The Montana State Capitol was bustling with activity Saturday, as literal busloads of people arrived from the Flathead Valley to weigh in on the controversial Flathead Reservation compact that will settle tribal water rights and determine how much water farmers and ranchers of that region will receive in future years.
In a rare, all-day Saturday hearing, the House Judiciary Committee, worked on determining whether the compact, negotiated by the state, the federal government, and the tribes of the Flathead reservation, will be sent to the floor of the House for a vote. The Senate gave it broad bipartisan support in late February.
Backers like Bozeman attorney Hertha Lund said citizen support for the compact is also broad across Montana.
"You got the governor and the AG's office, you got Republicans and Democrats, you've also got cowboys and Indians," Lund said. "This is a historic coalition made up of Montanans from Alzada to Alberton, for the compact. Please pass the compact."
The compact is designed to resolve an argument that, otherwise, could take decades to work its way through the courts: the question of whether the Confederated Salish and Kootenai tribes have a right to water used for fishing in streams outside their reservation. The 1855 treaty that set up their reservation guarantees fishing rights off their reservation, but is silent on the question of water rights. Cory Swanson is one of the attorneys who helped negotiate the agreement.
"We have minimized the risk to what I think is the best case scenario," Swanson said. "That's why the raw preservation [of] rights I think is no longer an issue."
Several High-profile agricultural groups have endorsed the compact. John Youngberg, executive vice president of the Montana Farm Bureau Federation, says his organization went from being ambivalent about the compact to firmly supporting it.
"When they understood that without a compact the tribe[s] would file on water as far east as the Milk, the upper Musselshell, the upper Yellowstone and the upper Missouri, they concurred that a negotiated agreement was far better than litigation," Youngberg said.
Opposition to the compact comes from the Flathead Joint Board of Control, - three irrigation districts on the Flathead Reservation.
But several Flathead irrigators, like Walter Schock, distanced themselves from the joint board.
"I would like to make it plain that the Joint Board of Control does not represent my interests on this issue, Shock said.
When opponents testified, The chairman of the Joint Board, Boon Cole, acknowledged a difference of opinion, but insisted that the joint board is firmly opposed to the compact.
"The majority on the Joint Board that opposes this compact has increased with every election we've had, so all we can do is go forward with what we believe is the majority opinion of our irrigators," Cole said.
Another Joint board member, Jerry Laskody, voiced a major argument against the deal: a study of historical water use on the Flathead, called the “Dutton report” privately funded by several FJBC Board Members. It claims to show that irrigators stand to lose half or more of their water under the formula built in to the compact.
"The CSKT compact results in a significant takeaway of [Flathead Irrigation Project] irrigation water, and does not protect irrigators' historic use," Laskody said.
Opponents say the sharp drop in water allocations under the compact would force many farmers and ranchers off the land, devastating the region’s economy.
The sponsor of the compact bill, Republican Senator Chas Vincent of Libby, attacked the “Dutton report,” saying it used flawed methodology. He says the“adaptive water management” system in the compact ensures irrigators would continue to get as much water as they have used in past years.
“I am going to keep trumpeting that historic needs are met," Vincen said. And I am going to keep refuting, with the help of those that are capable of doing so, science when it isn’t good."
In his closing argument Vincent promised the committee that if they didn’t approve the compact this time around, they will probably be called back to Helena before long to approve something like it.
"And even if this compact is defeated this session, we will be back in a special session," Vincent said. "Because the [Montana Department of Natural Resources and Conservation] will have to promulgate some rules in a hurry, they'll do a preliminary decree in a real hurry, and then when the trail of letters that flies out of this town, all over in that area from Townsend to Idaho, this sleeping giant will wake up, and they'll be angry. And we'll be back, and we'll ratify it," he said.
"So I ask each and every one of you to spend the time to make an informed decision, to make a courageous decision and pass this bill out of committee," Vincent said.
Judiciary Committee members were left pondering hours of conflicting testimony, knowing that they will vote on the compact in a meeting that starts at nine this morning.
Committee members also know that even if they try to kill the compact, Democrats might try to force it the House floor for a vote as they did last week with a bill to expand Medicaid. The next chapter in the evolving story of this water compact will be written in the next few hours.