To the editor: We farm 1,200 irrigated acres on the Flathead Indian Reservation in western Montana. The Lake family has been farming here since 1934. We raise potatoes, grains, hay and cattle.
We have never worried about the future of our farm until now. The compact that deals with the federally reserved water rights where we farm is in limbo. Our hope is it will pass the 2015 legislature.
The Reserved Water Rights Commission negotiated a compact with the Confederated Salish and Kootenai Tribes to protect water users in the West half of Montana. If there is no negotiated settlement the tribes will be required to file their claims with the water court before July l, 2015.
These claims include current and future uses of water on the reservation where we live and in stream flows in their aboriginal fishing territories which stretch across half of Montana. They are required like all other water users to file on all water they believe they have a right to.
The CSKT compact protects private property rights, private land values, reservation irrigators, protects irrigators on the Blackfoot and Upper Clark Fork from a state claim that will go to FWP if there is no compact and provides a new water source for western Montana.
In 1972 the new constitution required that all water in Montana be quantified and centrally documented to protect Montana’s water for Montanans. In 1979 the legislature created the Reserved Water Rights Commission to deal with all water claims with the federal government and the tribes.
They did this because it became apparent if the rights were not negotiated, decades of litigation would come and the state would not be able to quantify and protect the state’s water in a timely fashion. They have negotiated 18 compacts across the state.
Last summer in the Klamath Valley of Oregon, that state recognized a senior time immemorial instream right of the Klamath Tribe. Water was turned off at the end of June to farms and ranches in the upper Klamath Valley. They have been fighting over that water for almost 40 years. It has cost them millions of dollars. They could have negotiated but chose not to. Now, with their farms and ranches in peril and their land values suffering, they have come back to the negotiating table.
We visited with a farmer from the Klamath this winter. He said the negotiated deal on the table is pretty much the same deal they would have gotten earlier.
The compact dealing with our water has not yet been ratified by the Legislature. It came late to the 2013 Legislature and did not make it out of committee for the full legislature to consider. There is now a year left before the 2015 Legislature meets to educate and to help people understand what is in this compact.
In the compact the tribes do not make senior water claims that would harm water users. Irrigation water is protected. Over 3,000 wells that currently have no legal standing on the reservation will be able to complete their filings and receive a water right. (In 1996 the Supreme Court of Montana stopped all water claim filings on the reservation until the tribes rights were settled, folks continued to drill wells as did municipalities with no legal standing).
Instead of filing claims from the Idaho border to the middle of Montana, the tribes received very few off-reservation claims in western Montana and those were restricted. Some claims agreed to were co-ownership with Fish Wildlife and Parks with no change in priority date or management.
Some claims were time immemorial rights but were at water levels below existing water claims. The Kootenai River below Libby Dam is an example of this. As long as the dam is in place (and no one foresees it going away) the tribe has no ability to exercise their right.
A benefit, one that would not occur otherwise, is the protection of irrigators on the Blackfoot and Clark Fork, that without the compact would go to Fish Wildlife and Parks. The current right is for 2,000 cubic feet per second. With no settlement the Fish Wildlife and Parks will apply for the right at its current 2,000 cubic feet per second all year long.
In the compact agreement the right is pushed down to 1,200 cfs with 700 cfs going up the Blackfoot and 500 going up the Clark Fork. There is also a 10-year deferment so impacted irrigators can do a drought management plan.
Another significant benefit for the state, both now and in the future, is a water right to the tribe for 90,000 cubic feet of water out of Hungry Horse Dam (owned by the Bureau of Reclamation and is coveted by other states).
This water provides an economic benefit to the tribe and water users who need to find for future development. This water can only be leased in the State of Montana. The state will have 11,000 cubic feet of that water immediately for use by state water users. The state has tried for years to get this right but have not accomplished it.
We need the certainty that next year we will have water for our crops. We know what happened to farmers and ranchers in the Klamath could happen to us. The compact protects the value of our private property, it does not diminish our water rights; it provides certainty for our future.
If we go to court, the only guarantees are: (1) litigation will go on for a long time; (2) it will be expensive; and (3) at the end of the day we will not have the protections provided in the CSKT Compact.
It is in the hands of our legislature and we hope for passage in the 2015 session.