A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.
The CSKT water compact bill, SB-262, passed the MT House on a 54–46 vote late yesterday, with 13 Republicans joining all 41 Democrats to form the majority. In the Flathead, Democrats Ed Lieser and Zac Perry voted Aye, while Republicans Keith Regier, Carl Glimm, Frank Garner, Steve Lavin, Randy Brodehl, Mark Noland, and Albert Olszewski voted Nay.
After Gov. Steve Bullock signs the bill, which he will do, possibly with considerable ceremony, the compact must be approved by Congress.
That could take some time, and the road to approval could be long and rocky if the Blackfeet Tribe Compact’s journey through Congress is any indication. When S.434, Sen. Jon Tester’s bill to approve the Blackfeet compact, was heard by the U.S. Senate’s Committee on Indian Affairs on 8 May 2013 (transcript), Kevin Washburn, the U.S. Interior Department’s assistant secretary for Indian affairs, said in his prepared statement, “At this point, we are unable to support S. 434 as introduced,” citing several problems including a conflict between the Blackfeet and Fort Belknap reservations:
Our main concern[s] are the proposal to provide the Tribe with a firm supply of 50,000 acre feet per year on a permanent basis from the St. Mary River and the inherent conflict that exists between the water rights of the Blackfeet Tribe and the Ft. Belknap Indian Community in the Milk River Basin as set forth in their respective Water Rights Compacts with Montana.
Off-reservation instream flow rights. This will continue to be a point of contention. During the second reading debate in the MT House, this was the deal-breaker for many Republicans, especially from the Flathead and Kootenai. Objectively, the compact is a very good agreement off-reservation areas north of Flathead Lake:
The Tribes and the United States would agree to relinquish their right to exercise the Tribal water right to make a call against any non-irrigation water right as well as against groundwater irrigators that use less than 100 gallons per minute. The Tribes and the United States would also provide call protection for all water rights upstream of the Reservation, except for irrigation rights sourced from the mainstem of the Flathead River, including Flathead Lake, or the North, South, or Middle Forks of the Flathead River. (From the summary (PDF) of the 2015 compact.)
Moreover, the minimum flows are set so low that calls on junior water rights may never be an issue. So why the heartfelt and resolute opposition to the off-reservation instream flows?
The answer, I think, is that the concept of off-reservation rights offends the conservatives’ vision of the proper ordering of society, and raises fears that this is the first step in a CSKT campaign to reclaim all of the territory they surrendered in the Hellgate Treaty.
The compact is not forever. Some conservative legislators expressed a belief that the because compact will be eternal, mistakes cannot be corrected. That’s not the case. Death and taxes are forever, but treaties, compacts, indeed all agreements, are for only as long as they are relevant. Indeed, some agreements have built-in sunset dates. We hope the CSKT compact will last forever, and I think it certainly will last a good long time, but if necessary it can and will be modified to address exigent circumstances.
Chas Vincent’s journey. Sen. Chas Vincent’s transformation from an opponent of the compact to the general leading the legislative campaign to approve it is a textbook example of following the facts to a logical conclusion, and required no small amount of wit and courage. He deserves our thanks.