The March 29 op-ed by Bob Storer titled “Ten reasons to ask for a NO vote,” again, like the widely expressed views of many who oppose the compact, provided misinformation related to the Salish and Kootenai water compact. 

Mr. Storer alleged that the compact would violate the U.S. and Montana constitutions. However, he fails to recognize that there is extensive legal precendent that supports the constitutionality of the compact. In fact, in 1985 the Montana Supreme Court addressed this very issue related to the Salish and Kootenai compact in State ex rel Greely v. CSKT, 219 Mont. 76, 83.

In addition to ignoring the extensive case law supporting the compact, Mr. Storer ignores many critical reasons to support the compact.

Compact Creates Economic Certainty: The Salish and Kootenai compact is good for the economy on and off the reservation because it provides certainty, keeps water right holders from having to defend their rights in Water Court and frees up 11,000 acre feet of water for off-reservation use.        

Compact Saves Montana Taxpayers Money: With passage of the compact, the Legislature will commit to fund $8 million in this biennium. It may have to fund another $47 million in the future. Without the compact, Montana taxpayers would pay at least $73 million for increased Water Court funding, in addition to millions more in costs that individual water-right owners will pay to litigate their claims. It will take decades for the Water Court to finish adjudicating the 10,000 or more new claims of the tribes.

The Compact Promotes Fairness: The compact ensures that Montanans have access to the water resources they need. It is fair to both tribal and non-tribal water users, to irrigators and non-irrigators, and to all water users on and off the reservation. If the Salish and Kootenai compact were modeled more after the Stevens Treaties tribes’ actions used in other Western states, the Flathead tribes could have negotiated for larger off-stream water rights and requested more immediate and larger instream flows on the reservation. Instead, the tribes sought a compact that fairly met their needs.

The Compact Would Provide Certainty: Certainty of water rights is important when farmers and ranchers pursue appraisals to secure operating or other loans, or when they attempt to sell their property.

Compact Limits Federal Involvement: If there is no compact, then the federal government will be involved in Montana water issues for two reasons: first, without a Compact, the United State Fish and Wildlife Service will have to engage in endangered species protection for bull trout. Second, the United States will, due to their trust duties, assist the tribes in each and every one of their 10,000 claims for water rights. Therefore, a compact guarantees less federal government involvement in Montana water-rights claims.

In addition to failing to inform people about the positive points of the water compact, Mr. Storer wrongly alleges that the compact would take state-based water rights from irrigators and transfers those rights to the tribes. Instead, the compact quantifies the tribes’ water rights implied by the treaty in accordance with Winters v. United States, 207 U.S. 564 (1908). Further, the Montana Supreme Court found: “Reserved water rights are established by reference to the purposes of the reservation rather than to actual, present use of the water.”  (Greely, 219 Mont. at 90). Mr. Storer may not like this legal principle, but the fact that he dislikes it doesn’t change its status as the law.

As a prerequisite to statehood, Montana’s constitutional convention of 1889 was required to disclaim all right and title to all lands owned or held by any Indian or Indian tribes (Greely, 219 Mont. 76; enabling Act, § 4, Second; 25 Stat. 676, year 1889). The state of Montana adopted Ordinance No. I, Second (1889) and disclaimed any right or title to Indian lands. Montana’s 1972 constitutional convention incorporated the federal Enabling Act requirements into the new Constitution (Id. at 85, 712 P.2d at 759). 

The opponents to the water compact are simply wrong about their statements related to the compact taking private property based on this history and the fact that the U.S. Supreme Court has found that Indian tribes have reserved water rights associated with their reservations.

In another inaccurate argument often utilized by opponents to the compact, opponents argue that the agreement fails to quantify the water rights of the tribes. In actuality, the compact provides the gold-standard for quantification of water rights. The compact provides as an exhibit a “Preliminary Decree,” which is what the Montana Water Court uses to quantify water rights in all cases. There is no better way to quantify water rights.

The Salish and Kootenai compact is fair, it is good for Montana’s economy, it protects irrigators on the reservation and it protect water rights users off the reservation. Support for the compact is common sense. The alternative is a huge boon to attorneys and water experts at the cost of Montana taxpayers, agriculture, and the economy.

Hertha L. Lund is an attorney working with the Commonsense Citizens for the CSKT Compact, farmers and rancher who irrigate on the Flathead Reservation.