At the March 6 House Judiciary hearing on HB 427, which would establish a water-rights defense fund, the Salish and Kootenai tribes’ lead water lawyer John Carter confirmed what had recently been suspected, at least since the Compact Commission attorney alluded to the matter at the informational session held in February: 

Along with giving the tribes instream flow rights for fishing throughout Western Montana, the compact would provide the basis, without limitation, for the tribes and their members and others to have and exercise a permanent easement across private ground to access usual and accustomed fishing places “as if it is written in the deed.” This is unpermitted access in the western third of Montana.

Carter’s answer to a legislator’s query is brief and to the point: Where the right to fish is recognized, so is the right to unpermitted access.

There are a number of salient points to take from this. 

1. The compact, which nowhere explicitly mentions this matter of unpermitted access across private land, in fact lays the factual and legal foundation for such demands of a right to unpermitted access by the 4,000 to 5,000 members of the tribes all over Western Montana. But wait! There’s more! 

The compact also says, under “Persons Entitled to Use the Tribal Water Right,” (Page 26, line 29 to 30): “The Tribal Water Right may be used by the Tribes, their members, Allottees, or their lessees or assigns.” The number of people demanding unpermitted access across private land is nearly unlimited under this language. A robust fishing guide business could be built on this right, where “lessees or assigns” use this right to guide dudes onto and across private land without any permission.

2. The “usual and accustomed” places open to access are completely undefined in the compact, so they are unlimited by it. 

3. Pursuant to treaty language, the right includes the right to construct buildings for curing fish. 

4. Every area of Montana, therefore, where instream flow water rights for the purpose of fishing are given, or shared, with the tribes is subject to unfettered access, without permission, by thousands of people, perhaps tens of thousands. These areas are the Bitterroot River valley, the entire length of the Clark Fork River, the Blackfoot River, the Little Blackfoot River, the Kootenai River, the Flathead River and all three forks, Rock Creek, Flint Creek and many tributaries, lakes, wetlands, springs, and reservoirs. No area has been excluded or cut a separate deal from this right of access and building. 

Based on a quick review of the published materials promoting this compact, the proponents of the compact, including state agencies, have never once mentioned that in writing that this “deal” also opens the land owned by hundreds of thousands of Western Montanans to this right of access.  

It is shocking that the Farm Bureau, Montana Stockgrowers Association, and Montana Water Users Association would support such destruction of property owners’ rights. Perhaps they can be excused, temporarily, because they were ill-informed and poorly counseled. 

The lawyer for Common Sense Citizens for the CSKT Compact, Ms. Hertha Lund, in fact denied that the instream flow water rights for fishing in the compact provided this grounds for access, either out of ignorance or deceit. Mr. Carter had to correct her.

Whether from deceit or ignorance, the failure to candidly alert Montana to this consequence of the compact raises serious questions, such as:

1. Was this intended? If so, why were we not informed? If not, why was the issue not resolved in negotiation? 

2. As the proponents have had to admit, the legal decisions do not provide a basis for water rights, but a right to fish, which, if found to exist by a court, means this permanent easement for access. So why agree to give the Salish and Kootenai Tribes’ instream water rights for fishing? If one does that, why not as part of the bargain, limit access to the means allowed by Montana law? Why leave it open? 

3. For those legislators who have voted for and supported this compact, did you know of this consequence? If so, why did you not make it clear? If not, DO YOU STILL SUPPORT THIS COMPACT?

Many of us who know and respect you hope you were deceived and will now, publicly, withdraw your support for this bill. 

The standard the Water Court applies to invalidate a ratified compact when an objection is raised by a party to a compact is that it must find “fraud, overreaching, or collusion.” 

In light of the established fact that someone from the State of Montana Compact Commission offered up Western Montana to the Confederated Salish and Kootenai Tribes, rather than them demanding off-reservation rights, as admitted by a tribal attorney at the hearing on SB 262 in the Senate on February 16, perhaps some collusion, or worse, occurred here. 

But you, legislators, need not worry about litigation over that and neither do Montanans if you simply kill this very bad, confiscatory bill. 

Jon Metropoulos, a Helena attorney, has worked on issues surrounding water rights on the Flathead Reservation for more than 20 years.