State water deadline undermines tribal water compacts

Montana’s legislators may need to extend a self-imposed deadline to help Montana’s tribes secure their water and avoid years of litigation.

The legislative Water Policy Interim Committee learned Monday that three tribes could be forced to sue the state if the Montana Water Court finalizes water-rights decrees before Congress ratifies the tribes’ water compacts.

The situation is driven by the fact that the Legislature has charged the water court with assessing and finalizing all state water rights by 2020, said John Carter, attorney for the Confederated Salish and Kootenai Tribes.

Normally, before that can happen, the state and the federal government must agree on how much water is controlled by the federal government on tribal reservations, wildlife refuges and national forests. These agreements are called compacts.

The problem is, while the state legislature has finally approved water compacts for all the federal agencies and reservations, the CSKT, Blackfeet and Fort Belknap compacts are still awaiting ratification by the Congress.

So this summer, when the water court, under deadline pressure, issued an initial water-rights decree in watersheds on the Blackfeet Reservation, it didn’t recognize the water rights spelled out in the compact.

In the past, when compacts were awaiting ratification, tribes were granted a stay of all decrees while the compacts worked their way through Congress. But this summer, the water court denied a similar request for a stay from Blackfeet leaders.

“This is a pending dilemma. Basically, the water court is stuck between a rock and a hard place,” Carter said. “(Issuance of the decree) forces the tribe to object to water rights claims that are within the reservation boundaries, thereby potentially offending not only non-Indian supporters but their tribal membership.”

That's something the CSKT would like to avoid. If they were required to challenge a decree, the anti-Indian groups that tried to derail the state’s approval of the compact could use that challenge to re-ignite opposition. The CSKT compact barely survived a highly contentious vote in the 2015 Legislature after being tabled in the 2013 session.

Maybe because its compact was only recently approved, the CSKT fared better with the water court than the Blackfeet. The CSKT was granted a stay until January 2017, although the judge wasn’t likely to extend the stay beyond that, Carter said.

With that in mind, CSKT leaders are in Washington, D.C, this week meeting with Montana’s Congressional delegation and the Department of the Interior to urge rapid ratification of the compact, Carter said.

The Blackfeet, who saw Montana ratify their compact in 2009, are still battling to get Congress to take the final step. Sens. Max Baucus and Jon Tester introduced a bill in 2010 and 2011 but it languished in committee. Tester subsequently introduced bills in 2013 and 2015, but they’ve also stalled.

In December, Tester asked the Senate Indian Affairs committee to hold off on voting on the compact to give the Pondera County Canal and Reservoir Company time to adjust the bill language related to the company’s water rights mitigation. That frustrated tribal leaders who questioned why their compact was being delayed yet again to help a non-tribal irrigation company.

The Fort Belknap compact is in even worse shape, languishing since the state ratified it in 2001.

If ratification of any of the three compacts takes four years or more, the tribes would not meet the water-court deadline.

Since Congress hasn’t been very productive in past years, Carter, when asked by the WPIC committee, said that the Montana Legislature might take the pressure off the water court and the tribes by extending the 2020 deadline.

Committee member Kathleen Williams suggested that the committee question Water Court Judge Russell McElyea when he appears on Tuesday.