HELENA, Mont. - Setting the stage for more litigation, the Montana Legislature is considering a series of bills aimed at upending past Montana Supreme Court rulings over Salish and Kootenai tribal water rights and imposing state-sanctioned restrictions on pending water compact talks.
One of the bills proposes to exempt Flathead Indian Reservation water users from provisions of the 1973 Montana Water Use Act by no longer requiring citizens or municipalities to apply for permits before water is appropriated.
Under Senate Bill 416, sponsored by Sen. Greg Barkus, R-Kalispell, private landowners, cities and towns would instead revert to altering existing claims and making new claims to reservation water wherever they want and then filing a notice of their actions with the Montana Department of Natural Resources and Conservation (DNRC).
Disputes over such claims would have to be resolved on a neighbor-by-neighbor basis or by suing in state district court, lead DNRC attorney Don MacIntyre confirmed.
"You basically go and do it, and it's up to someone else to stop it," explained another source close to the process who requested anonymity.
The last of three similar legal rulings issued by the Montana Supreme Court forbid the department from processing or authorizing any new ground or surface water use permits until federal water rights reserved for the Confederated Salish and Kootenai Tribes are quantified.
"These rules do not originate in rocket science," Justice Jim Nelson wrote in ruling, which the court rendered on a 5-2 vote. "Indians own their reserved water rights. Those rights are superior to state appropriative water rights. To date those reserved water rights have not been quantified as to amount or priority on the Flathead Indian Reservation. Therefore the state cannot grant to some third party a right to appropriate or use water that the state may not own."
The state and tribes for the past three years have been establishing a framework to conduct full-blown negotiations over reservation water through the Montana Reserved Water Compact Commission, which hasn't taken a formal position on S. 416. The Republican-controlled Senate on Feb. 26 voted 28-21 to pass the bill to the House.
The state and Salish and Kootenai tribes are also working on an interim agreement that would potentially create a joint tribal-state licensing program for some types of underground water use such as household wells and municipal services, but would likely not include any licensing for new uses of surface waters. All permitting across the reservation is currently on hold because of jurisdictional disagreements between the state and tribes.
MacIntyre, the DNRC attorney, claims his agency has no position on S. 416, but department fingerprints and support are apparent. Even MacIntyre acknowledges that DNRC floated a similar bill proposal to the governor's office before the 2003 Legislature convened. After Republican Gov. Judy Martz and her staff declined to authorize the measure, Helena attorney Jon Metropoulos, who represents the Flathead Reservation's largest group of irrigators, wrote up the draft that was introduced by Barkus.
Tribal officials, among others, are warning that the pending legislation equals a one-way ticket back to court.
"What it means is total anarchy and a constitutional challenge" if S. 416 is approved, tribal attorney John Carter said in an interview. "It appears that history is repeating itself" because the issues being debated in the Legislature are the same already addressed by the state's high court.
During floor debate, Barkus said S. 416 will allow the state to maintain its claim that it has control over at least some of the water within the reservation. Salish and Kootenai leaders have told the compact commission that the tribes have authority over all reservation water, both surface and underground.
"This bill is the first step" in challenging the tribal claims, Barkus told his Senate colleagues. "This bill in no way attempts to regulate the federal reserved water right."
But Sen. Jon Ellingson, D-Missoula, countered that S. 416 is a "very dangerous" proposal that will likely drive the negotiating parties away from the table and into the courtroom.
"Tempers are high," Ellingson said. "People are mad at each other. I expect we're going to see a lot more problems" if the bill is approved.
Sen. Ken Toole, D-Helena, also noted that a state fiscal note prepared for SB 416 assumes that the tribes will file suit. Sen. Glenn Roush, D-Cut Bank, added that the Montana attorney general's office estimates a court challenge could cost the state $3 million, not the $26,500 envisioned in the hastily prepared fiscal note.
During a Feb. 19 Senate Natural Resources Committee hearing, Metropoulos, the irrigator attorney, was the only supporter of S. 416.
"This is an elegant solution to the delicate position the state finds itself in," he told the panel.
The bill, however, was derided by tribal representatives as being an unconstitutional stunt that provides no security for existing water users. The measure was also opposed by Polson resident Ric Smith, a non-Indian businessman who said he was worried it would derail continuing compact talks.
"The permit system is not mandated by the Constitution," MacIntyre said under questioning by panel members. Inexplicably, committee Chairman Bill Tash, R-Dillon, who is also a member of the compact commission, allowed MacIntyre to testify as an "informational" witness instead of a proponent, even though MacIntyre said he thinks the bill should go forward.
"It's still an authorization process," tribal attorney Carter said of the proposed changes. "It doesn't matter if actual permits are issued or not."
In addition, Metropoulos is the author of S. 417, also sponsored by Barkus. The bill calls for representatives from an undefined "political subdivision" to have a seat at future compact talks and spells out other legal parameters for any interim agreements. During a preliminary vote on Feb. 26, the Senate rejected the measure by a 10-39 margin. But the legislation could surface again.
At a Feb. 19 hearing, S. 417 was opposed by the tribes, the compact commission, Polson Mayor Randy Ingram, and Smith on the grounds that it puts too many constraints on pending talks.
The "political subdivision" entity, which would presumably include members of the Flathead Joint Board of Control, which represents irrigators, and county, city and other local governments, only needs to claim "a right to the use of water that is the subject of ongoing compact negotiations."
Sen. Bea McCarthy, D-Anaconda, who also has a seat on the compact commission, later said she thinks the term is so broad it "almost opens it up to the PTA." Other concerns have been raised that the pending water bills could open new challenges to Montana compacts that are already signed.
"If it ain't broke, don't fix it," Chris Tweeten, compact commission chairman and chief civil counsel for the Montana Department of Justice, told the committee. He explained that the commission has successfully negotiated five other tribal compacts, as well as other reserved water agreements with the National Park Service, the Bureau of Land Management and the U.S. Fish and Wildlife Service. Other negotiations are pending.
"This process ain't broke," Tweeten continued. "In the contrary, this process has worked very well."
"We feel like our destiny is in good hands with these folks," Polson's mayor testified. "Don't tie their hands. Let them work with the tribes and work with us." The committee, however, ignored the opposition and passed the bill on an 8-4 vote.
Also in the mix is S. 194, which the state claims it needs for an interim water agreement on the Flathead Reservation to go forward. Providing that friendly amendments were inserted, it was reluctantly supported by the tribes at a Feb. 19 hearing, where Rep. John Brueggeman, R-Polson, Tweeten, Smith, Ingram, Sanders County Commissioner J. Gail Patton and the Montana Water Resources Association also testified as proponents.
But the bill, sponsored by Tash, was opposed by Metropoulos, who later drafted jurisdictional amendments that the tribes find distasteful. MacIntyre said that the DNRC, which earlier declared neutrality, supports the bill in its current form. The Senate on Feb. 26 passed the bill to the House by a 43-7 margin.
"We wanted SB 194 unamended, but there are a lot of people who have legitimate concerns about the interim plan," compact commission program manager Susan Cottingham said in an interview. "Our goal is to still get an interim plan."
Yet another legislative proposal that deals with reservation water issues, House Bill 683, is also on the table. The bill, sponsored by Brueggeman, would allow the reservation communities of Polson and Charlo to move ahead with municipal water improvements outside an interim state-tribal agreement or a final compact.
Like S. 416, Brueggeman's bill suspends the water permit system for the communities and would allow their well-development projects to proceed "without the prior approval" of DNRC. The House Agriculture Committee passed H.R. 683 on a 12-4 vote. It now heads to the House floor.