGEMENT OF RESOURCES FOR DEVELOPMENT, calls for con­trol of ALL nat­ur­al resources by the UN’s Depart­ment of Sus­tain­able Deveop­ment, through local indige­nous peo­ples, as with the ongo­ing efforts to remove all four Kla­math Riv­er dams in South­ern Oregon/Northern Cal­i­for­nia.

cropped-800px-clark_forkThe goal of this web­site is to pro­vide a means for west­ern Mon­tanans to learn about the Flat­head Reser­va­tion or Con­fed­er­at­ed Sal­ish and Koote­nai Tribes Fed­er­al Reserved  Water Com­pact nego­ti­at­ed between the state of Mon­tana, the fed­er­al gov­ern­ment and the Con­fed­er­at­ed Sal­ish and Koote­nai tribes.

This prod­uct of more than a decade of nego­ti­a­tions is a 1,200 plus page doc­u­ment that will impact every­one liv­ing in west­ern Mon­tana. Do not be com­pla­cent.  Do not be fooled.  It is not just a Flat­head Indi­an Reser­va­tion issue.

This site was estab­lished as a means to com­mu­ni­cate to peo­ple through­out west­ern Mon­tana, and should they so choose, to express their opin­ions, con­cerns, com­ments, and sug­ges­tions about the com­pact.

The pro­posed com­pact includes 3 impor­tant doc­u­ments and a mul­ti­tude of water abstracts / appen­dices you should be aware of and informed about, the Com­pact, the Irri­ga­tor Water Use Agree­ment and the Uni­tary Man­age­ment Ordi­nance:

The Reserved Water Rights Compact

This doc­u­ment is sup­posed to QUANTIFY the fed­er­al reserved water right for the Flat­head Indi­an Reser­va­tion.  The cur­rent pro­posed com­pact was com­plet­ed in Feb­ru­ary 2013 and con­sists of rough­ly 1,400 pages with the appen­dices and maps.  Some­thing strik­ing about the com­pact is that it does not pro­vide the quan­tifi­ca­tion of the amount of water nec­es­sary to ful­fill the pur­pose of the reser­va­tion.  This is the very pur­pose of nego­ti­a­tions.

The com­pact begins with an incor­rect def­i­n­i­tion of the reser­va­tion that paves the way for the expan­sive tak­ing of water with­in reser­va­tion bound­aries:  all land with­in the exte­ri­or bound­aries of the Indi­an Reser­va­tion estab­lished under the July 16, 1855 Treaty of Hell­gate, notwith­stand­ing the issuance of any patent, and includ­ing rights-of-way run­ning through the Reser­va­tion.”   This flawed premise ignores the pri­vate prop­er­ty of 80% of the reservation’s pop­u­la­tion that is non-Indi­an, and is used by the state as the foun­da­tion­al base upon which this com­pact is built.  It is used to ratio­nal­ize giv­ing all water run­ning through and under the reser­va­tion to the CSKT.  Addi­tion­al­ly the com­pact gives the fed­er­al gov­ern­ment time immemo­r­i­al water rights for every drop of water in Flat­head Lake, it forces the relin­quish­ment of ALL the water in the Flat­head Irri­ga­tion project, and con­cedes sig­nif­i­cant instream flows with var­i­ous pri­or­i­ty dates through­out 11 coun­ties in west­ern Mon­tana in the Clark Fork and Koote­nai Riv­er basins.

The com­pact com­mis­sion has refused to do any impact stud­ies on these doc­u­ments to help the pub­lic and deci­sion mak­ers such as leg­is­la­tors under­stand its envi­ron­men­tal, eco­nom­ic and legal impacts.  In oth­er words, they have not pro­vid­ed enough infor­ma­tion for peo­ple to tru­ly under­stand its impli­ca­tions.

Remem­ber, for all intents and pur­pos­es this is a FOREVER DOCUMENT, and we only have one chance to get it right.

Flathead Irrigation Project (FIP) Water Use Agreement

The Water Use Agree­ment (WUA) for the Flat­head Irri­ga­tion Project was nego­ti­at­ed between the Flat­head Joint Con­trol Board and the Unit­ed States / CSKT, but because of lit­i­ga­tion, it was nev­er for­mal­ly approved - this doc­u­ment was once tout­ed to be an impor­tant part of the set­tle­ment because it pre­sent­ed a “major piece of irri­ga­tor pro­tec­tions.”  It was  intend­ed to address a large piece of the puz­zle: how water rights and usage will be defined for the Flat­head Irri­ga­tion Project going for­ward.

The cur­rent iter­a­tion of this doc­u­ment requires irri­ga­tors RELINQUISH their project water rights to the tribe (note the word relin­quish, not make junior), in exchange for mon­ey for improve­ments (maybe), and an allot­ment of water that many irri­ga­tors say will not be enough for their oper­a­tions to sur­vive.  Lit­i­ga­tion on this com­po­nent of the com­pact result­ed in a dis­trict court judge rul­ing that this agree­ment is an uncon­sti­tu­tion­al tak­ing with­out com­pen­sa­tion.  While the Mon­tana Supreme Court sub­se­quent­ly over­turned por­tions of this rul­ing, the “uncon­sti­tu­tion­al tak­ing” lan­guage still stands.

This legal action by irri­ga­tors forced com­pact com­mis­sion into dis­cus­sion of “oth­er options” to this agree­ment.  The state has con­veyed to the pub­lic this is a “pri­vate” agree­ment that they are not part of.  FOIA requests con­cern­ing this agree­ment, and com­ments made by the irri­ga­tion dis­trict attor­ney indi­cate oth­er­wise.

We have asked if this agree­ment is mere­ly a red her­ring because the com­pact is sup­posed to be about quan­ti­fy­ing the fed­er­al reserved water rights for the tribe, not irrigator’s water rights.  It has served to focus peo­ple on talk­ing about how much water irri­ga­tors need for their oper­a­tions rather than dis­cussing the fact that irri­ga­tors were being forced to relin­quish their project water rights, and that all water in the project was being giv­en to the tribes.

The Unitary Management Ordinance 

This doc­u­ment will also be includ­ed in the com­pact as an appen­dix.  It for­ev­er ban­ish­es the state of Mon­tana from admin­is­ter­ing water with­in the exte­ri­or bound­aries of the reser­va­tion, and is the most egre­gious aspect of the com­pact.  It pro­pos­es a Uni­tary Man­age­ment Board that will deter­mine how all water issues (state, fed­er­al and trib­al) are man­aged with­in reser­va­tion bound­aries.  It also is a bla­tant vio­la­tion of the equal pro­tec­tion claus­es of the Mon­tana and Unit­ed States con­sti­tu­tions.

If approved, it will set a com­plete­ly new prece­dent and will place 23,000 non-Indi­ans liv­ing on the reser­va­tion under trib­al juris­dic­tion for their water rights, and has far reach­ing impli­ca­tions in our coun­try.

If you live with­in the reser­va­tion bound­aries, it’s imper­a­tive that you under­stand this doc­u­ment and the impact it will have on exist­ing and new uses of water going for­ward.  Don’t let the state of Mon­tana sur­ren­der your con­sti­tu­tion­al rights and pro­tec­tions con­cern­ing water rights to a polit­i­cal and like­ly trib­al juris­dic­tion.

NOTE:  DO YOUR OWN HOMEWORK ON THIS COMPACT.  TAKE NOTHING AT FACE VALUE. WE CERTAINLY DON’T HAVE ALL THE ANSWERS, BUT PROMISE TO DO OUR BEST TO PROVIDE YOU WITH INFORMATION TO UNDERSTAND THE DIRECTION THIS IS HEADED

The com­pact doc­u­ments are avail­able on the DNRC web­site for pub­lic view­ing: http://dnrc.mt.gov/rwrcc/Compacts/CSKT/

WE STRONGLY ENCOURAGE YOU TO CONTACT THE COMMISSION WITH ANY QUESTIONS, COMMENTS AND CONCERNS YOU MIGHT HAVE CONCERNING THIS COMPACTBE SURE TO ASK THEM FOR FACTS, NOT TALKING POINTS

Thanks for check­ing us out, please share this site with oth­ers.

GET STARTED BY SELECTING AN OPTION AT THE TOP OF THIS PAGE, or CHOOSING A POST ON THE LEFT SIDE OF THIS PAGE.   WE APPRECIATE AND WELCOME YOUR SUPPORT AND PARTICIPATION.

Please donate to our efforts!