This West Is OUR West

Tester plans to meet with tribes before reintroducing water compact legislation

Perry Backus

Nov 16, 2017

PABLO — U.S. Sen. Jon Tester plans to sit down again with the Confederated Salish and Kootenai Tribes before reintroducing legislation that could move CSKT water compact one step closer to ratification.  Tester spokesperson Dave Kuntz said the senator plans to meet with CSKT officials next month to ensure the process continues to be driven by the tribes. “He wants the tribes to take the lead on this,” Kuntz said. “He is committed to getting it across the finish line. … Jon remains very supportive of the compact and all the work that’s been done to get it where it’s at.” Tester was the sole sponsor of the CSKT compact during the last Congress, introducing it last May. The compact would quantify water rights of the tribes both on and off the Flathead Indian Reservation and provide for the administration of water rights on tribal lands  No action was taken on the measure in the last Congress, though, and it will need to be reintroduced again before it can move forward. The last two water compacts that passed through Congress for the Crow and Blackfeet tribes included support from the entire Montana congressional delegation.  “That’s definitely a critical piece,” Kuntz said. CSKT Communications Director Rob McDonald said the tribes “don’t anticipate an immediate need for reintroduction of the legislation due to the ongoing, productive work with the administration.”

The tribes have met regularly with Tester and other members of the delegation to keep them apprised of discussions with the Interior and Justice departments, McDonald said. “The 2016 introduction of S. 3013 and its favorable hearing resulted in productive discussions between the tribes and Interior and Justice Departments on the federal settlement,” McDonald said. “At the conclusion of those ongoing discussions, the tribes look forward to a reintroduction of the settlement legislation in the Senate.” A recent Montana Supreme Court ruling found the current compact met requirements of the state constitution. The Flathead Joint Board of Control challenged the Montana Legislature’s decision to approve the compact in 2015. The board oversees irrigation on the Flathead Reservation.

Its lawsuit claimed the Legislature’s decision to approve the compact was flawed because it granted a new immunity from lawsuits and other damages. In order to make that change, the board that argued a two-thirds vote of the Legislature was required under the state constitution. The Montana Supreme Court’s ruling concluded the Legislature had not created a new immunity for the state or any other governmental entity and therefore the two-thirds vote requirement did not apply. The Flathead Joint Board of Control discussed the decision during its regular meeting earlier this week with its attorney, Bruce Fredrickson of Kalispell.

Fredrickson said he told the board the decision marked an end to that argument. “Obviously, I don’t know that agree with the decision, but the Montana Supreme Court is the final arbitrator in questions of Montana constitutional law,” Fredrickson said. “The decision is what it is and we’ll move forward from here.” The compact still has to be ratified by both the U.S. Congress and the CSKT before becoming operational.

“Until those things happen, we’re in a wait-and-see mode,” Fredrickson said. “Until we see what Congress does with the compact, we really can’t project or opine on where the compact goes or what the board will do.” Once ratified, the compact would provide funding to modernize the Flathead Indian Irrigation Project, upgrade municipal and tribal water and wastewater systems on the 1.2-million acre reservation, restore and rehabilitate tribal wetlands and streams, improve fencing and treat noxious weed control. Since the water compact passed through the state Legislature with bipartisan support, McDonald said farmers, ranchers, fishermen and water users from across Montana have been working toward federal ratification of the water compact. They also seek resolution of all the tribe’s water-related claims against the United States. The Salish and Kootenai Water Rights Settlement Act introduced by Tester last year would accomplish those two objectives, he said.