HELENA – A bill that would ratify the water rights compact for the Confederated Salish and Kootenai Tribes was introduced last week, and a special educational session Saturday by the bill’s sponsor aimed to make the case for the controversial agreement and answer legislators’ concerns.

State Sen. Chas Vincent, R-Libby, led the three-hour meeting, describing his own journey from initially opposing the compact to sponsoring it in the form of Senate Bill 262, which will receive its first hearing in the Senate Judiciary Committee Feb. 16.

“The main purpose of this is to educate and spur educated discussion,” said Vincent, who opposed the compact version that failed in the previous session. “It’s a steep learning curve, and I know what it’s like to be on that curve. I wasn’t asking for their votes, I was just asking for their time.

The compact is a negotiated settlement between the state, tribes and federal government that aims to quantify the water use rights by the tribe and avoid litigation over the nebulous legal conflicts between water laws, federal treaties, constitutional rights and related legal precedents all the way up to the U.S. Supreme Court. With a $55 million price tag for the state, it is the last tribal water compact still awaiting approval since the state’s reserved water rights compact commission was established 36 years ago.

Several people watched from seats in the gallery above the hearing room, with one man holding a sign that simply said, “Don’t.”

After a presentation outlining the compact and the legal reasoning behind it, the floor opened up to questions from the 30 to 40 legislators in the hearing room.

State Sen. Bob Keenan, R-Bigfork asked whether the bill would be open to amendments as it moves through the Legislature. Deputy Attorney General Cory Swanson answered that any amendments would effectively kill the bill since the compact is a negotiated settlement between three parties and they all would have to ratify the same compact for it to take effect.

“I don’t think anybody is interested in going back to the negotiating table right now,” Swanson said.

Keenan said afterward he felt his questions were answered, but he remained deeply skeptical about the legal implications of the bill.

“The law is very clear in Montana statute regarding changes in appropriation rights for water law: It has to be evaluated,” he said. “I did not get an adequate answer [on that issue] and still have concerns where there are exemptions in the compact.”

Keenan said the compact leaves open the possibility of the tribes developing major projects without impact analyses such as environmental reviews.

State attorney Melissa Hornbein disagreed with that notion, saying the tribes would “certainly” be subject for a federal environmental review and likely a state review as well. Regarding whether the compact would circumvent state law regarding changes in water use, she said the compact would generally only establish water rights, not change them.

Swanson and Hornbein corrected a couple of legislators on minor errors, such as prior appropriation, which establishes seniority for water users for beneficial use as opposed to consumptive use. Beneficial uses include hydroelectric dams and in-stream fishing rights, which don’t remove water from its source.

The tribes would receive in-stream fishing rights both on and off the reservation to protect habitat for bull trout, a traditional source of fish for the tribes. The 1855 Hellgate Treaty guaranteed them exclusive rights to fishing on the reservation, as well as shared fishing rights off the reservation. Hornbein said this was clear from several rulings by the Supreme Court, although she noted the court had yet to rule on an off-reservation in-stream flow right.

Responding to criticism that unlike in other tribal water compacts, the Confederated Salish and Kootenai Tribes would receive  off-reservation water use rights, Hornbein pointed out that no other tribe in the state had signed a Stevens Treaty that contains the language opening the door to statewide water claims by the tribes.

Swanson said he had adamantly opposed the compact at first and admitted being glad the original compact failed. But he said he felt the current version contained protections for irrigators they would not otherwise get.

For one, he said the tribes were waiving all of their filed and future claims under the compact. Responding to an assertion by Sen. Jennifer Fielder, R-Dayton, that the unitary management board would be a vehicle for the tribes’ agenda, Swanson noted the board would be composed of two tribal appointees, two members appointed by the state and the fifth agreed upon by the other four members. The board would be responsible for administering and making any needed changes to the allocation of water rights for the

Swanson added the compact would not, as had been asserted, open the door to further litigation by any other tribes in Montana. Each of those tribes’ compacts bound them to relinquishing all rights to other claims. Existing adjudication claims by nontribal residents on the reservation could still be pursued.

State Rep. Mike Cuffe, R-Eureka, who said he is still undecided about the compact, complimented Vincent on the effort he had put into the agreement but questioned its unusual start in the Senate, since bills requiring an appropriation of state money usually begin in the House. Swanson responded it was the result of Vincent’s passion and knowledge on the issue.

The controversial water agreement is likely to remain an intensely debated issue as the 90-day legislative session progresses, with at least a half dozen other compact-related bills either introduced or in the drafting process. One draft delivered Friday to Sen. Fielder would require a two-thirds vote in both legislative chambers to pass such a bill.

The tribes are required to file their claims in a water adjudication court by June 30, meaning that failure of the compact will result in the tribes seeking far-ranging rights to water use based on their historic fishing throughout a broad swath of land reaching about halfway across the state.

Whether those claims will hold up in a water adjudication court is one of the primary disputes in the debate, but tribal attorney Rhonda Swaney said the tribes would aggressively pursue them. She said she has received considerable push-back from those in her tribe who feel they would fare much better without the compact. Failing the compact, she said, the gloves will come off.

“We’ve been compromising, but there isn’t a compromise in water court,” she said. “It’s a different field of play.”

Hornbein explained the water court will treat those claims as “prima facie” evidence, meaning they are assumed to be true unless an objector, such as a nontribal irrigator who uses the same water, can prove otherwise. Swanson said the courts have traditionally sided with tribes when dealing with treaties into which they were essentially forced by the federal government.

Swanson also advised the audience to consider that the state would only go to court on behalf of its interests, which are not necessarily the same as the interests of irrigators or anyone else disputing the tribes’ water rights. For the most part, he said those objections and the cost of proving them in court would fall on individuals.

Saturday’s meeting was public but only allowed questions from legislators.