This West Is OUR West

In last-minute move, legislators remove money to implement tribal water compacts

 

by Jayme Fraser

May 4, 2017 – updated May 6, 2017

 

Vernon Finley cskt

Thom Bridge, for The Montana Standard

Vernon Finley, chairman of the Salish and Kootenai Tribal Council, speaks at the state Capitol in favor of the CSKT water compact in this 2015 file photo.

 

It seemed simple enough: Cut $200,000 from the annual budget for a team of water compact negotiators who had completed their job and sent the deal to Congress for approval.

But that lost annual funding — proposed by a long-time opponent of the water compact with Confederated Salish and Kootenai Tribes — actually supported the state’s work to implement the most recent settlements between Montana, tribes and the federal government.

Last week, just three days before the 2017 Legislature adjourned, a bipartisan committee of House and Senate leaders met to tie up loose ends of the budget. An amendment to remove the $200,000 earmarked for the Montana Reserved Water Rights Compact Commission was approved unanimously and described as a simple clean up.

“There is no work for this commission to do so they were OK with removing the dollars,” Rep. Nancy Ballance, the CSKT compact opponent, said as she introduced the cut. 

Department of Natural Resources and Conservation Spokesman John Grassy on Tuesday disputed the implication that the agency had supported the budget reduction.  

“There was this sense the compact commission is over. That is not accurate. We continue to have statutory obligations to all of the federal compacts,” he said, emphasizing that the department, home to the Compact Implementation Technical Team that does field work related to the commission, would look to fund their obligations another way.

The Confederated Salish and Kootenai Tribes said in a statement that they "are fully committed to a successful implementation" and are confident that state officials will find a way to keep their commitments without that particular funding.

"State and tribal governments regularly navigate through difficult situations with limited budgets. For this reason, we do not believe that a minor last-minute change to the state budget will handicap the work that needs to be done in any meaningful way,'' the statement said.

"Nonetheless we were disappointed by the behavior of a small group of legislators who seem committed only to the obstruction of previously enacted legislation," read the statement.

The Legislature established the compact commission in 1979 to negotiate agreements over water use where the federal government or tribes claimed reserved rights. Without a compact outlining those details and approved by all three parties, thousands more disputes over water issues would have to be resolved in courts. The deals typically also come with millions of federal and state dollars to work on irrigation and stream management projects.

Montana has negotiated 18 water compacts, sending the last one on its list to Congress in 2015 for final approval. That compact negotiated a settlement with CSKT for their water rights on the Flathead Indian Reservation as well as several streams and rivers outside it.

A few weeks ago, Blackfeet Nation voters approved their own compact after President Barack Obama signed it in December, freeing up $470 million in federal funding for related water projects.

The commission members themselves have no more work to do unless Congress does not ratify one of the pending compact settlements. But DNRC Director John Tubbs said even closed deals still include some requirements for the Water Resources Division to do technical work. Tubbs said the Compact Implementation Technical Team accounts for 4 of 7 employees in that division.

“Once we concluded the negotiation of all the compacts, the staff shifts from negotiation to implementation,” Tubbs said, noting that “was made clear” to the Legislature at least six years ago. “Each compact has its own nuance as to what our obligations were.”

He said the work threatened by the funding cut includes flow monitoring of all the streams on the Flathead Reservation so the department will have accurate usage and flow data to support aspects of the CSKT Compact. The recent ratification of the Blackfeet Compact also triggers “a bunch” of similar work. Just a few months ago, the state completed its obligations under a settlement with the Crow Nation and area irrigators.

It is unclear why most legislators did not know the funding was linked to the implementation team and whether the cut was a deliberate attempt to undermine compact work.

“How did that go through?” asked Rep. Shane Morigeau, a Missoula Democrat who works as in-house counsel for CSKT. No one can pinpoint where the breakdown happened. “People kept assuring me it didn’t impact the Compact Implementation Technical Team.”

At the end of the session and unable to get clear answers, Morigeau ultimately voted against the bill but did not ask fellow legislators to kill it because it contained language needed to make the larger budget work. 

Tubbs noted that a House Appropriations subcommittee had suggested the reduction earlier this year but it was ultimately restored. He said he learned of the cut the day after it was made and as legislators prepared to end their session.

Regardless of what motivated the reduction, Tubbs said the department cannot simply stop.

“We don’t want to breach our contract, so we’re trying to figure out a way to continue,” he said. He has been talking with the governor’s budget office about potential ways to shift money between programs.

Gov. Steve Bullock would have been able to consider an amendatory veto if the bill had reached his desk before the Legislature adjourned, but GOP leaders delayed sending bills to force him to choose only between approving and vetoing them.

“DNRC will need to find resources internally to do this critical work,” Budget Director Dan Villa wrote in response to written questions.

The governor’s office declined to make him available for an interview, saying he was too busy reviewing more than 150 bills the governor must sign or veto within a few days. Asked what Villa had done to vet the cut and who he had spoken to at DNRC about it, he wrote:

“End of session budget negotiations are handled by (the Office of Budget and Program Planning) and the Governor’s Office based on input from agencies throughout the session to ensure the overall picture of the budget is considered, as opposed to just one agency’s perspective.”

When Tubbs was asked if Villa had talked to him or his team before the cut was made, he said, “It’s really a Nancy Ballance issue,” noting that she had carried two bills to dismantle the commission. Neither became law.

Ballance, a Republican from Hamilton, disputed any suggestion that the amendment was a backdoor attempt to undermine the implementation of the CSKT Compact. Speaking both about her bills and the budget cut, Ballance said the intent was simply to remove a governing board from the books that was no longer needed.

“Everyone agreed there were no more reserved water rights to be negotiated, no purpose any longer for the compact commission,” she said.

Ballance did not remember where the original suggestion to cut that funding had come from during early session budget negotiations. She said she had been unaware that the reduction would affect fieldwork by DNRC, which she thought had been funded by a different line item in the last two-year budget.

Villa also did not specify where the original idea started and did not answer a question about when it became apparent the proposed cut would jeopardize the Compact Implementation Technical Team. Other members of the conference committee who approved the cut after less than two minutes discussion also echoed Ballance and said they did not know the money paid for anything more than commission meetings.

Tubbs said it was adequately explained when the cut had first been suggested. He said it should have been obvious that the reduction would affect operations simply because the dollar amount was so large. Meetings of the commission were cheap, just a few thousand dollars a year to cover travel and hotel rooms.

“It’s a significant reduction,” he said. “We were caught a little off guard and we’ll try to make sure we manage it at the end of the day.”

Leaders from the Blackfeet tribal government could not be reached for comment.