by Dr. Ed Berry
Senator Verdell Jackson claimed, in his public letter in the Daily Inter Lake (February 6, 2015, page A4) that the Montana CSKT Water Compact is similar to the situation in Idaho. He wrote:
In Idaho, a similar situation occurred where the federal government filed 6,000 claims on behalf of the Nez Perce tribe and only six tribal claims were successful.
On this basis, he concluded that if the CSKT file 10,000 water rights claims in Montana, only a very small number will survive and, therefore, there is little downside to rejecting the Compact.
Senator Verdell Jackson wrote:
In my 16 years in the Legislature, I have never voted for a bill because of a threat or because of the rights it did not take away from us. These two statements have been the main selling points of the proponents of the CSKT Water Compact.
The tribes may make good on their threat to file 10,000 water rights claims in the Montana Water Court adjudication if the compact does not pass, but it certainly does not guarantee they will be successful in receiving water rights.
Senator Jackson could not be more wrong.
If Montana legislators reject the Compact based upon Senator Jackson’s claim, they will make the biggest mistake of their political careers. Here’s why …
First, the 10,000 potential claims are a fact, not a threat. If we reject the Compact, the CSKT will file some 10,000 water rights claims.
Second, the lesson of the Nez Perce negotiated settlement is exactly the opposite of what Senator Jackson claims.
Attorney Duane Mecham is very familiar with the Idaho Snake River Basin Adjudication. He worked on it as federal attorney for several years on behalf of several federal agencies. He was also a chair of the federal negotiation team in the Nez Perce Tribal (NPT) water right negotiations the comprehensive settlement of NPT claims in 2004.
In a recent public email, specifically to counter the claim of Senator Jackson, Attorney Mecham provided the following information as a lesson to Montana.
In Idaho, unlike in Montana, federal agencies and Tribes had to file claims before they could begin negotiations toward a compact.
The United States, as trustee, filed off-reservation instream water right claims on behalf of only one tribe, the Nez Perce Tribe, because only the Nez Perce Tribe, like Montana’s CSKT, has a Stevens treaty like the Hell Gate treaty that provides off-reservation water rights.
Both the US and the Tribe made extensive off-reservation instream water right claims with a time immemorial priority date as a trump card.
Idaho and its water users strongly objected to the NPT off-reservation reserved claims, but after they reviewed the law and realized they had much at stake, they agreed to negotiate a settlement.
The State of Idaho reached comprehensive settlements with the tribes on all three Indian reservations in the Snake River basin in Idaho, Fort Hall, Duck Valley, and Nez Perce. Each settlement achieved robust on-reservation water rights for the tribes.
What Senator Jackson did not tell you …
… is Idaho agreed to give the Nez Perc Tribes extensive instream water rights in exchange for the Tribes giving up all but 6 of their filed claims.
So the precedent set was not a loss for the Tribe, as Senator Jackson would have you believe, but a big win for Stevens-Treaty Tribal claims of off-reservation water rights. This precedent is a strong warning to those who would reject the CSKT Compact thinking they will get a better outcome in court trials. They won’t.
Further, the Idaho settlement gave the Nez Perc Tribe considerably more off-reservation instream flows than the Montana Compact gives the CSKT. (Shhhh … don’t tell the CSKT.)
Idaho also agreed to allow almost 500,000 acre-feet of water from the upper Snake River to be released and delivered downstream (below Hells Canyon Dam) to augment instream flows in the Snake River for fish. This is over 5 times the amount of water the proposed Montana Compact provides the CSKT from Hungry Horse Reservoir.
Attorney Mecham concludes Idaho recognized its exposure and made major accommodations to resolve the NPT off-reservation instream flow claims. He wrote:
The Nez Perce settlement represents a treasure trove of lessons-learned that should be considered in the Flathead context.
Senator Jackson and all Compact opponents think the Hellgate Treaty does not justify off-reservation water rights for tribes. They have ignored a thorough review of the case law that has followed the Hellgate Treaty and which will serve as precedent to how future courts will interpret the Hellgate Treaty.
Senator Jackson and other Compact opponents are playing lawyer when that is not their field of expertise. Playing lawyer when you are not one is a sure way to lose your ass big time. If it were only his ass at stake, I would not worry. But Compact opponents are putting the asses of all Montanans at serious risk.
In conclusion …
Senator Jackson’s claim that only 6 of nearly 6000 claims were affirmed ignores the fact that Idaho recognized these claims were valid and set aside vast amounts of water flow to settle these 6000 claims.
Senator Jackson and other Compact opponents may think they can defeat any future CSKT water rights lawsuits by hanging tough. They don’t know how courts work. You can be the meanest, toughest dude in the valley but it won’t mean shit in a court of law when the CSKT will have “time immemorial” water rights and the federal government as a funding partner.
Senator Jackson and other Compact opponents think they could have negotiated a better deal. They are delusional. The fact is the Compact Commission has done an excellent job of negotiating the best possible deal for Montana. Don’t blow it.