After extensively reviewing the proposed Confederated Salish and Kootenai water compact agreement and its related appendices, I have come to the conclusion that it is time for the legislature to approve the water compact negotiated by the state of Montana and the Tribes.
There are certain realities that the compact requires us to recognize. These realities have been difficult for some to accept, but they are realities nonetheless. The first is that the Treaty of Hellgate grants the CSKT certain rights, including the right to claims for water on and off the Flathead Indian Reservation. Secondly, these rights were established well before Montana gained statehood.
The purpose of the compact is to quantify the Tribes’ water claims, to create a mechanism to resolve conflicts over future water needs, to protect existing water rights, and ensure that irrigators have access to water at levels of historic consumption.
Some say they object to the compact because it violates property rights principles. Fact is, the CSKT have property rights, too. If you support property rights, then you are obligated to defend all property rights, including the Tribes’.
Additionally, there is nothing in the compact that will violate the property rights of the people of Montana. If anything, the compact upholds property rights by preventing any decrease in property value associated with uncertain water rights.
Another objection to the compact that has been raised by opponents is the appropriation of the funds for water delivery improvements. The total cost of the compact, which would include provisions to make farm water delivery systems more efficient, replace broken headgates and install water measurement equipment, would cost a total of $55 million, of which $8 million will be funded this session if the compact passes.
While this amount may seem large to many, I would encourage them to consider two facts. First, this money will not be appropriated without accountability, and it isn’t given in one lump some. The appropriations are for specific projects and water delivery improvements, the progress of which will be monitored.
Second, a price tag of $55 million is much less than what litigation would cost. On the low end, the litigation that would result if the compact fails would cost hundreds of millions of dollars. To adjudicate the 36 basins that would be re-opened by the compact alone would cost more than $70 million.
That doesn’t include the cost to taxpayers for litigation involving the state or to individual water rights holders who will have to defend their rights in court. Of the two, passing the compact is clearly the more fiscally responsible choice.
Failure to approve the compact will result in litigation of the Tribes’ claims. It will also require litigation of every other water claim that conflicts with the Tribes’ claims. Opponents seem to believe that litigation will lead to a “better result.” A “better result” evidently means less water for the Tribes. I suppose that is possible, but it’s not probable.
Courts have broadly interpreted the Hellgate Treaty language to the benefit of the Tribes and it is reasonable to expect they will do the same here. But even if they interpret the treaty interests more narrowly, to what extent will non-tribal private interests benefit? So far as I see, no one has identified any quantifiable benefit to litigation.
It is important to also realize that the cost of this litigation will fall upon water users and not the state of Montana. Thousands of individual claims will have to be separately quantified through costly litigation. Thousands, perhaps tens of thousands of water users will be brought into the fight.
It will cost tens of millions of dollars to fund the lawyers and experts. And it will take years, perhaps decades to settle those claims. And to what benefit? It seems to me a basic cost benefit analysis would conclude that the risk and cost of a poorer outcome and the ongoing uncertainty are less beneficial than the settlement.
Existing water users are protected in the compact. Many have raised questions and voiced concerns regarding the level of detail in the abstracts of the compact and, while complicated, these details provide a high degree of visibility and predictability. The compact gives everyone security in their claims and permits the Montana Water Court to conclude much of its work.
The CSKT water compact has been well thought out and negotiated to provide all parties the water resources that they need. For these reasons, I think the principled and practical position is to support the compact.