Tribal suit asking for definition of irrigation water ownership dismissed
Megan Strickland
An irrigator works on his pipe. Last week a federal judge declined to decide ownership of water flowing through the Flathead Indian Irrigation Project.
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A federal district judge has dismissed a case filed by the Confederated Salish and Kootenai Tribes in 2014, saying that the recent passage of a water agreement by the state government likely makes issues raised in the court moot.
The Tribes filed suit in March 2014 against 14 defendants that included seven reservation residents, Secretary of the Interior Sally Jewel, and individual irrigation districts that utilize the Flathead Indian Irrigation Project. Tribal attorneys said the suit was narrowly tailored to declare ownership of the water flowing through the Flathead Indian Irrigation Project.
Per state law water ownership is usually decided by the Montana Water Court. When there is a federally reserved water right, including rights for native tribes, the federal and state governments have negotiated settlement packages, called water compacts. The Confederated Salish and Kootenai Water Compact passed the legislature in April, and said the irrigation project is a tribal water right with an 1855 priority date, but gave individual irrigators rights to a written delivery entitlement. Individual irrigators also still have the right to take up their claims in the Montana Water Court under the compact.
The Flathead Joint Board of Control, federal government, and tribal government have all filed claims for ownership of the water in the irrigation project. The Flathead Joint Board of Control is comprised of three irrigation districts that represent irrigators on the project, the majority of which are non-tribal members.
The compact must be ratified by the United States Congress and the tribal government for final passage.
“If the CSKT Compact proceeds through the tribal government and Congress, the document will ultimately land in the hands of the Montana Water Court for incorporation into a decree governing the basins and water bodies comprising the FIIP,” Judge Dana Christensen wrote in a May 19 opinion. “Under this circumstance, a declaration of the kind the Tribes request would serve no purpose — the CSKT Compact resolves tribal priority to the water at issue. Thus, if all goes as planned by the parties to the CSKT Compact, the Tribes’ declaratory claim would be a needless determination of, and entanglement with, what would be a state law issue.”
Christensen also laid out what could also happen if the compact does not pass.
“On the other hand, if Congress and the tribal government fail to ratify the document, the Tribes will participate as other water rights claim holders do in typical stream adjudications before the Montana Water Court,” Christensen said. “Under this circumstance, a declaration of the kind the Tribes request would result in duplicative litigation and would encourage forum shopping — the Tribes would likely make the same historical and legal arguments made before this Court if they were to appear before the Montana Water Court without a decree, and they seek a declaration now on the off chance the Montana Water Court gets the law wrong.”
There are other lawsuits pending that could impact water usage on the Flathead Reservation. A suit filed by the Flathead Joint Board of Control in 2014 seeks to take back local control of the Flathead Indian Irrigation Project. It was filed against the Bureau of Indian Affairs, which resumed control of the project in 2014 after a local control organization fell apart amid political infighting. Irrigation commissioners for the Flathead Joint Board of Control asked their attorneys to “turn up the heat” on the lawsuit in May.
The Flathead Joint Board of Control also filed suit in late April in state district court, asking for an injunction to prevent the governor from signing the water compact, saying it should have required a two-thirds vote of the entire legislature for approval. District Judge James A. Manley has not ruled in the case, but did file paperwork stating the request for an injunction was moot because the governor has already signed the document. State officials have requested that the case be moved to a Helena venue.
