Montana Water Court deadlines may complicate compact journey
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LAKE COUNTY – As the Water Rights Compact for the Confederated Salish and Kootenai Tribes makes its way through the federal branch of government in the United States Congress, several deadlines could complicate the journey.
Gov. Steve Bullock signed the bill at the state level in April 2015 containing the water rights settlement compact set to quantify the water rights on and off the Flathead Indian Reservation along with a management system.
The State of Montana also has another water project in the works. Montana Water Court needs to finish issuing preliminary water rights decrees by 2020. During a Water Policy Interim meeting on Jan. 11 in Helena, CSKT attorney John Carter explained that the two projects have the potential to create conflict.
“Basically, the water court is caught between a rock and a hard place,” he said of the courts need to pass the decrees and wait for the federal government to settle the water compacts within the state.
Carter said that if the court issues the decrees before the compact is approved, it could “torpedo” the chances of the compact making it through congress. He added that the tribe could lose support for the compact from within the tribe and from non-Indian people if the decrees are set before the compact is finished.
He added that Water Court declined the Blackfeet Tribe’s request for an extension on a stay to halt water claims concerning their compact. He said that he didn’t have a solution to the problem but that an extension on the Flathead Reservation stay might help with the looming deadline.
Chief Water Judge Russell McElyea put the current stay in place that suspends all water rights claims on the Flathead Reservation to help solve the problem. He said that the United States government and CSKT asked for the stay.
“I granted the stay until Jan. 1, 2017,” he said during a phone interview. “They can ask for additional stays if they need it.”
Carter is concerned that the stay might not be long enough considering that it took years for other water compacts to make it through congress. The Montana Legislature approved of the compact between the U.S government and the Crow Tribe in 1999, and it was ratified in congress 11 years later in November 2010. The Blackfeet Tribe Compact continues to work its way through congress after being introduced in 2010.
CSKT has a clause in their compact that could alter the progress of the compact if the process takes too long. It states that the tribes reserve the right to withdraw if “congress has not ratified this Compact … within four years …”
Water rights are issued for use on water from each of the 85 water basins across the state, Chief Water Judge McElyea explained. Two basins are currently being examined with those decrees put on hold under the stay. Those basins as named within the document include the “Flathead River including the Flathead Lake,” and another area of the “Flathead River below the Flathead Lake.”
The Montana Department of Natural Resources and Conservation says that other states are demanding water in increasing amounts and Montana is unable to defend its water use until it has resolved water claims.
Montana Water Court was created in 1979 to expedite and facilitate the statewide adjudication of over 219,000 water rights with a claim before 1973. The DNRC sorts through claims made after 1973 and they assist the Water Court.
The Montana Legislature passed House Bill 22 in 2005 to speed up the process of sorting through water claims, which created the 2020 deadline for adjudication of all water rights in Montana.
