Montana Free Press
HELENA — Standing before reporters at a press event in the Montana Capitol January 15, State Sen. Al Olszewski called a long-negotiated water compact between the state of Montana, the federal government, and the Confederated Salish and Kootenai Tribes “the most divisive issue in modern Montana history.”
While the compact isn’t necessarily a hot-button issue for Montana’s Democrats, that may well be true in Republican circles.
The compact, approved by the state Legislature in 2015, is an effort to reconcile Montana’s modern water rights doctrine with the 1855 Hellgate Treaty, which gives the CSKT plausible claim to in-stream water rights beyond the borders of the Flathead Indian Reservation because it guarantees tribal members the right to fish at “all usual and accustomed places.”
Introduced by Sens. Steve Daines and Jon Tester last month, the Montana Water Rights Protection Act would resolve tribal water claims and allocate $1.9 billion to settle federal damage claims, as well as rehabilitate the deteriorating Flathead Indian Irrigation Project. In exchange for the tribes’ agreement to relinquish claims to most off-reservation water rights, the bill would also return control of the National Bison Range on the Flathead Indian Reservation to the CSKT.
Failure to pass the compact, supporters argue, could land thousands of tribal water claims across Montana in court. Regardless, the settlement has been opposed by Olszewski and a handful of other Republicans, who argue that the compact terms are based on a flawed legal premise and cause unnecessary harm to western Montana property owners.
MONTANA’S FEDERAL DELEGATION
Sen. Steve Daines, Republican SUPPORTDaines, up for re-election this fall, introduced the federal legislation intended to implement the settlement December 11. “We’ve reached a historic compromise on a century-old dispute that protects the water rights of all Montanans,” Daines said in a December 5 phone interview with the Montana Free Press. “We’ve reached a new agreement that addressed my concerns, that addressed those of many others in the agriculture community, and attempts to address the concerns of some of those who have been opposed to the compact.” Sen. Jon Tester, Democrat SUPPORT
Tester, who introduced an unsuccessful bill to enact the compact in 2016, is the lead co-sponsor on the Daines-introduced bill. “This bill will help bring years of uncertainty for the Confederated Salish & Kootenai Tribes, taxpayers, farmers, and ranchers to an end,” Tester said a joint statement with Daines December 11. “I’m glad the CSKT Water Compact now has the backing of folks on both sides of the aisle as well as the Trump Administration — so we can move full-steam ahead to honor our trust and treaty responsibilities, prevent costly litigation, boost economic development in the region, and give long-overdue peace of mind to everyone in Northwest Montana who uses our state’s most valuable resource.” Rep. Greg Gianforte, Republican UNCOMMITTED Gianforte spokesman Travis Hall said this week that the congressman is “encouraged” by the settlement bill and monitoring it as it moves through the U.S. Senate. He said Gianforte hasn’t decided whether to support the bill, which could be amended before it comes to a vote in the House. “Greg believes we need an agreement that avoids litigation,” Hall wrote in an email. “He’s encouraged by the progress of this settlement that provides certainty to water users throughout the state and fixes many problems with the original compact.”
CONFEDERATED SALISH AND KOOTENAI TRIBES
CSKT Tribal Council Chairman Ronald Trahan SUPPORT“This will work and get the job done. This bill will ensure the protection of vital resources while seeing to the needs of the greater community,” Trahan said in a statement published by Char-Koosta News. “The Tribes on this reservation have worked hard to be good neighbors and sometimes that means making tough decisions which serve the entire community.”
TRUMP ADMINISTRATION
President Donald Trump hasn’t weighed in on the CSKT compact, but his top attorney and top public lands manager have signaled their support for the settlement in general terms.
U.S. Secretary of the Interior David Bernhardt SUPPORTIn a November 18, 2019 letter to Daines, Bernhardt wrote: “As a general policy matter, for more than 30 years the United States has supported resolving Indian reserved water right claims through negotiations rather than protracted and divisive litigation. I am informed that during the course of negotiating and reviewing the CSKT Compact, concerns and objections were raised about whether proposed Compact terms appropriately resolved the Tribes’ claims and about the perceived impacts that the Compact could have on non-Indian water right holders. These concerns are important, and it is my understanding that these concerns were considered and evaluated during the negotiations.” U.S. Attorney General William Barr SUPPORT
Speaking at a Nov. 22 press conference in Kalispell, Barr said that complicated agreements like the water compact are best arrived at through negotiation, rather than litigation, adding that litigation could be time-consuming, costly, and risky for everyone involved. “People should not assume that they’re going to end up with a better deal” through litigation, he said.
STATE OFFICIALS
Montana Gov. Steve Bullock, Democrat SUPPORT“I am encouraged that the U.S. Senate now has bipartisan support to at long last advance the Confederated Salish and Kootenai Tribes (CSKT) Water Compact and provide certainty for water users across Montana,” Bullock said in a December 5 statement. “I urge Congress to move swiftly to advance this important legislation.” Montana Department of Natural Resources and Conservation Director John Tubbs SUPPORT
Tubbs, who also served as a water policy official in the Obama administration, told Montana Free Press in December that he agreed with the Trump administration’s analysis of the water compact issue, calling Bernhardt’s letter “historic.” “We agree with the secretary’s conclusions that it’s an appropriate settlement, that it’s time to move this issue forward, and that it is all within the context of federal statute and court decisions,” he said.
CANDIDATES FOR MONTANA GOVERNOR
U.S. Rep. Greg Gianforte, Republican UNCOMMITTEDSee above Montana Attorney General Tim Fox, Republican SUPPORT
“President Trump’s administration is backing the CSKT water compact and there is bipartisan support from Montana’s congressional delegation, so it’s time to get this done,” Fox said in a December 5 statement from the Attorney General’s Office. “I am grateful to Senators Daines and Tester for their support of the compact passed by the 2015 Montana Legislature. I call upon Congress to ratify it as soon as possible.” State Sen. Al Olszewski, Republican OPPOSE
Olszewski, of Kalispell, headlined the January 15 press event, where he and a handful of other elected Republicans urged Daines to withdraw the compact bill. Despite federal legal precedent to the contrary, he argued the compact is based on a flawed interpretation of the Hellgate Treaty. “Our constitutional water rights are worth fighting for, even if it means going to court,” he said. Lt. Gov. Mike Cooney, Democrat SUPPORT
“Folks here in Montana — on both sides of the aisle — worked very hard to pass the CSKT Water Compact and it’s time for Congress to stop putting up roadblocks and do the same,” Cooney said in a statement provided by his campaign Jan. 22. House Minority Leader Casey Schreiner SUPPORT
Schreiner, of Great Falls, voted for state-level legislation implementing the CSKT water compact as a state representative in 2015. He didn’t initially respond to a request for comment but said he supported the compact via text message after this story was first published. “The CSKT water compact is a great example of how doing the right thing can overcome partisanship,” he said January 25. “We got it done in Montana and we should expect those in D.C. to get it done too.” Philanthropy consultant Whitney Williams SUPPORT
“In a hyper-partisan Washington, D.C., the CSKT Water Compact represents a bipartisan solution to do right by the needs of Montanans,” Williams said in a January 27 statement. “The Water Compact is a victory for the Confederated Salish & Kootenai Tribes and the ranchers, business-owners, and families of Montana — and, it’s the right thing to do. It’s time to move this forward.”
AGRICULTURAL GROUPS
Montana Farm Bureau SUPPORT“The Montana Farm Bureau Federation and its members support the CSKT water compact passed by the Montana Legislature in 2015,” MFBF Executive Director John Youngberg said in a Dec. 16 release. “This compact eliminates the need to individually litigate thousands of water rights claims, provides Flathead irrigators with a quantity of water that matches their historical usage, frees cities and other non-agricultural users from calls in drought years, and provides the CSKT with a fair settlement of their reserved water rights claims.” Montana Farmers Union SUPPORT
“Thanks to this legislation Montana water users are one step closer to bringing to fruition decades of negotiations on settling water rights affecting up to 73% of Montana’s irrigated acres,” MFU President Walter Schweitzer said in a December 16 release. “Stakeholders from all over Montana put in countless hours working on this solution to a centuries-old problem.”
ENVIRONMENTAL GROUPS
Montana Wilderness Association SUPPORT“We commend both Sens. Tester and Daines for introducing the bill, and we’re pleased that the legislation will also enable the CSKT to manage the National Bison Range,” Deputy Director John Todd said in a December 11 statement. “This corrects an injustice, of the range having been taken away from the CSKT, and it gives the tribes the opportunity to incorporate the range into its rich network of conservation areas.”
VIDEO: Leaders from the Confederated Salish and Kootenai Tribes of the Flathead Reservation in #Montana present AG Barr with blanket and drum circle performs honor song. 🇺🇸🇺🇸🇺🇸 pic.twitter.com/LjRKRzZPXr
— KerriKupecDOJ (@KerriKupecDOJ) November 23, 2019
OTHERS
State Rep. Kerry White, Republican SUPPORTWhite, of Bozeman, voted against the state version of the water compact in 2015, but wrote in a January 15 opinion column published by the Missoula Current that the Daines-introduced federal bill had won his support. “As someone who previously opposed the state-passed compact and federal legislation, I am supportive of the MWRPA,” White wrote. “I can attest to the fact that Daines has been in the middle of negotiations, and this proposal includes significant concessions from the CSKT, concessions that were significant enough for me to now back the proposal.” State Sen. Dee Brown, Republican OPPOSE
Brown, of Hungry Horse, joined Olszewski January 15 in questioning the nexus between water rights and the Hellgate Treaty, saying the treaty’s fishing provision shouldn’t apply because some other sections of the treaty, including one prohibiting liquor consumption on what’s now the Flathead Indian Reservation, are archaic. “We can’t selectively say what is and what isn’t” in the treaty, she said. Lake County Commissioner Gale Decker, Republican OPPOSE
At the anti-compact press event January 15, Decker said Lake County government is concerned that jobs created by compact spending would bring an influx of workers and crime. “We’re worried about our law enforcement, our drug trafficking, our human trafficking,” he said. State Rep. Joe Read, Republican OPPOSE
“All I see is that this is a damaging proposal for Lake County and it’s a damaging proposal for the people I represent,” Read, of Ronan, said Jan. 15. “It doesn’t matter whether they are tribal or non-tribal — I represent all of them and I heartily disagree with this water compact.”
Pinocci, who represents north-central Montana on the state utility regulation board, and opposed the compact as a state representative in 2015, also spoke at the anti-compact press event. “Make no mistake — this is a loss of property rights,” he said. In a broadcast interview with NorthWest Liberty News January 17, Pinocci also floated the idea of mounting a primary challenge against Daines over the senator’s support for the compact. “If the listeners are wondering what we need to do, somebody needs to step up to the plate and say, ‘I am going to file against Steve Daines — and I am going to repeal this compact,” he said. “I’m about half-tempted to file against Steve Daines myself.” Note: This story was updated after publication to include comment from Democrats Casey Schreiner and Whitney Williams.
Eric Dietrich is a journalist and data designer based in Helena. He is the lead reporter on the Long Streets Project and also covers state policy for MTFP. He has previously worked for the Great Falls Tribune, Bozeman Daily Chronicle and Solutions Journalism Network. Contact him at edietrich@mtfp.org or 406-544-1074.
Note: This story originally appeared on Montana Free Press. It is published under a Creative Commons license.
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