by Colin Gaiser
Daily Inter Lake | January 19, 2020 12:00 AM

Since being introduced in early December by Sen. Steve Daines, R-Mont., the Montana Water Rights Protection Act has drawn strong opinions both for and against the landmark agreement.

Lake County commissioners are concerned about the deal, while public officials including State Sen. Al Olszewski, R-Kalispell, and State Sen. Dee Brown, R-Hungry Horse, have provided louder vocal opposition.

“I am completely opposed to Sen. Daines’ legislation because of its devastating impact upon the sovereignty of the state of Montana and its western counties,” Olszewski wrote in a Jan. 12 opinion piece in the Daily Inter Lake.

The act, which offers the framework for a settlement between the Confederated Salish and Kootenai Tribes and the federal government on water-rights claims, was referred to the Committee on Indian Affairs in early December after being brought to the Senate floor.

It received bipartisan support, including a favorable nod from Sen. Jon Tester, D-Mont., who introduced the CSKT Water Compact to the Senate in 2016. That version stalled due to a lack of support across the aisle.

But through the new proposed act, the Tribes agree to relinquish 97% of their water-rights claims. According to Sen. Daines’ office, 2.7% of remaining claims will be co-owned by the state of Montana and the remaining 0.3% will be limited to protecting fishing habitat.

Congress would provide the Tribes with $1.9 billion for damages and rehabilitation of the Flathead Indian Irrigation Project. This money would be held in a trust by the Department of the Interior until the Tribes develop a spending plan.

The act would also transfer management of the National Bison Range from the U.S. Fish and Wildlife Service to the Tribes.

This most recent and successful version of the water compact has not alleviated many public officials’ concerns.

Lake County Commissioner Bill Barron, who served two terms as Lake County Sheriff, is worried about “right-of-way issues” and the effect the influx of new residents, arriving for jobs with the irrigation project, would have on Lake County.

Barron said it is “an unfortunate position the government has put us in.”

He thinks the act needs to clarify right-of-way concerns, and said the way he interprets Daines’ proposed legislation, the Tribes receive control of right-of-ways, meaning some Lake County residents might need a permit to reach their own property.

“I am not anti-Tribe,” he said. “This is a Lake County issue.”

He is also concerned about the number of people who would come for construction jobs with the Flathead Irrigation Project. According to a recent report by Cascade Economics on the regional economic impacts of the water settlement, construction would bring 500 permanent and 5,700 temporary jobs to the area.

“Those people are going to come from out of area … mostly tribal people,” Barron claimed.

He said the Bakken Oil Fields in North Dakota and Eastern Montana offered an example of what might happen in Lake County, as he believed drug cartels would target the county and “be here in force.”

Meanwhile, the county is seeking a mill levy increase to expand its current jail facility. Barron is concerned the jail would still be too small to cope with the increase in crime he thinks could come with the new residents.

“We’re sunk before we started” on the jail project, he said.

Lake County Commissioner Dave Stipe said he is concerned about what will happen to people who have state leases on Flathead Lake, as well as the impact on state parks such as Big Arm and Finley Point, which are located within the reservation boundaries.

“People should know what’s happening to them,” Stipe said.

Sen. Daines’ office sent an email Jan. 10 attempting to clarify what it called “confusion and misinformation.”

“The MWRPA (Montana Water Rights Protection Act) does not extend tribal jurisdiction over county roads or rights-of-way. MWRPA helps facilitate rehabilitation of the FIIP [Flathead Indian Irrigation Project] and will have no bearing on any current court proceeding,” the press release said.

Some Mission Valley farmers the Inter Lake spoke to expressed their support for the act, including Dave Hadden, who owns Lower Crossing Farm near St. Ignatius. Hadden’s son, Jesse, is running the farm, growing hay and raising livestock for a butchering business.

For Hadden, funding for the irrigation project is a big deal for both farmers and water conservation in general.

“The [proposed new] compact addresses all the substantive issues of claims by tribes and claims by irrigators,” he said.

He said the current irrigation system is inefficient – it transports water in concrete ditches and supports flood irrigation, which means a lot of water is lost. The money that would go into the Flathead Indian Irrigation Project would put more water into pipes, conserving more water for both irrigators and fish and wildlife.

“Quality and quantity of water … is something every Montanan seems to value,” Hadden said.

He also said climate change makes water-conservation efforts even more vital, as there is no guarantee the mountains will continue to provide sufficient water for farms, fish and wildlife.

John Weaver, another rancher near St. Ignatius and who has a Ph.D. in wildlife biology, also supports Daines’ proposed act.

“Water is going to become even more precious” with the warming climate, Weaver said. “Maintaining enough water for native trout species is going to be a concern.”

He pointed out that some blue-ribbon trout streams in Montana already have seen dangerously low stream flows along with warmer temperatures in recent years.

Weaver has shares in the Flathead Irrigation Project and said the irrigation infrastructure in the Mission Valley is “overdue for an upgrade.” Better infrastructure would help farmers and ranchers be more efficient with their water usage.

He also said he “anticipates the Tribes will do a really good job” of managing the National Bison Range, and pointed out the Tribes have “proven themselves to be competent managers” of wildlife such as grizzly bears and trumpeter swans.

It is a “very equitable and fair” arrangement, Weaver said.

But Olszewski still thinks “there is so much wrong with this legislation.” In his opinion piece, Olszewski – who is also running for governor – wrote the act is a “taking of water rights from 350,000 western Montanans.

“As a state senator who swore an oath to defend and protect Montana’s sovereignty, I am completely opposed to Sen. Daines’ legislation because of its devastating impact upon the sovereignty of the state of Montana and its western counties,” Olszewski wrote.

Olszewski believes the $1.9 billion that would go toward the Flathead Irrigation Project, plus the transfer of the bison range, infringe on this sovereignty.

He also expressed concerns over what would happen to “right of ways owned by non-native individuals, corporations and local governments.

“It takes the jurisdiction and control of public and private wright of way from the local county and state governments and grants these powers to the CSKT tribal government,” he wrote, which he believes results in “an expansion of CSKT sovereignty beyond the right of self-determination.”

The Lake County commissioners echoed some of Olszewski’s concerns, particularly the part of the act that compels 36,808 acres of state land to be transferred to the Tribes.

However, Daines’ office clarified that private landowners are “protected” and there is no requirement that landowners transfer their properties to the Tribes. His office pointed to Sec. 12 (i)(2)(G) of the act, which states, “The Tribes shall assist in obtaining prospective willing parties to exchange private land within the Reservation within the State.”

All land transfers also would have to be approved by the Montana Land Board.

Hadden, the St. Ignatius farmer, said he thinks “there are a lot of supporters for this in the farming community” and is not concerned about transfer of lands.

But both Barron and Stipe are still seeking to clear up confusion over parts of the act.

“Its not just us; it’s Flathead, Sanders, Mineral counties,” Stipe said. “At this point some people don’t even know how they’re involved.”

Barron said he is “getting a little flack” for highlighting “worst-case scenarios,” but said he will continue to do so to draw attention to the issue.

The Montana Water Rights Protection Act is the result of over a century-and-a-half of negotiations between the federal government and the Confederated Salish and Kootenai Tribes over their lands in Western Montana.

The 1855 Hellgate Treaty reserved the Flathead Indian Reservation as a homeland for the Tribes where they could maintain their hunting, fishing, trapping and gathering rights. This included the exclusive rights to take fish from the streams running through or bordering the Reservation.

More than 20 million acres were ceded to the federal government in exchange for these rights.

The U.S. Supreme Court defined additional tribal water rights, but could not stop decades of contentious negotiations between the Tribes and U.S. government. This resulted in the Montana Legislature approving the CSKT Water Compact in 2015, which Tester brought to the Senate in 2016.

Reporter Colin Gaiser may be reached at 758-4439 or cgaiser@dailyinterlake.com

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