More are calling for a re-opening of negotiations on the Flathead Water Compact, soon possibly including the state commission which helped craft the compact.
But the Confederated Salish and Kootenai tribes are holding firm with the current version.
The CSKT have been working on this agreement with the state and federal governments and private irrigators for at least a dozen years. It would settle disputes over how water is shared on the Flathead reservation.
The 2013 Legislature did not pass the Flathead compact--the first time that had happened. Agreements reached by Montana’s Reserved Water Rights Compact Commission on the state’s other six reservations passed their first time through. But, the Flathead Compact is the most complex and has proven to be the most controversial.
John Swenson has a small ranch near Ronan. He irrigates on fee land inside the Flathead Indian Reservation. He’s one of a large group of irrigators who feel they will lose water through the deal.
“I’m not willing to give my water right up to anybody,” he the Legislature’s Water Policy Interim Committee, which is looking at the compact to try to decide whether to recommend passage during the next Legislature.
The water compact process was developed in the 1970s as a way to prevent decades of legal battles among the tribes, the government and the irrigators. The Tribes have the oldest water rights dating back to before Montana was even a state. They argue they could go to court and secure all of the water rights on the reservation.
The compact is supposed to be a compromise with the government and with irrigators like John Swenson. The tribes say irrigators will not lose water through the agreement. But Swenson disagrees, he looks at the water use models put forth by the tribes, he looks at the water he needs, and to him it doesn’t add up.
“It doesn’t add up with transpiration, it doesn’t add up with anything that I’ve been able to physically observe,” he said.
Sen. Chas Vincent (R-Libby) chairs the Water Policy Interim Committee. He’s asking the tribes for information on how they arrived at the figures in their models, the figures which say irrigators won’t lose water through the compact.
“The problem is for policy-makers is there’s no way for us to validate that claim, one way or the other,” he said.
Confederated Salish and Kootenai Tribes Attorney Rhonda Swaney says the tribes allowed state employees to look at the modeling for years, and it was only accessed once. They have not agreed to do so since.
“It’s proprietary,” Swaney said. “We paid millions of dollars for it and didn’t feel that was something we needed to do.”
Most of the private irrigators on the reservation signed onto the compact as one group, the Flathead Joint Board of Control. The problem is, that group has since dissolved into three different entities. The language of the compact only refers to the Joint Board of Control. So, Chair of the Reserved Water Rights Compact Commission Chris Tweeten said that should be corrected. He said the commission is strongly considering recommending to Governor Steve Bullock that negotiations be re-opened.
“To try to bring back into the compact proper some of the provisions in the water use agreement that would provide protections for the irrigators existing use of water on the reservation,” Tweeten said.
Ultimately, the decision on whether to ask the tribes back to the negotiating table falls on Governor Bullock. The tribes have said repeatedly the only two options on the table are the 2015 Legislature approves the compact as is, or the issue heads to litigation.
The tribes have already filed a narrow lawsuit in federal court, seeking to determine the owner of the water used by the irrigators.