Supporters of the proposed Flathead Water Compact, involving the state, the federal government, and the Confederated Salish and Kootenai Tribes have a victory to celebrate. The compact, one of the most contentious issues of the current Legislative session not only survived a debate and vote in the Montana Senate, but did so with a sizable margin.
Republican Senator Chas Vincent of Libby, who has been shepherding the bill through the Legislature, opened Wednesday afternoon’s debate admonishing the Senate to pass the compact in its pure form, with no amendments.
“We’re talking about a process that has been long and exhaustive," Vincent reminded his colleagues. "We’re talking about a process that included members of this legislative body on that compact commission. You cannot bind three different parties with unilateral decisions. That’s what an amendment to this bill is. You’re binding two other parties.”
Vincent has been meeting with Senators for weeks delivering the same message: The compact has to pass unchanged from its original form. His work paid off. Three amendments to the measure were introduced, and all three were rejected decisively. Then the debate on the compact began in earnest, with most of the opponents voicing doubts about its most controversial feature: Giving the Flathead tribes water rights outside their reservation.
The strongest objection came from Bozeman Republican Jedediah Hinkle.
“Though I’ve spent more time on this piece of legislation than any other this session, I’m far from understanding all of the over a thousand pages of technical documentation," Hinkle said, "and I will not vote Nancy Pelosi-style and pass a permanent legislation just to find out whether it’s good or bad.
"Do you believe that fishing translates into a water right, and support giving the federal [government] jurisdiction over Montana’s water? Then vote yes."
Senator Fred Thomas, who was presiding over the debate, stepped in.
“We’re going to retract that comment on the congressman, okay?” Thomas said
“I’m finished," Hinkle replied.
A few minutes later, a chastened Senator Hinkle took to the floor again:
“I didn’t actually even consider that it may offend all of you, so I apologize for that, and I’d like to ask for your forgiveness," Hinkle said.
But Senators kept raising the question of whether the Flathead tribes really have a right to water outside their reservation boundaries, a right they claim based on the 1855 treaty that created their reservation. The treaty gave them the right to fish in their usual and customary locations, which the tribes interpret as a right to expect water in those same locations.
Missoula Democrat Dick Barrett posed questions directly to sponsor Chas Vincent, “Can you tell us what the practical implications of assigning those rights are? What the actual quantitative significance of these inflow rights are? And how likely they are to actually have an impact on other water users?”
Vincent replied that no court has yet issued a clear ruling on the matter, but based on past decisions, if the compact is defeated, the tribes will probably win a priority water right in those streams off the reservation, one that dates from 1855, when the Treaty was signed.
“The only thing that’s going to get them dismissed," Vincent said, "is for you to prove that tribe was not there in 1855. And all the other side has to do is stand there with a map from the Smithsonian saying, yes we were."
Senate President Debby Barrett, a member of the commission that negotiated the compact, contends that the other negotiators ignored the state and federal constitutions when they crafted the water deal. She said her vote to forward the compact to the legislature does not mean she agrees with its legal language.
Even though Montana’s attorney general has endorsed the agreement, Barrett contends the compact commission handed the legislature a flawed and possibly unconstitutional document:
“The Montana water Rights Compact Commission did not bring the legislature a negotiated settlement," Barrett said, "they have dropped on the 64th legislature the largest expensive turf war of all time."
But Barrett’s arguments did not convince a majority to reject the deal. As the debate stretched into the dinner hour, the Senate finally voted. Thirty-one Senators said aye, 19 no.
"Senate Bill 262 has passed second reading," Senator Thomas said, gavelling the debate to a close.
A short time later, Chas Vincent received congratulations from other Senators outside the chamber, and said he was pleased with the margin of victory.
“I was hoping for a couple more votes," he said, "but I think 31 is still a very solid success."
The Senate takes one more vote on the bill today, but it’s just a formality before the compact heads to the Montana House. There Chas Vincent’s work starts all over again, explaining the deal to skeptical lawmakers, and trying to convince them to support it.