12.31.20

Historic Water Rights act becomes law

PABLO — Time crawls by until it’s passed — then it has flown by. Such is the case of the Confederated Salish and Kootenai Tribes Federal Reserved Water Rights Compact (FRWRC), officially known as the Montana Water Rights Protection Act (MWRPA).

After decades of discussions and official negotiations with the Montana Reserved Water Rights Compact Commission (MRWRCC), the CSKT’s FRWRC was signed into law by the president of the United States Monday.

All that was needed to ratify the MWRPA was the signature of the leaders of the Flathead Nation, and on Tuesday, that happened.

The Montana Water Rights Protection Act’s $1.9 billion settlement was a rider in $4.8 trillion fiscal year 2021 federal budget that also includes $900 billion COVID-19 stimulus bill. The MWRPA also includes the CSKT management of the National Bison Range

The MWRPA, officially known as Senate Bill - 3019 had the support of the Montana U.S. Congressional delegation, the Department of Justice, the Department of Interior and the President Trump Administration, as well as the Governor Steve Bullock Administration and the Montana Legislature.

“We greatly appreciate the Montana Congressional Delegation,” CSKT Chairwoman Shelly Fyant said after the MWRPA was passed by the Senate and forwarded to the president as part of the federal budget bill. The president had already indicated his support so it was essentially a done deal that got done, Monday. “From Senator Tester’s initial introduction of the bill four years ago, to Senator Daines’ introduction, amendments and work with the Trump Administration this year and to both of our Senators urging their respective leaders to include the bill in the omnibus appropriations bill, and to Congressman Gianforte’s work with the Minority Leader in the House, all played pivotal roles and the residents of Montana should be thankful for their efforts. Governor Steve Bullock must also be thanked, along with Tim Fox and many, many more.”

"This victory has been decades in the making, and is a huge win for Montana taxpayers, ranchers, farmers, and the tribes," Sen. Tester said. "Water is among our most valuable resources, and ratifying this compact, honors our trust responsibilities, creates jobs, and invests in infrastructure while providing certainty to water users everywhere. I’m thankful we were able to work together to get this critical legislation across the finish line."

His fellow Montana Senator, Steve Daines also expressed satisfaction that the long journey to resolution of the CSKT FRWRC has finally come to an end.

“After years of hard work, the U.S. Senate just passed our bipartisan bill that permanently resolves the century long CSKT water dispute and will soon become law. Without our bill, thousands of Montanans would be forced into very expensive litigation and our ag economy would’ve taken over a one billion dollar hit,” Sen. Daines said upon the MWRPA passage in the Senate and headed for the signature of the president. “That’s why we’ve worked so hard to pass our bill that protects the water rights of all Montanans, saves taxpayer dollars, creates jobs, modernizes rural infrastructure projects, protects Montana agriculture and prevents very costly litigation. This is a win for all Montanans.”

The third leg of the Montana Congressional delegation also chimed in favorably on the resolution of the CSKT FRWRC.

“I am glad we were able to get this done to bring certainty to Montana’s farmers, ranchers, the Salish and Kootenai tribes, and all the water users across the state,” said Republican Montana Governor-elect and for a few more days U.S. House Rep. Greg Gianforte. “Thank you to my colleagues in the Senate for their work on this legislation.”

Upon learning of its passage, others including many from the agricultural community chimed their support.

“Thank you to Senator Daines and Senator Tester for their leadership and continued perseverance for a permanent water settlement,” said Jim Steinbeisser, president of the Montana Stockgrowers Association. “An additional thanks goes to Representative Gianforte for his stewardship in the house. The success of Montana’s agriculture industry is dependent upon water and water rights certainty. It is easily the single most important resource for people across Montana, which is why MSGA has long supported an agreement such as the Montana Water Rights Protection Act.”

Tim Burton, Executive Director of the Montana League of Cities and Towns, said. “The passage of the Compact will benefit all of Montana, while providing certainty and protecting senior municipal water rights for many of our members.”

Mike Murphy, Executive Director Montana Water Resources Association, stated, "Passage of the Montana Water Right Protection Act provides for settlement of the Confederated Salish-Kootenai Tribes water right claims that are crucial to providing certainty regarding adjudication of Montana water rights. Passage of this important settlement legislation will prevent costly litigation, protect water rights throughout Montana, and very importantly, recognize and protect Montana's primacy over our water resources. We extend our appreciation to Senator Steve Daines, Senator Jon Tester, and Congressman Greg Gianforte for their support and efforts to enable passage of this important legislation.”

Walt Sales, President Association of Gallatin Agricultural Irrigators, said, “On behalf of the Association of Gallatin Agricultural Irrigators (AGAI), I wish to express our enthusiastic appreciation for the passage of the Montana Water Rights Protection Act. Senator Daines’ continual work and ‘never say never’ attitude will be enjoyed by many of us here at home. Senator Daines understands the value in this equitable solution, but rest assured the irrigators in the Gallatin Valley will be able to tell the story of a Montana solution that kept agriculture alive and focused on daily chores for generations rather than looking back on the dark days of litigation, telling the story of lost opportunities. From our 400+ irrigating members, THANK YOU, for a well-fought, positive outcome from Washington D.C., proving Montana's work ethic value.”

The MWRPA also had a lot of opposition, and much of that opposition has been focused on Republican Senator Steve Daines, SB - 3019 sponsor.

After the presidential signing, a group of conservative Montana legislators, led by House Majority Leader Brad Tschida (R-Missoula) issued a statement chastising the bill and Daines. It reads, “In a clear betrayal of our state and of President Trump, Senator Daines slipped the CSKT Water Compact into the coronavirus relief bill, despite his legislation having nothing to do with coronavirus. With a less than 5 percent chance of being enacted, the deceptively-named Montana Water Rights Protection Act was added at the last minute. This went against his oath of office in which he swore on the Bible to protect the constitution… This was a sad day for the people of Montana and showed blatant disregard for the will of the People.”

The CSKT FRWRC was first introduced in the Montana Legislature in 2013 but it didn’t get out of the House Judiciary Committee.

A second introduction in 2015 at the Montana Legislature was ratified. Senator Jon Tester, (D-Mont.) carried the bill to the U.S. Senate in 2016 but it didn’t have the backing of the Obama Administration due to, among other things, its $2.3 billion price tag and Sen. Daines backing due to that and other concerns of his.

Following tweaks to the original FRWRC bill including cutting its cost to $1.9 billion, renaming it the Montana Water Rights Protection Act and other things to sate the concerns of Senator Steve Daines, (R-Mont.) he introduced the bill in this Senate session.

However, it’s been a long journey prior to its recent passage by the U.S. House of Representatives and the U.S. Senate, and the president’s signature, followed by the Tribal Council’s.

Brief History of the FRWRC

FRWRC was created when the U.S. Supreme Court made the decision in the 1908 Winters vs. United States case about a Fort Belknap Indian Reservation water claim. In the Winters decision, the Supreme Court ruled that when the U.S. Congress or the president sets aside land out of the public domain for a specific purpose, such as an Indian reservation, national park or national forest, a quantity of water is reserved based on the amount necessary to fulfill the specific federal purpose.

Prior to that, leaders of the Salish, Pend d’Oreille and Kootenai people on July 16, 1855 signed the Treaty of Hell Gate. In the Treaty, the embryonic federally recognized Flathead Nation agreed to cede 12 million acres of their Aboriginal Homeland, however the Homeland encompassed more than 22 million acres, to the federal government but reserved 1.25 million acres that is now the Flathead Indian Reservation. The Treaty of Hell Gate was ratified on March 8, 1859.

Although the Confederated Tribes ceded a huge swath of land, they retained numerous preexisting rights to the land. The most important retention of the time-immemorial rights was articulated in Article 3 of the Treaty of Hell Gate. It proclaims: “The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.”

Article 3 is the bedrock foundation of the Flathead Nation’s FRWRC claim, and opposition to it did not crack the foundation.

In 1972 Montana adopted its rewritten constitution, and among the many forward-looking articles was Article IX, section 3(4) that related to the quantification and administration of water in Montana. It read, “The Legislature shall provide for the administration, control, and regulation of water rights and shall establish a system of centralized records, in addition to present system of local records.”

However, the local records were an inadequate non-centralized quagmire of records, and not a good foundation to base a state-wide centralized system upon. As a result, in 1973, the Montana Legislature took its first steps in the direction towards laying the groundwork for ways to comprehensively catalogue water rights in the state with the 1973 Water Use Act.

To that end, in 1979 the Montana Legislature enacted Senate Bill 28, which established the statewide proceedings for the adjudication of a water rights in the state including federal and Tribal Nations federal reserved water rights.

The bill established the Montana Legislature established the nine-member Montana Reserved Water Rights Compact Commission (MRWRCC), as part of the state’s general stream adjudication effort. The commission’s charge was to negotiate federal reserved water rights claims rather than litigate in the court system.

The federal lands include: the seven Tribal Nation reservations; and the federal land holding agencies that includes, the: National Park Service, US Forest Service, US Fish and Wildlife Service, US Department of Agriculture, and Bureau of Land Management.

The negotiations for the Flathead Nation’s federal reserved water rights compact began in the mid-1980s but were soon put on the off-back burner while lawsuits that would have consequences on compact made their ways through the courts.

The negotiations were put back on the hot front burner in 2001, and public monthly negotiation meetings between the CSKT and the Montana Reserved Water Rights Compact Commission began in earnest then.

The Flathead Nations FRWRC saga ended this week.

The resolution of the CSKT FRWRC now leaves only the Fort Belknap as the only Tribal Nation in Montana without a FRWRC. The state of Montana approved their FRWRC in 2001; it is awaiting the U.S. Congress to approve it.


By:  Bernie Azure
Source: Char-Koosta News