Fielder expresses concerns about water compact

SUPERIOR – During the Mineral County Commissioner’s meeting on Friday, Feb. 21, Montana State Senator Jennifer Fielder (R, District 7) presented an update on water rights issues being discussed in the state legislature.

The first thing discussed was the water compact with the federally reserved water rights of the Confederated Salish and Kootenai tribes. When the reservations were created, it was implied enough water was also available to fulfill the purpose of the reservation.

The federal government has been negotiating with the states for water rights around the country to turn over to the American Indian reservations.

The CSKT Compact would put approximately 48 million acre-feet of water in western Montana under the tribe’s control. It is estimated this would affect 11 counties and eight major river systems.

There was some question of where the line was drawn on the reservation’s control of the water. There were concerns over the compact’s provisions allowing the tribe to have a say on the use of water, not only on their own lands, but on other private properties inside and outside the reservation.

It would also give the tribe priority on the use of water flowing through the reservation. This could mean less water for non-Indian landowners who live within the reservation as well as people living further up or down river who were not on the reservation.

Fielder is part of a group of legislators who requested the state legislature order an environmental, economic and legal assessment of the implications of the proposed CSKT compact. The group was uncertain what the water rights meant for the co-ownership of the rivers in the area.

“What does that mean for the tribe’s say over permits?” Fielder asked. “Does it give them authority over permitting, permit review or does it not? We don’t really know that.”

She said the definition of Native American land was also vague and could mean private property could be changed to Native American land status, which would mean a loss of property rights as well as removing the lands from the county tax roll. Fielder said the definition of a reservation, proposed in the CSKT Compact, was akin to “all lands inside the exterior boundary, despite the issuance of patents.” She felt this could mean all lands inside the reservation boundary were considered American Indian lands, regardless of the lands lawfully acquired by non-Indian homesteaders and others.

If this were the case, Fielder said passing the compact would have huge implications for the entire region as well as the state tax revenue. Fielder asked the attorney for the compact commission about the concerns and was told this was not how it worked. The senator felt the definition of what was reservation or Indian land status was confusing and should be clarified in the compact itself.

There are also questions over what laws apply to water rights within a reservation’s area. It appears the water rights would be subject to tribal rather than state law. It was suggested the compact be carefully assessed so the specifics of water law and impacts on property law could be determined.

The legislative committee for natural resources asked the legislature to do independent studies on the compact. Both sides of the legislature approved a call for the environmental studies to be done but the governor vetoed the bill and said the compact was fine as it was. This was frustrating for Fielder because there was enough time for the studies to be completed during the interim.

Fielder recalled a case in Idaho where the Federal Government wanted a compact on water rights but the populace refused. The citizens of Idaho insisted it was their water and would not sell. She said the government threatened to file enough claims to gum up the water courts if the state refused to negotiate a compact with the federal government.

When the state continued to refuse, the federal government carried out their threat. The USFS, BLM and tribes filed approximately 6,000 claims in an attempt to bring the water courts to a standstill. It worked at first, as the courts worked to process everything but only a six or seven of the claims turned out to be valid while the rest were thrown out.

Fielder said it was important to conduct independent studies in order to get the facts about the compact before deciding anything. She said the compact commission was promoting it heavily but only gave one-sided, biased information about it.

“They want that compact but [it] has some issues to work out,” Fielder said.

One concern about the compact was a growing trend as states bought water rights to sell elsewhere. Fielder felt water would eventually become worth more than gold or oil as it became scarce in areas.

She also discussed a growing trend among the states to sell water rights to other places.

California had begun to do this and their agricultural areas were drying up as a result. Fielder felt there were some advantages to the idea because farmers could sell their water rights on a year where they were not planning on many crops. But there were also plenty of disadvantages as well.

It was noted how water is necessary for all life and would be a valuable commodity in places where it was scarce. Fielder felt the federal government was using various means to gain control of the multitude of water sources in Montana and other western states.

“It’s probably the most valuable resource we have and we take it for granted,” Fielder said.