Montana Gov. Steve Bullock has asked the Flathead County commissioners to reconsider their opposition to the proposed tribal water rights compact.
Commissioners Phil Mitchell and Pam Holmquist voted earlier this month to send a letter to state officials opposing the compact and asking the governor to respond to their concerns.
Commissioner Gary Krueger voted against the letter and supports the proposed compact.
The governor said he believes the issues the two commissioners raised “are rooted in significant misunderstandings about the compact.”
Bullock’s chief legal counsel, Andrew Huff, responded to the commissioners’ concerns in great detail in a written memorandum.
“As the memorandum makes clear, the compact protects the homes, businesses and communities of Flathead County,” Bullock said.
The proposed water-rights compact — approved recently by the Montana Reserved Water Rights Compact Commission — would take steps to quantify the Confederated Salish and Kootenai Tribes’ water rights and obligate the state to spend $55 million to improve the Flathead Indian Irrigation Project.
The compact is the result of more than 10 years of negotiations and must be ratified by the state, the tribes and U.S. Congress. It will be presented to the Legislature for approval during the current session.
“I do not believe that the county’s opposition to the compact is well-founded, for both legal and factual reasons,” Huff said.
He responded to the commissioners’ concerns point by point.
Mitchell said Monday he’s still not satisfied with the response from the Governor’s Office and is drafting another letter this week that will reiterate the commissioners’ continued opposition to the compact as it’s currently written.
No date or time has been scheduled yet for the commissioners to vote on Mitchell’s rebuttal.
Mitchell said he’s simply trying to convey what a majority of Flathead Valley citizens feel about the proposed compact.
“I think they [compact supporters] are stretching what the law says to fit their agenda,” Mitchell said.
Krueger said Bullock’s letter speaks for itself; he continues to support the compact.
Holmquist did not return a phone call.
Regarding the commissioners’ assertion that the proposed compact is the only compact in Montana to include off-reservation water rights, Huff said it’s important to note that at the outset the Confederated Salish and Kootenai Tribes, as part of the proposed compact, agreed to cede the vast majority of their off-reservation water rights claims.
“These claims cover about half the state and would, if pressed by CSKT, result in significant disruption to the statewide adjudication proceedings,” he said. “Instead, the compact recognizes eight off-reservation water rights to be held by CSKT and 14 to be held jointly by CSKT and the state. CSKT has agreed to exercise these rights pursuant to carefully crafted limitations, which mitigate or eliminate impacts to existing water users.”
Huff continued to explain that while the Confederated Salish and Kootenai Tribes compact is the only one to include off-reservation water rights derived from treaty fishing rights, the reason for including this kind of off-reservation right is straightforward: “CSKT is the only tribe in Montana to have entered into a ‘Stevens Treaty.’”
The Hellgate Treaty is one of several treaties negotiated in the 1850s between the federal government and tribes within the Columbia River Basin, Huff said. These treaties, negotiated by federal territorial governor Isaac Stevens, have been held by the U.S. Supreme Court to preserve meaningful off-reservation fishing rights for tribes.
“The [commissioners] assertion that these rights are ‘a new type of water right,’ and that they are ‘not supported by the Treaty of Hellgate’ is legally incorrect,” Huff said in his memo.
He addressed the commissioners’ belief that the compact will have “dire consequences” to Flathead County citizens and businesses by saying the county hasn’t provided any reason or facts to support the claim. Huff said just the opposite is true, that it will protect citizens and businesses.
“Without the compact, CSKT will be able to ‘call’ any non-tribal user of water, including water for homes, businesses, city and towns, and farms both on and off the reservation, including Flathead County.
“With the compact, all non-irrigation water users are completely protected from tribal calls,” Huff continued.
Huff also addressed the two commissioners’ assertion that the compact violates the state Constitution. He argued that by providing a water administration framework, the compact ends an 18-year administrative void and brings the reservation into compliance with Article IX of the Constitution.
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