CSKT Water Compact throws thousands of Montanans “under the bus”

By: Senator Debby Barrett
 
As a rancher with deep roots on a family place in southwest Montana, I know something about the importance of history—and water rights.  I also understand negotiation and compromise.  That’s why I have served on the state’s Reserved Water Rights Compact Commission since 2011 and voted for some compacts. However, during my time on the reserved water rights commission, I’ve voted “no” to provisions within this compact on seven occasions.  Here is why I will not support the proposed CSKT Compact. 
 
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. 
 
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.
 
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 (MEPA).  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. 
 
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.   
 
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. 
 
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. 
 
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.  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.
 
Senator Debby Barrett, R-Dillon, is an eight-term lawmaker representing Senate District 36 in the Montana Legislature.  She serves as Senate President for the 64th legislative session.