I have been active since 2004 with water rights claims in my then capacity as a member of the Government Affairs Committee for the real estate industry and my continuous study of the Confederated Salish and Kootenai Tribes water compact issues. 

But even though I have been studying this issue for years, it is so complex a topic that this is my first attempt to address it in print.

A starting point is to try to understand the complexities of who has jurisdiction over Montana’s ownership of its water resources: The federal government on federal lands inside Montana; the state of Montana, under its 1972 Constitution, for all water in the state; Indian tribes granted “sovereignty” and ownership of federal lands inside Montana by the Hellgate Treaty of 1855 with the USA in return for their unconditional surrender from war and resultant permanent ownership of these reservation lands with water rights “until time immemorial”; the Montana Water Court; and the U.S. Department of Natural Resources and Conservation that determines all technical water rights claims with a “first in time, first in line” rule incorporating “beneficial use and occupancy” under the strict auspices of the Montana Water Court.

With that over-simplification as a starting point, let’s fast forward to recent proceedings in Kalispell on Sept. 13 and 18, and Oct. 23 and in Polson on Oct. 15, when the latest water compact seminars were held for the better understanding of private citizens. 

The Sept. 13 meeting lasted six hours and was sponsored by representatives of the Flathead County Republican Party under the auspices of a non-profit organization called Freedom Action Rally. To my knowledge, I was the only non-Republican in attendance.

What started out as a seminar on non-Indian private property and water rights quickly deteriorated into a partisan political forum against perceived general federal over-reach into Montanans’ lives by Democrats like President Barack Obama, ex-Speaker of the House Nancy Pelosi, and Senate Majority Leader Harry Reid. 

It was a fear-based presentation by local politicians and businesspeople without benefit of legal counsel or hydrology scientists present.  I managed to struggle and sit through all six hours of it… realizing I was listening to people who were honestly afraid of an unknown outcome for their personal property water rights claims that are appurtenant to their ownership of land use. They truly had no understanding of the jurisdictional control of their water usage… and fear is the most powerful of motivators… however, I will give them credit for trying to protect all of our water-rights claims.

The Sept. 18 meeting was only two hours long and the conversation was directed by the state of Montana’s Department of Natural Resources: Melissa Hornbein, special assistant attorney general; and Ethan Mace, surface water hydrologist. Presentations were designed to educate the public as to the real legal ramifications and control of CSKT water rights “in perpetuity” in order to alleviate fears among the citizenry. The audience was made up of equal numbers of Republicans and Democrats… but only a few people who also attended the first seminar.

The Oct. 15 meeting was sponsored by the Confederated Salish and Kootenai Tribes, with the Montana Reserved Water Rights Compact Commission and lawyers for all participants in attendance, as well as hydrologists, and lasted almost five hours. Its focus was on River Diversion Allowances, Adaptive Management capabilities with Operational Improvements and Rehabilitation and Betterment plans, and Measurement of water flow techniques to be employed. Many prominent Republicans attended in the audience and spoke against having a water compact at all during their public testimony. They refuse to trust the CSKT. I didn’t recognize if any Democrats were present.

The OCT. 23 meeting was the most controversial and contentious. At first it was scheduled a day earlier, then canceled, then reinstated for a day later at the last moment. This meeting for public testimony only lasted 15 minutes and left many people visibly upset with the commissioners for two reasons: The limited amount of time to speak (one minute each); and the confused interpretation by the audience of a letter drafted by one commissioner, Gary Krueger, and endorsed by one other, Cal Scott, and rejected by the third, Pam Holmquist, to Gov. Steve Bullock asking for his consideration of the needs for Flathead County residents’ water rights claims being protected. 

Surprisingly, the Democrats in attendance agreed with Krueger, but the Republicans in attendance were split on giving their approval of the letter. The letter did not endorse the existing form of the water compact as currently written... only encouraged developing an acceptable compact, yet to be written. My reading of the letter was that it was well-written and did protect all of our water rights interests. I am just as protective of my own water rights as Republicans are of theirs.

It is difficult to adequately reduce my own knowledge base and the 13 hours of the seminar dialogue to the limited space allowed here. For example: Surface water flow for fisheries, stock, and agriculture is treated differently from ground water for individual, commercial, industrial, municipal, et al, wells in the compact… even though there is a hydrological connection underground… and the recharging of aquifers must still be considered and factored into hydrological modeling. But the CSKT compact agreement does not take away any of our groundwater use claims on file with DNRC. 

The MAJOR controversy has to do with “on reservation” and/or “off reservation” rights. From a property-rights perspective, without a compact it is not possible to adjudicate all of our water rights claims by the Water Court and DNRC, which renders our property values moot and makes selling our properties nearly impossible for anywhere near their actual value... if at all.

Let me say that if both sides of the dispute could possibly be brought together in good faith to discuss the many nuances of the issue, maybe a trust could be formed to alleviate peoples’ fears of losing their precious water rights. Both sides are well-meaning but do not currently trust each other enough to avoid litigation. The lawyers will get very rich on this complex issue. That is, if any of us individuals can afford the legal bills under the “Mutual Defense Clause” of the compact against the feds, state, or the tribes? I say “negotiate in good faith” instead. 

A starting point could be splitting the compact issue into two separate components: (1) Grandfather in all existing, DNRC-registered, off-reservation water rights claims for time immemorial. They would be appurtenant to the land and would transfer with the sale of the land. Everyone goes home happy; (2) Treat requests for new water rights claims as being subject to negotiation first, and resolution second, by CSKT, and DNRC, and the Water Court.  It would not impact those water rights holders in No. 1. They can stay home, happy.

Bill Baum is a resident of Martin City.