The conservative case for the CSKT water compact

by Cory Swanson, Guest opinion, Daily Inter Lake July 29, 2018.

In 2015, the Montana Legislature ratified the Confederated Salish and Kootenai Tribes’ water compact with Montana, which settled all water rights claimed by the tribes under the 1855 Hellgate Treaty. This was the culmination of a multi-year negotiation process between Montana’s Reserved Water Rights Compact Commission and the tribes. The final step in the implementation of the Salish and Kootenai compact is ratification by the U.S. Congress.

The federal ratification debate has inevitably turned political, and now many of the familiar arguments over this compact have returned. I was heavily involved in efforts to finalize the compact and to ensure its passage through the Legislature, working as deputy attorney general in the Montana Department of Justice. Many of the inaccurate claims of Compact opponents, which we disproved in 2015, have been exhumed from the grave in an effort to defeat congressional ratification.

I joined Attorney General Fox’s administration in 2013 as an opponent to the compact. In my years in private practice, I had worked as the attorney for the Montana Republican Party, took on radical environmentalists, strongly supported multiple-use recreation on federal lands, and had gone to court against tribal over-reach over non-tribal members. I, therefore, viewed the compact as a water grab that was being foisted upon non-tribal water users in the waning days of the Schweitzer administration.

Facts and reality changed my mind because I realized this compact gave water users on the Flathead Reservation a better deal than they could ever achieve through litigation. It gave irrigators on the Flathead Reservation, whether tribal or non-tribal, better protections against being “called” off to ensure instream flows for fisheries than they could ever obtain in a court battle. It established a better measurement and management system for this massive irrigation network. And it provided a funding framework to complete much-neglected maintenance on a ditch system that was literally leaking like a sieve.

Just as importantly, the compact prevented the tribes from asserting ancient fishing-based water rights secured by the Hellgate Treaty across half of Montana, which would have paralyzed the already-delayed statewide water adjudication. Without a compact, most water basins in the western half of Montana would be currently in the midst of re-opening the objection and claims process, even in the few places where the Montana Water Court has entered a final decree. This would be done to deal with the Salish and Kootenai’s treaty claims to instream flow water rights with a priority date of “time immemorial” and therefore senior to all other claims.

The compact is not perfect, as few negotiated agreements are, but it is much better than the decades of court battles that promised to take its place. For comparison, consider Montana’s litigation against the state of Wyoming over the Tongue River water rights. That case began under Attorney General Mike McGrath, and is still not complete. I was one of the lead attorneys when we finally took this case to trial for 12 weeks in late 2013. At my last count, Montana

had spent over $6 million over the life of that case, and has taken two trips to the U.S. Supreme Court to settle interstate legal issues.

The Salish-Kootenai water litigation would be orders of magnitude larger, more complex and more expensive than the Tongue litigation. In the Tongue, we dealt with one simple drainage, whose only complexity was a state boundary intersecting its middle. The hydrology, terrain, water-use systems, fisheries and history in a Salish-Kootenai lawsuit are in every way more complex. It presents unique issues of treaty interpretation, tribal history, congressional action, fish biology, hydrology, interaction with the Endangered Species Act, interests of downstream states, and interests of off-reservation users affected by on-reservation claimants. This would bog down the water court, state district court, and federal court, and would pass through the liberal 9th Circuit Court on its likely multiple trips to the Supreme Court.

Only the lawyers will win a case like that.

For those conservatives who oppose ratification of the compact, you owe the rest of us an answer to two essential questions: First, are you going to foot the bill for re-opening the statewide Water Court adjudication? Are you prepared to tell off-reservation water users across all of Western Montana that they need to pay their water lawyers twice and gamble that they can prove the Salish and Kootenai Tribes did not fish along a certain tributary in 1839?

Second, if you are a conservative and you believe in federalism, as I do, why should a congressman or senator sent to Washington reject a compact that was negotiated by a committee of citizens, passed by a Republican-majority Legislature and signed by a Democrat governor? I can’t think of any other situation where conservatives would say our congressman or senator should override the wisdom of our citizens, the will of the Legislature, and the authority of the governor. In the conservative, federalist world I grew up in, the voice of the state mattered in its own affairs.

The voices crying against this compact are only telling you part of the story. They have omitted the part where they want the entire state to take the risk for no reward. The Legislature did the right thing in 2015 by passing the compact, and Congress should respect the state’s decision by ratifying it.

Cory Swanson is the Broadwater county attorney.

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