Montana Viewpoint: Water rights and legitimacy of Flathead Compact

Jim Elliott

How would you feel if you found that you and your water rights were the victim of a “Fraudulently derived, over-reaching, unconstitutional water compact”? Pretty heated, I would guess, and rightly so if that were the case.

The compact I am referring to is the Flathead Water Compact between the Confederated Salish and Kootenai Tribes of the Flathead Reservation (CSKT), the State of Montana and the United States.

Even though the compact is now law, there are many in western Montana who think it is illegal. The quote about the compact is from a video (at about the 19-minute mark) on how to file an objection with the Montana Water Court on aspects of the compact. It was put out by Concerned Citizens of Western Montana, and you can view it at https://vimeo.com/761733338.

My concern here is that the creation of the compact is being mis-represented by people who oppose it, and that this misrepresentation has the potential to influence the coming elections. In the video, the compact is criticized by talking about the “great lengths the parties have gone to avoid vigorous review and scrutiny” of the process (video at about 4 minutes 20 seconds).

So, my purpose in this article is to present the history of the compact and let you decide for yourself its legitimacy. This may seem irrelevant to some of my readers in eastern and central Montana because they may not feel affected by the issue, but it is of importance to all Montanans.

The Flathead Compact was the last of the seven Tribal Compacts entered into by the state to resolve the “reserved water rights” on the reservations within Montana. The concept of a federally reserved water right comes from the “Winters” decision by the Supreme Court in 1908, which held that when the United States creates an Indian Reservation (in the Winters case the Fort Belknap Reservation in Montana), it necessarily creates a tribal water right in the amount to satisfy the needs of that reservation.

Few issues in the Montana Legislature have received more attention, controversy, and review than the Flathead Water Compact. The negotiations on the Compact began over 10 years prior to its adoption with meetings between the CSKT and the Montana Reserved Water Rights Commission, the state agency created in 1979 to negotiate the compacts while protecting existing non-tribal water rights.

The meetings were open to the public. In 2013 at least two bills aimed at implementing the compact as agreed upon by the state and the CSKT failed to make it out of committee in the House of Representatives. However, in 2015 a formerly staunch opponent of the Compact, Senator Chas Vincent, Republican of Libby, introduced Senate Bill 262, a Bill to Implement the CSKT Water Rights Compact, which he now strongly supported.

The bill was heard in Senate Judiciary in a marathon hearing lasting over 5 hours with what looks like, without actually counting, 100 proponents and 100 opponents. Among the proponents were the Montana Stockgrowers Association, the Montana Farm Bureau, and many others with a personal and professional interest in the bill’s passage. You can read the list of those testifying at this link.

The bill passed the committee 8-4 and went on to a very lengthy debate on the Senate floor where it passed 31-19. On April 11, 2015 - in another marathon hearing of 10 hours and 20 minutes - the bill was heard in House Judiciary. In spite of being rejected by the House Committee, the bill eventually made its way to the House floor where it was carried by Rep. Steve Fitzpatrick, R-Great Falls, and passed 53-47.

By any standard, this was a well discussed piece of legislation. Eventually the compact was sponsored in the United States Senate by Montana’s Republican Senator Steve Daines who said “This is a win for all Montanans” upon its passage. It was signed into law by President Trump.

After its enactment Montana’s Gov.-elect Greg Gianforte said, “With the compact …farmers, ranchers, the Confederated Salish and Kootenai Tribes, and all Montana water users will have the certainty they need about the use of one of our most precious resources, water….”

Legitimate or not? It’s your call.

Jim Elliott served sixteen years in the Montana Legislature as a state representative and state senator. He lives on his ranch in Trout Creek.