Water compact debates extensive in House

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HELENA — A 10-hour committee hearing drew hundreds of citizens to testify at the state Capitol Saturday, with numbers roughly split on the contentious bill that would ratify the Confederated Salish and Kootenai Tribes’ water compact.

After passing the Senate last month, Senate Bill 262 received its first hearing before the House Judiciary Committee, which tabled a previous version of the water rights agreement last session. The compact is the product of more than a decade of negotiations to quantify the tribes’ water rights, and comes with a $55 million price tag to the state. The latest version results from a round of negotiations opened by the state last year to provide irrigators with added protections.

Following more than seven hours of testimony, the committee questioned tribal members, lawyers and experts on both sides of the issue, focusing in part on the procedural aspects of how the compact had evolved.

Rep. Keith Regier, R-Kalispell, asked compact commission attorney Melissa Hornbein to explain how the compact commission had met the basic requirements as set forward by law.

“As I see it, there were two things the compact commission was supposed to do: determine the purpose [of the reservation] and quantify how much water was necessary to satisfy that purpose,” Regier said.

Hornbein responded that for each of the water compacts with Montana tribes, the commission had relied on court interpretations of the treaty creating the reservation. She added that only a court can officially make that determination, and that a working agreement of the reservation’s purpose was agreed on by the negotiating parties. 

She said that the quantifications for each water right were explicitly outlined in the appendices, and no total amount of water could be defined because of the different types of water rights quantified in the compact.

“It would essentially be like trying to add apples and oranges to get a simple number,” she said. “That’s not how the water court does it when it’s quantifying water basins, either.”

Rep. Matthew Monforton, R-Bozeman, asked state attorney Corey Swanson why the Legislature was being told it could not amend the compact bill in its ratification process, but the federal government’s ratification could include a renegotiation of some of the terms.

Swanson answered that changes could be made to federal policy that would not affect the state, adding, “It’s not a renegotiation; it may be an adjustment of language to fit federal policy or other federal requirements.”

Opening the meeting, committee chairman Jerry Bennett, R-Libby, noted the unprecedented nature of the hearing, in which proponents and opponents to the bill were given 3 1/2 hours apiece for their testimony.

“I just knew how many people were coming to testify, and I wanted to have everybody represented to the best of our ability, both proponents and opponents,” he said after the hearing.

Testimony came from a multitude of Western Montana residents, including irrigators on and off the reservation, tribal members, current and former state legislators, and other experts and officials from the local, state and federal levels. Many had begun lining up to testify more than two hours before the hearing was scheduled to start. Representing the Flathead Joint Board of Control, the chairs of the on-reservation irrigation board said they had arrived early to ensure they would be able to speak to an issue central to their constituents’ livelihood.

“We’re the elected representatives of those irrigators and we’re being left out of the process,” said Jerry Laskody, vice-chairman of the board, adding he was motivated by “the fact that the tribe assigns our rights [under the compact] without due process and the quantification of water for irrigators is at least 55 percent less than I’ve been using for years.”

However, many proponents held that the compact, a negotiated settlement between the state, tribes and federal government, represents more than a fair deal and repeatedly pointed to the extensive litigation that would ensue if the compact does not pass. In the absence of an agreement, the tribes are required by state law to file their adjudication claims — potentially in the thousands — in the state water court by the end of June.

“We have the right to all of our water, which covers about two-thirds of the state of Montana, and we can prove it,” said Vernon Finley, the tribes’ current chairman. “We gave up a lot of things we didn’t have to and we can regain that if we go to court.”

Many speakers disagreed that the compact could provide more certainty about their water rights, with former state Sen. Verdell Jackson of Kalispell arguing just the opposite.

“The uncertainty of having adequate water will dramatically reduce the value of this land, bankrupting most of the irrigators,” he said. “This does target irrigators, and those irrigators are going to go out of business and this land is going to be for sale, on the reservation, for pennies on the dollar.”

Tribal attorney John Carter in turn referred to a case in Oregon, where the Klamath Tribe won far-ranging off-reservation water rights through that state’s adjudication process, with seniority over non-tribal members.

“They can call and are in the process of calling off-reservation irrigators who have, by definition, junior water rights,” he said. 

Hornbein said the compact would avoid that outcome through protections for irrigators that the negotiators built into the new version of the compact, including protections from the tribes using their senior water rights to “call,” or curtail the water uses of some junior water rights holders.

She also laid out the constitutional case for off-reservation water rights, referencing court cases that have affirmed the tribes’ rights to enough water to serve the purposes of the reservation and to have their arguments given substantial deference by the courts.

However, both she and Swanson acknowledge conflicting outcomes by state Supreme Courts to that language, with the Yakima Tribe in Washington getting significant off-reservation rights, and the Nez Perce Tribe in Idaho receiving no off-reservation rights under identical language in the treaties.

Ultimately, the Nez Perce appealed that ruling and settled the litigation out of court, receiving some off-reservation rights as a result, but Sen. Jennifer Fielder, R-Thompson Falls, noted in her testimony that those water rights carried a 2004 priority date, which would have precluded most of those water bodies from a call.

The constitutionality of the compact has been a frequent target of compact opponents, and lawyers from the two sides were at odds over whether the compact would constitute a taking.

Dale Schowengerdt, the state solicitor general, said the law was clear that a regulatory taking could only apply if the change in water rights had fully devalued property, and suggested the compact could instead add value by providing certainty regarding a property owner’s water rights. Kirsten Omvig, an attorney with Rocky Mountain Law Partners, disagreed, stating that the U.S. Supreme Court has recognized partial takings, wherein a property owner would have to be compensated.

Omvig also called the compact a violation of due process, as the unitary management board created in the compact would subject non-tribal irrigators to the authority of political appointees, half by the state and half by the tribes.

Hornbein responded to this by referring to the U.S. Supreme Court case regarding Montana’s management of the Flathead Indian Reservation’s wildlife management, in which the high court upheld a similar commission set up by the state to manage fish and game on the reservation.

“The state is under a federal obligation to recognize tribal treaties,” she said.

With the legislative session nearing its end, the compact has been no exception to last-minute parliamentary maneuvering. However, tribal attorney Rhonda Swaney addressed what she characterized as a different type of political game, referring to a lobbying complaint filed against the tribes April 3 with the state commissioner of political practices. She said the tribes are still reviewing the complaint, but maintained no wrongdoing on their part.

“Please consider these attacks … for what they are. They are distractions. They want to keep you from addressing the compact’s contents,” Swaney said.

Sen. Janna Taylor, R-Dayton, who fought the compact in the Senate, said there was a lot of money involved in pushing passage of the compact, and likened the effort to legislation that deregulated the energy industry in the late ’90s.

“That was a huge mistake, and you know what? There was a huge lobbying effort for deregulation,” she said “But there was a big difference. We made a few changes and tried to backtrack it and fix it. This is forever.”

Sen. Chas Vincent, R-Libby, who is sponsoring the bill, closed the hearing by reiterating his stance that political attacks and misinformation were distracting from the issues at stake, and urged the committee to think hard about the impacts to their constituents if the compact fails.

“Tell the person who has to go hire an attorney and object to the [tribes’] claim, that ‘It’s alright, it’ll get dismissed.’”

Comparing the tribes’ chances of successful litigation to environmental groups suing against timber sales, he added, “I can disagree about every logging suit in the 9th Circuit Court, but that doesn’t have a damn thing to do with the sawmills that I don’t have anymore.”

The Judiciary Committee will vote on the bill during their next meeting on Monday at 9 a.m.

 

Reporter Samuel Wilson can be reached at 758-4407 or by email at swilson@dailyinterlake.com

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