Testimony of Terry Backs, St. Ignatius, MT

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FA Note: The proposed CSKT (Confederated Salish and Kootenai Tribes) Compact involves a lot of constitutional and legal issues, including taking existing off-reservation water rights from thousands of irrigators, family farms,  and other legitimate water rights holders, and granting them to the tribes. Below is one testimony submitted at a legislative hearing April 11 in Helena, Montana, discussing the state’s failure to quantify the federal reserved water rights of the compact. THE QUANTIFICATION OF THE TRIBE’S CLAIMS IS THE WHOLE PURPOSE OF CONCLUDING A WATER COMPACT.

Along with this testimony were handouts for the committee members including this chart that included a PARTIAL QUANTIFICATION of the claims in this compact compared to all other awards of water to tribes throughout the United States.

The proposed CSKT Compact passed the Montana House on April 16.

Chairman Bennett and Committee Members

I appreciate the opportunity to speak in opposition to SB262.

This compact was supposed to quantify the federal reserved water rights for the Flathead Reservation. But instead of determining a specific and limited amount of water for that purpose, you are being asked to ratify something far more complicated and overreaching than a simple settlement of water claims.

  • You have already heard that it will transfer bare legal title for irrigation project water to the tribe, and reduce historic deliveries by 50-70%.
  • In addition to taking irrigation water, this compact proposes to convey a hypothetical “tribal reserved water right,” to the United States and CSKT giving them control over the waters of western Montana.

Quantification of the tribe’s claims is the whole purpose of settlement. Other compacts provided that information up front. In CSKT however, it is buried in 1,000 pages of abstracts that are not part of the bill in front of you.

With that in mind, I will focus on just three claims in the appendices, all with a time immemorial priority date. The state recently published a summary of water rights showing the volume of water associated with these claims as not available.[1] The volume of water for these claims is not only available, it is astounding.

Appendix 18 for FLATHEAD LAKE claims a whopping 17.6 million acre feet of water.[2]

This single claim is 2 ½ times more water than awarded to 31 other tribes combined.[3] .

Is 100% of Flathead Lake a reasonable or equitable settlement of water claims?

Appendix 25 for the KOOTENAI RIVER claims 6.3 million acre feet.[4]

Is a water right to two thirds of the annual flow of the Kootenai River, off the reservation, reasonable? [5]

Appendix 27 for the LOWER CLARK FORK RIVER claims 3.6 million acre feet.[6]

Why would the state award a water right off the reservation and outside of the tribe’s ceded territory?

These three claims, 6 pages out of 1,500, barely touch the surface of this compact. Their combined volume is 28 million acre feet of water per year.

This compact is not even in the same universe as 31 other tribal water settlements approved by congress to date whose combined claims total 7 million acre feet of water per year.

Instead of determining a specific quantification of federal reserved water rights on the reservation, for the purpose of the reservation, this compact advances a time immemorial “tribal reserved” water right with tentacles reaching all over western Montana.

I mentioned three claims, but what about the rest? How much water is awarded in this compact, and why has the state failed to provide that information?

Without fully understanding how much water is in this “settlement”, you are literally being asked to sign a blank check and cannot possibly understand the human or financial impacts of this forever document.

Please SAY NO to SB 262.

Thank you.

FOOTNOTES

[1] Summary of Water Rights Quantified by CSKT Montana Compact, 2015, Legislator Information Packet

[2] 2014 Clark Fork and Kootenai River Basins Water Plan page 50 (18,788,352 acf less Kerr Dam storage 1,200,000 acf)

[3] Quantification of Indian Federal Reserved Water Rights in the United States 2015, Concerned Citizens of Western Montana

[4] CSKT Water Compact Appendix 25 daily values converted to acre feet per year (6,249,774)

[5] 2014 Clark Fork and Kootenai River Basins Water Plan, page 53 – Kootenai River annual flow (10,044,398)

[6] CSKT Water Compact Appendix 28, 5,000 cubic feet per second x 724,447 = 3,622,235 acre feet per year