A Montana water rights bill that would end a years-long debate was passed by a congressional committee today, the next step in ensuring irrigators and the Confederated Salish and Kootenai Tribes can avoid lengthy and costly adjudication of irrigation rights.
Members of the Senate Indian Affairs Committee passed the Montana Water Rights Protection Act on Wednesday afternoon, the first action federal lawmakers have taken on the bill since it was introduced by Montana Sen. Steve Daines in December. Sen. Jon Tester co-sponsored the bill.
The bill would resolve a century-old water rights dispute and allocate $1.9 billion to settle federal damage claims and to rehabilitate the deteriorating Flathead Indian Irrigation Project. In exchange for the tribes’ agreement to relinquish claims to off-reservation water rights, the bill would return control of the National Bison Range on the Flathead Indian Reservation to the tribes.
The bill would nullify any conflicts in the state legal system between the CSKT and landowners over water rights that could affect much of the state’s irrigated land.
“For years, this has been a polarizing issue in Montana,” Daines said during an Indian Affairs Committee meeting late last month. “We have a constitutional duty to bring resolution to the CSKT water dispute, helping the tribe quantify and realize the water they are entitled to under the Hellgate Treaty, as well as a hundred years of federal court precedents. We must also provide a practical solution to resolve this significant liability for the United States, to protect Montana’s agricultural economy and, as I mentioned earlier, protect the water rights to all Montanans.”
The compact narrowly passed the Montana Legislature in 2015, but needed congressional approval to ratify the agreement. The Trump administration signaled its support for the compact in November.
“It does great things for building infrastructure, both inside the reservation and outside; it does great things for providing certainty to towns and water owners across Montana,” Tester said last month. “We need this water settlement for Montana. We need it for predictability. We need it for certainty. We need it to be able to continue to grow our economy.”
The foundation of the water compact is the 1855 Hellgate Treaty, which ensured CSKT rights to in-stream water rights beyond the borders of the Flathead Indian Reservation because the treaty guaranteed tribal members the right to fish at “all usual and accustomed places.”
Some Montana Republicans, however, have opposed the bill, arguing that it is improper to base a water agreement on the treaty, parts of which they consider archaic.
Earlier this year, state Sen. Al Olszewski and four other Republican lawmakers urged Daines to withdraw the bill, saying the state legislation is based on flawed legal logic and yields too much control of water rights to the tribes. If passed by Congress, the bill would harm western Montana landowners, according to opponents, who expressed confidence that in the absence of a federal bill, Montana landowners stand a good chance of prevailing in water rights conflicts in state court.
On the contrary, Daines said during last month’s Indian Affairs Committee hearing that federal courts have repeatedly upheld treaty-based water rights similar to the CSKT’s.
Thousands of off-reservation CSKT water claims that could result in irrigators losing control of about 70% of their irrigation rights are currently pending, Daines said last month.
Two amendments were made to the bill on Wednesday, though the language of those amendments is not yet publicly known. Text of the changes wasn’t discussed during the committee meeting or immediately posted online.
Spokespeople for Daines and Tester didn’t immediately respond to requests for comment on Wednesday afternoon.
“This legislation – which is long overdue – is the result of years of negotiation and represents an innovative, collaborative solution. The water compact reflects a positive, forward-looking approach to water management, community development and ecosystem recovery,” said Tom France, regional executive director for the National Wildlife Federation, in a Wednesday press release. “The Salish and Kootenai Tribes played a pivotal role in saving bison from extinction in the late 1800s. This act will right a historic wrong by returning management authority of the National Bison Range to the tribes.”