by Dr. Ed Berry
Montana Senator Debby Barrett wrote a public letter on February 11 against the CSKT Water Compact. Her letter, like all letters against the Compact, fails to prove the people of Montana will be better served by rejecting the Compact rather than by approving the Compact.
Her letter shows she does not understand why the Montana legislature created the Reserved Water Rights Compact Commission in 1979, the facts of the Compact, the role of “principles” in making a decision, and the real issue of the Water Compact.
The issue is not whether the Water Compact is perfect, as all Compact opponents seem to think in their critiques. The issue is whether Montana will be better served with the Compact or without the Compact. The difference in outcomes of one road versus the other road is what matters. The Compact is a classic “Robert Frost” decision. The road taken will make all the difference.
Senator Barrett should have evaluated the differences in outcomes between accepting or rejecting the Compact before deciding to reject it. She did not do this. Therefore, her claims are frivolous.
Senator Barrett says voting for the Water Compact will “compromise” her “principles.” On an issue so critical to Montana, she should state her “principles” and tell how her “principles” cause her to reject the Compact. Her argument against the Compact is so devoid of facts and logic that we must question her “principles.”
Are her “principles” the same as those used by right-wing radicals who fail to vote for the most conservative candidate in final elections? So they vote Libertarian or not at all?
Are her “principles” the same as those used by right-wing radicals who claim they cannot vote for “the lesser of two evils”? If so, then Senator Barrett does not understand “principles” and until she does, she is as dangerous to Montanans as an unqualified pilot is to the passengers.
If in her mind approving the Compact is “evil” as she has described it, then had she done her homework she would have found rejecting the Compact would also be “evil.”
I wrote extensively about principles before the last election. Had Senator Barrett studied my arguments she would understand that our most important principle is to vote to achieve the greater good, even if this means voting for the “lesser of two evils.”
Therefore, the real issue of the Compact is which road, approving or rejecting, achieves the greater good for Montana.
Here are the reasons Senator Barrett gives for her rejection of the Compact and my comments on her reasons.
The legislature’s role is to examine a proposed compact and decide whether or not to enact it into Montana law. The legislature’s responsibility and authority includes amending proposals if necessary and approving all state costs associated with a compact such as this one. (The price tag of the state’s share on the CSKT compact is $55 million total.) But at an informational meeting held by proponents, the legislature was warned that it cannot amend the proposal. It’s a “take it or leave it” deal.
Senator Barrett has not read the reasons the Legislator formed the Compact Commission. The Montana legislature created the Reserved Water Rights Compact Commission in 1979 to:
- conclude compacts for the equitable division and apportionment of waters between the State and its people and the several Indian Tribes claiming reserved water rights within the state (MCA 85-2-701), and
- between the State and its people and the federal government claiming non-Indian reserved waters within the state (MCA 85-2-703).
The directions say “conclude”. The Legislature is not part of the negotiations and is not in a position to renegotiate details of the Compact with the other parties. So, yes, it is “take it or leave it.”
That insult to the constitutional role of the legislature is enough for me to want to leave it. Other proposed compacts have not been thrust on us, the legislature, with such arrogance and disrespect for legislators. But there are other good reasons, too.
Wow! Senator Barrett has thrown Montanans under the bus because she feels the Compact Commission insulted her and treated her with “arrogance and disrespect.” Barrett is the one who is arrogant. She should respect the Compact Commission and the work they have done to produce the proposed Compact. Here she puts her personal feelings and possibly her dislike with someone on the Commission above the interests of the people of Montana.
The 2013 Legislature refused to ratify the last CSKT water right compact for many good reasons concerning its legality and equal treatment of this state’s citizens, both on and off the reservation. In fact, the primary proponents of the compact this time concede that the previous version was very flawed and needed to be rejected.
Now it has been re-introduced, but not much changed or improved. While one portion of it was somewhat re-negotiated during the interim between the 2013 and the 2015 legislative sessions, the result did not improve that portion enough to protect local individual water users, both tribal members and nonmembers, and failed completely to address legal and policy shortcomings, on and off reservation, in the original proposal.
Off the Flathead Reservation, these failures include more than a dozen permanent surrenders of the legislature’s authority over water in Montana, allowing the CSKT to choose whether to obey legislative enactments or not and giving them complete immunity from compliance with important aspects of Montana water and environmental law, including the Montana Environmental Policy Act.
Senator Barrett disagrees with all Compact attorneys but she cannot rebut their interpretations of the law. Does she really believe she is a better Compact attorney than the professionals? If so, the onus is on her to prove the attorneys are wrong. Just making her invalid claims does not prove the attorneys are wrong. She continues with her arrogant attitude in all of her continuing claims against the compact.
It also requires the state to give partial ownership of some of its water rights and its contracts for water to the CSKT and to manage those assets for the Tribes’ benefit, rather than all citizens of the state. In essence, this proposed compact requires the state to limit its legal authority off the reservation by sharing it with the CSKT — permanently.
Obviously, the settlement must be permanent or it would not be a settlement. Does Senator Barrett have no experience with how law works?
On reservation, it gives the CSKT the water right to 110,000 acres of irrigated land owned by individuals, whose irrigation districts have filed on that same water right. It also reduces irrigation water to many if not all these irrigators, who are tribal members and nonmembers, and it establishes a unique water administration code and governing body, with the state of Montana again compromising its constitutional authority over water rights.
Senator Barrett does not understand how the Compact solves the water distribution problem in the best way possible and certainly far better than the product of thousands of uncoordinated court decisions she prefers.
I recognize there are powerful supporters of SB 262, including some elected officials who managed to negotiate changes to the proposals, protecting their constituents at home. Having heard the evidence as a member of the Compact Commission, I believe the off-reservation in stream flow water rights the Compact gives are not scientifically based or well-grounded in law or history. But I also recognize that the CSKT and their public relations people have artfully threatened much of the state with water right filings for in stream flows if the Legislature doesn’t simply accept this “take it or leave it” deal.
What Senator Barrett believes is irrelevant. Only the facts are relevant. She has not started her argument with facts and she has not made a valid case against the Compact.
As a rancher and a senator who values little ahead of private property rights, I think I know when to call a bluff, and when to stand my ground no matter what. This is such a time. Not all values and principles should be compromised away. I do not believe my fellow ranchers and farmers really want to turn their backs on the thousands of Montanans whose property, including water rights, will be devastated by this proposal.
You got to know when to hold ’em and know when to fold ’em. Since Senator Barrett does not understand the question on the floor or the Compact, her bluff will fail and Montanans will pay the price of her bluff.
Senator Barrett does not understand principles. This thinks incorrectly “Not all values and principles should be compromised away.” She does not understand the highest principle is to choose the greater good. The issue is whether Montana will be better served with the Compact or without the Compact. Does she care about her feelings or about Montana?
The proposed CSKT compact is the perfect example of overreaching in negotiations, causing their failure. The CSKT and federal government on their behalf demanded too much, and the compact commission negotiators surrendered too much. As a state we tried for years to negotiate a deal good for all. In this compact alone, that has proven to be impossible.
Senator Barrett has not shown there was “overreaching in negotiations” and she has not shown there is a “failure.” Lack of perfection is not a failure. No negotiated settlement makes all parties perfectly happy.
So, it’s time to recognize that this compact is not going to work, and we must prepare to protect the state’s rights, interests and sovereignty. This compact is not just poor policy, sacrificing the rights of thousands of Montanans to protect the rest of the state is the worst policy possible.
Because Senator Barrett does not understand the Compact, she calls it a failure and is willing to throw Montanans under the bus. She has not made the necessary case that Montanans will be better off by fighting water rights issues in court for 20 years than to approve the compact and get on with our lives and business.