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