On the calendar it may have been Presidents Day, but for the Senate Judiciary Committee, Monday was no holiday.
The committee gathered for the first hearing on what could be the most divisive issue of the session: Senate Bill 262, to ratify the water compact agreed to by the state and federal governments, and the Confederated Salish and Kootenaitribes.
The 140-page bill spells out the water rights for much of northwestern Montana, including land outside the Flathead reservation. The sponsor of the bill, Libby Republican Senator Chas Vincent, didn’t position himself as an advocate for the bill, as much as an advocate for informed debate about the bill.
"I implore you as members of this committee, to listen intently to both sides," Vincent said. "Be sure to sharpen your pencils over the next couple of hours, so that when we get to the question and answer period you can ask the salient questions that are essential to you as a policy maker on this committee to make an educated decision."
Vincent outlined the recent history of the compact, from the first draft of the agreement, which he opposed in 2013, to years of negotiations that led to the current version.
The chairman of the Salish and Kootenai tribes, Vernon Finley, told the lawmakers his nation has given up a lot to secure its water rights and make peace with the state and federal governments.
"We have given much of the rights that were guaranteed to us by the treaty of 1855 that have to do with governing our own nation, within the boundaries of our nation," Finley said.
And Cory Swanson, one of the state’s negotiators, said it was not easy for anyone at the table to balance the water rights of the tribe, which officially date from “Time Immemorial," and the rights of irrigators whose livelihoods depend on water. But he says what drove the state to reach an agreement on behalf of irrigators was the knowledge that the alternative was worse.
"We grappled with one - what I think is the central, fundamental issue - from the point of view of a conservative, and the point of view of the state's interests," Swanson said, "which is, how do we ensure that irrigators are guaranteed water year in and year out, and aren't cut off because of calls to protect fishery rights?"
Fishing rights presented a challenge not faced by the state or any of the other tribes it’s negotiated with over more than thirty years. Among Montana’s Native Americans, only the tribes of the Flathead reservation are guaranteed fishing rights off their reservation. Rights that, according to some interpretations, also mean water rights. Many opponents of the compact disagree with view, and want the questions of the tribe’s off-reservation water right settled by a court. But Krista Lee Evans, of the Senior Water Rights Coalition, said her organization supports a negotiated settlement and doesn’t want any part of a court battle.
"For those who do not believe that in-stream flow is a water right, that is fine. That is your opportunity. Take that issue to court," Evans said. "Please do not drag the rest of us with you. The compact does not preclude anybody from bringing any of these issues to court. Do it. Just don't force me and my irrigators and my people to go to court when we don't want to."
Evans' group is one of many that support the compact. Among them are the Montana Farm Bureau Federation, and the Montana Stockgrowers Association, along with the state’s Democratic Governor and Republican Attorney General.
But opponents of the compact are many, and after about two hours, they got their turn at the microphone. Jerry Laskody, chair of the Flathead Joint board of Control, the group that manages the non-tribal irrigation in the region, brought technical arguments from his career as an engineer. He says his calculations predict that under the compact his allotment of water would drop by about half – a claim repeated by many of the opponents of the compact.
"If I only have access to 1.05 acre feet per acre, I estimate my gross income will be reduced by approximately 60 percent," Laskody said. "No ranch operation can be sustained with this level of income reduction."
According to opponents, water won’t be the only thing that dries up under the compact. Ross Middlemist, whose family has ranched in Dixon for over a century, says an uncertain water supply will also cause financing to evaporate, and drive his family and many others off the land.
"If this compact passes, I believe our land will be worth pennies on the dollar," Middlemist said. "Our survival in the business of raising food for America could be five years or less."
So many people lined up to testify against the compact that Chairman Scott Sales had to cut off testimony as the committee ran over time. Senator Chaz Vincent wrapped up the hearing with a spirited defense of his decision to turn from opposing the compact two years ago to sponsoring it in the current legislature.
"I would not be doing this if I did not think this was in the best interest of Montana, and the best interests that I represent. And if you think this is some kind of political opportunism, I'll tell you what, " Vincent said, pausing while some in the room chuckled, "it's not."
The fate of the Flathead Water Compact now rests solely in the hands of the thirteen-member senate judiciary Committee, which may decide to forward the bill on to the full Senate, or hold it in committee, potentially killing the deal, echoing the move that killed the previous version in 2013.
