Fifty legislators request review of CSKT Water Compact

An update from Senator Fielder

Agreeing each vote should be an informed vote, fifty Montana legislators recently requested independent review of the proposed CSKT (Confederated Salish & Kootenai Tribes) Water Compact.

You may recall the proposed agreement between the state, tribe, and federal government failed to meet legislative approval last year. The legislature wanted to study the controversial proposal during the off year in 2014, but in keeping with the tribe’s “take it or leave it” ultimatum, the governor vetoed the bill that would have required a legislative study.

For over a year now, legislators have been asking for in depth, unbiased professional expertise because this particular law is complicated, contentious, and if ratified it would last FOREVER. The Compact will undoubtedly be back before us in the 2015 legislature.

Recently, State Representatives Nancy Ballance, R - Ravalli County and Keith Regier, R - Flathead County asked a bi-partisan legislative interim committee to conduct independent studies of the Compact. One third of the entire legislature signed the request.

The tribe’s attorney testified in opposition to the studies, contending the Compact doesn’t need to be looked at any further. But I and many other legislators feel more information is needed in order to make a responsible decision.

“When HB 629 (the proposed CSKT Compact) was introduced it had a fiscal note attached but no legal review,” Rep. Regier testified. “Legal Services Office of the legislative staff provides a legal review of bills that could raise potential issues based on plain constitutional language conflicts and Federal Court and Montana Supreme Court case law. I was surprised that off reservation water rights and the development of a new water right regulatory agency (Unitary Management Ordinance)… did not trigger a legal review.”

Regier continued, “I was told by Legal Services that a legal review was not done because there is a lack of case law in these areas. With a lack of case law on these two issues that means the CSKT Compact is breaking new ground and setting precedent that can be far reaching. That makes it imperative that legislators have as much information possible before making a decision on this compact. Having a MEPA study, private property assessment, and an economic review will make each vote an informed vote.”

Many irrigators have testified against the proposed compact because it would cut their historic water use in half and jeopardize their ability to raise crops. Others believe having their water rights placed under authority of a tribal entity will violate their constitutional right to equal protection under U.S. & Montana law. Some supporters of the current proposal fear the outcome will be worse if the compact is not passed.

The fact that the Flathead Indian Reservation was opened to white settlement over one hundred years ago has resulted in a mixed land ownership pattern of private and tribal lands within the reservation boundary. Long ago the federal government made promises to the tribe, homesteaders, and irrigators. In some cases the federal promises appear to be contradictory to one another.

The legislature does not convene again until 2015, so there is time to study the laws, the facts, the proposal, and the probable impacts. I will continue in any way I can to seek out thorough review of the Compact, and corrections if warranted.

It’s important to note there are Indian and non-Indian people who favor the current compact as well as oppose it. Moving forward with caution and seeking independent analysis to get the facts on the table is the responsible thing to do.

It would be helpful if citizens and decision makers on both sides of the issue stay informed and engaged in thoughtful review and respectful dialogue. If we do that, we may be able to solve this.

“None of the legislators are saying there shouldn’t be a compact.” Regier concluded in his recent testimony, “There are just too many unanswered questions for them to feel comfortable supporting the compact in its present form. Some legislators are comfortable in supporting the compact now. Help me and others attain that same confidence. Let’s do the studies that will answer the questions the compact raises.”

For more info, visit www.jenniferfielder.us or email sen.jfielder@legmt.gov .