The Salish and Kootenai tribes are locked into battle with legislators intent on upending past Montana Supreme Court rulings over Flathead Reservation water rights.
The high court on three separate occasions has told the Montana Department of Natural Resources and Conservation (DNRC) that it cannot issue state water-use permits on the reservation until federal water rights reserved for the tribes are quantified.
The dispute ultimately stems from the Flathead Allotment Act, which opened the most productive parts of the reservation to non-Indian settlers in 1910.
Many non-Indians who own private land within the reservation’s boundaries maintain that the state, not the tribes, should have control over the water they use. The tribes, however, contend that they have ultimate jurisdiction over all reservation water, whether it flows underground or in streams and rivers.
DNRC repeatedly has tried to manage non-Indian water allocation on the 1.2-million-acre reservation, but the tribes have challenged them at nearly every step. In response, the agency has tried to thwart the judicial branch either by ignoring its rulings or asking legislators to simply rewrite the law. The last such legislative maneuver occurred in 1997.
In its latest order, rendered 5-2 last December, the Montana Supreme Court again blasted DNRC and warned that it was tiring of the agency’s refusal to follow the law.
“These rules do not originate in rocket science,” Justice Jim Nelson wrote in the ruling. “Indians own their reserved water rights. Those rights are superior to state appropriative water rights. To date those reserved water rights have not been quantified as to amount or priority on the Flathead Indian Reservation. Therefore the state cannot grant to some third party a right to appropriate or use water that the state may not own.”
In the most recent back-door move, the agency and non-Indian irrigators last week jammed a new series of thumb-nosing bills through the Legislature.
One of the measures, Senate Bill 416, proposes to exempt reservation water users from provisions of the 1973 Montana Water Use Act by no longer requiring citizens to apply for permits before water is taken.
Under the bill, sponsored by Sen. Greg Barkus, R-Kalispell, private landowners and municipalities would instead revert to altering existing claims and making new claims to reservation water wherever they please and then filing a notice of their actions with the DNRC.
DNRC attorney Don MacIntyre confirmed in an interview that disputes over such claims would have to be resolved on a neighbor-by-neighbor basis or by suing in state district court, a practice opponents decry as dangerous, as well as foolhardy.
“You basically go and do it, and it’s up to someone else to stop it,” explained a source close to the process who requested anonymity.
The state and tribes for the past three years have been establishing a framework to conduct full-blown talks over reservation water through the Montana Reserved Water Compact Commission. The two are also working with the commission on an interim agreement that would potentially create joint tribal-state licensing for some types of water use. All permitting across the reservation is currently on hold because of the court rulings and ongoing jurisdictional disagreements.
The Republican-controlled Senate last week voted 28-21 to pass SB 416 to the House. Barkus told his colleagues that his bill will allow the state to maintain its claim of control over reservation water. But Sen. Jon Ellingson, D-Missoula, argued that SB 416 will likely drive the negotiating parties away from the table.
“Tempers are high,” Ellingson said. “People are mad at each other. I expect we’re going to see a lot more problems” if the bill is approved.
Sen. Ken Toole, D-Helena, also noted that a state financial prediction prepared for SB 416 assumes that the tribes will file suit over the matter. Sen. Glenn Roush, D-Cut Bank, added that the Montana attorney general’s office estimates a court challenge could cost the state $3 million, not the $26,500 envisioned in a hastily prepared fiscal note.
MacIntyre says DNRC takes no position on SB 416, but department fingerprints and support are apparent. Even MacIntyre acknowledges that the department floated a similar bill proposal to the governor’s office before the 2003 Legislature convened. After Republican Gov. Judy Martz declined to authorize the measure, Helena attorney Jon Metropoulos, who represents reservation irrigators, wrote up the draft that was introduced by Barkus.
According to MacIntyre, the agency contends that if no permits are issued and reservation residents claim water on their own volition, the high court’s rulings would not be violated.
Tribal officials, however, warn the pending legislation represents a one-way ticket back to court.
“What it means is total anarchy and a constitutional challenge” if the bill is approved, said tribal attorney John Carter. “It’s still an authorization process. It doesn’t matter if actual permits are issued or not.”
Metropoulos, a key player in the coalbed methane industry’s fight against state water-quality standards, also authored SB 417. The bill, sponsored by Barkus, calls for additional parties to have seats at future compact talks and spells out other parameters for interim agreements.
During a second-reading vote last week, the Senate rejected SB 417 by a 10-39 margin, but opponents are concerned that pieces of the bill will surface elsewhere.
Also in the mix is SB 194, which the state claims it needs for an interim water agreement to go forward. While the tribes initially expressed reluctant support for the bill, amendments drafted by Metropoulos and approved in committee tainted their enthusiasm. Last week, the Senate passed the bill to the House by a 43-7 margin.
“We wanted SB 194 unamended, but there are a lot of people who have legitimate concerns about the interim plan,” said compact commission program manager Susan Cottingham. “Our goal is to still get an interim plan.”
Another proposal, House Bill 683, sponsored by Rep. John Brueggeman, R-Polson, would allow the communities of Polson and Charlo to move ahead with municipal water improvements outside of an interim state-tribal agreement or a final compact and without applying for state permits. The Republican-controlled House last week sent HB 683 to the Senate on a final 59-38 vote.