The water compact bill passed its first legislative hurdle Friday morning and now heads to the full Senate for consideration next week.

The Senate Judiciary Committee voted 8-4 to send Senate Bill 262 to the full Senate, where it must pass by Friday to stay alive.

The result of more a decade of negotiations involving the state, the federal government and the Confederated Salish and Kootenai Tribes, the water compact would quantify the tribes’ water rights on and off the reservation. 

It is a negotiated settlement intended to head off the tribes’ stated intention to filed thousands of far-ranging water rights claims in state court.

Senators on the committee held a lengthy exchange prior to the vote, with bill sponsor Chas Vincent, R-Libby, expressing frustration with what he called misinformation and the failure of fellow committee members to read documents he had prepared to address many of their concerns.

“The misinformation from people who know better that has been disseminated on this issue is so incredible to me,” Vincent said. “It’s the reason we have so much uncertainty out there.”

According to Sen. Jennifer Fielder, R-Thompson Falls, “Interpreting the facts differently than someone else is not misinformation.” She questioned several aspects of the compact, particularly the underlying legal assumptions.

She referred to a statement from state District Judge C.B. McNeil that the state’s water adjudication court, not the Legislature, possessed the expertise to resolve the claims. Vincent responded that the point of the compact commission was to do just that.

“We as a body decided back in 1979 that we did not want to adjudicate, we did not want to litigate, we wanted to settle. ... That was the charge of the Legislature,” he said. He added that the compact would keep thousands of Montana citizens with existing water rights from having to go through adjudication again if the tribes take their claims to court.

One of the biggest points of contention in the compact is in-stream flow rights for the tribes beyond the bounds of their reservation. Legal precedent for those rights is murky at best, and they have never before been granted to any tribe in Montana’s water adjudication court. 

However, the language of the Hellgate Treaty that created the Flathead Indian Reservation and upon which much of the compact is based has more in common with similar treaties creating tribal reservations in Idaho and Washington.

Using the example of the Nez Perce Tribe in Idaho, Fielder said thousands of off-reservation rights were struck down in that state’s adjudication court, with the only exceptions having been explicitly granted in their treaty. The ruling was appealed by the tribe and ultimately settled out of court.

Vincent argued against this reasoning as well, responding that Idaho’s settlement gave the Nez Perce Tribe 200 off-reservation flow rights, along with “an entire fishery that Idaho had built and developed,” tens of millions of dollars and tens of thousands of acres of land.

Sen. Jebediah Hinkle, R-Bozeman, criticized the compact as a violation of equal rights, noting that the Hellgate Treaty does not give off-reservation water rights to the tribes.

“[The tribes] use a section of the Hellgate Treaty ... to seize off-reservation waters across the state,” Hinkle said, pointing to language giving the tribes fishing rights “in common with the citizens” of Montana. He contended that such language reserves state jurisdiction over those off-reservation waters.

Vincent objected on the basis of court precedent: “The Supreme Court has dismissed that [position] six times in six different ways.”

Should the compact fail to get approval this legislative session, the tribes plan to go ahead with their water claims, which they are required by law to file in the state’s water court by June 30.

Acknowledging the complex nature of the compact, Vincent urged committee members to vote for his measure, even if they have doubts, so dialogue on the bill could continue.

Saving his remarks for last, committee chairman Sen. Scott Sales, R-Bozeman, disagreed.

“This legislation is without a doubt the most important piece of legislation I have ever voted on,” said Sales, who has spent 10 years as a state lawmaker. “I can’t support [this], and I know that Sen. Vincent would rebut me right now, and he would say that the courts have ruled on much of this. But the courts aren’t infallible. And the courts have made horrible decisions in the past.”

He cited several past decisions such as a judge striking down Montana’s constitutional ban on gay marriage last November and the 1857 Dredd Scott ruling, which held that blacks could not be American citizens.

The full Senate will take up the bill for a second reading and floor debate sometime next week.

Voting in favor of the compact were Vincent, Cliff Larson, D-Missoula; Robyn Driscoll, D-Billings; Mary McNally, D-Billings; Mary Sheehy Moe, D-Great Falls; Doug Kary, R-Billings; Nels Swandal, R-Wilsall; and Diane Sands, D-Missoula.

Voting against were Fielder, Hinkle, Sales and Kirstin Hansen, R-Havre.

Reporter Samuel Wilson can be reached at 758-4407 or by email at swilson@dailyinterlake.com