Why Montana must approve the CSKT Water Compact

by Dr. Ed Berry

EXB150As Robert Frost wrote, there are two paths and the path taken makes all the difference. A true evaluation of the Compact requires looking ahead to see what is at the end of each path.

Compact rejection will harm Montana.

If Montana dismisses the Compact, here is what lies ahead according to the top Compact attorneys in Montana.

The CSKT will file hundreds to thousands of off-reservation water-rights lawsuits. Montanans will pay for long, expensive legal battles in their attempt to defend their water rights.  It will be the most costly and time-consuming legal battle in the history of Montana. There are not enough attorneys in Montana to handle all the legal cases.

The federal government will pay all CSKT legal costs. Montana cannot afford to fight the federal government. These court trials will take an estimated 20 to 30 years. The CSKT has overwhelming odds to win its lawsuits because CSKT water rights begin either when they signed their treaty or are from “time immemorial.”

During the decades of lawsuits, the State of Montana will not be able to issue any new water permits. Businesses that might have moved to Montana may go elsewhere. When the dust settles, Montanans will have wasted their money, their time, and their opportunity to build up Montana. History books will reveal how Compact opponents caused their own self destruction.

All Compact objections fail.

In May 2014, Hertha Lund wrote a comprehensive report that rebuts all Compact objections and shows how the Compact will benefit Montana.  On December 1, 2014, Lund published a short rebuttal to Compact opponents’ claims.

On August 22, 2014, Helen Thigpen, Staff Attorney for Montana’s Legal Services Office, published a comprehensive rebuttal to Compact opponent’s claims.

No Compact opponent has ever shown that Lund and Thigpen are wrong. Therefore, Compact opponents lose their case by default.

No Compact opponents have shown Montana will fare better by rejecting the Compact. Opponents have only criticized the Compact and thereby missed the big picture.

Compact does not “give” CSKT off-reservation water rights.

The Compact acknowledges the CSKT off-reservation water rights which is a necessary starting point of the Compact negotiation. The opponents who object to the CSKT off-reservation water rights should have been present 160 years ago when the CSKT negotiated its treaty with the US government.

Compact opponents are 180 degrees off.

Compact opponents believe the Compact will give the federal government control of our water and the feds will use this control to depopulate western Montana. The fact is the best way to stop the feds from controlling Montana water is to approve the Compact.

Project Irrigators support the Compact.

On January 6, 2015, project irrigators sent two letters to Governor Bullock and Attorney General Fox. One letter is from “the farmers, ranchers and district landowners who operate more than 11,000 acres in the combined 22,000 acre Mission and Jacko Valley Irrigation Districts.” The other letter is “from the farmers and ranchers and landowners who operate more than 45,000 acres of land on the Flathead Indian Irrigation Project.”

Both letters strongly support the Compact and “rebut some erroneous claims being promoted by Compact opponents”.

Rep. Dan Salomon’s election in November 2014 to Montana’s HD 93 was a project vote for the Compact. HD 93 includes most of the irrigation project.

The $55 million “settlement” fee is necessary and beneficial.

The Compact is clear the $55 million “settlement” is to be used as follows:

  • $30 million is for a revolving pumping fund needed only in drier years.
  • $4 million is for stock water management
  • $4 million is for farm improvement
  • $4 million is for hydrologic data collection and measurement
  • $13 million is for habitat conservation.

This money will improve irrigation efficiency and alleviate negative impacts of changes in irrigation necessary for water use efficiency.

Here are some benefits of the Compact:

  • The Compact harms no one and it does not remove anyone’s proven water rights.
  • The Compact will stop forever CSKT lawsuits for water on and off its reservation.
  • The Compact will stop forever concern about CSKT calls on water off-reservation.
  • The Compact will help the irrigation project produce more for less water used.
  • The Compact is the best way to manage water in the checkerboard pattern of land ownership in the irrigation project.
  • The Compact will allow Montana to move forward to develop its economy.
  • The Compact includes drought protection for off-reservation irrigators because CSKT has agreed to share in water shortages in dry years.
  • The Compact will assure Montana has first right to water from Hungry Horse Reservoir because it stops all calls on Hungry Horse water by operations down-river in Idaho, Oregon, and Washington. This is significant drought protection for western Montana.

These last two points alone make the Compact a good deal for western Montana. Montana’s Compact negotiators have done a superb job of securing Montana’s interests.

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