Salish-Kootenai would stop water permits

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HELENA, Mont. - The Confederated Salish and Kootenai Tribes asked a state judge to prohibit the Montana Department of Natural Resources and Conservation from issuing new water-use permits or approving changes for existing uses on the 1.2 million-acre Flathead Reservation.

The request comes in a lawsuit filed last month in Helena's Lewis and Clark District Court. Judge Jeffrey Sherlock has issued a temporary restraining order against the state and is considering whether to approve a preliminary injunction as well. There was a May 16 hearing on the injunction request.

The lawsuit, filed by tribal attorneys John Carter and Dan Decker and contract attorney Jim Goetz of Bozeman, alleges the state is ignoring two previous Montana Supreme Court rulings. The latest legal action came after Natural Resources scheduled a contested case hearing last month over a variety of longstanding disputes rising over a handful of permits. So far, with Sherlock's consent, the tribes have held the hearing in abeyance.

Water-use permits primarily go to reservation irrigators, most of whom are non-Indian, for use within the federal Flathead Irrigation Project. It largely uses water emanating from tribal lands to provide water for about 127,000 acres of privately owned farms and ranches.

The tribes argue it is illegal for the state to issue new permits or alter existing permits, in part because tribal aboriginal and federally reserved water rights have not been quantified. Thus the state cannot know for sure whether the use permits adversely affect tribal water rights. They add that "piecemeal" adjudication before larger issues of tribal water rights are settled violates the federal McCarran Amendment, a major issue in a related U.S. District Court lawsuit filed by the tribes in 1992. That active lawsuit against the state, has traveled up to the Ninth U.S. Circuit Court of Appeals.

While state attorneys agree the Montana Supreme Court prohibited issuance of new use permits, they contend the agency may still accept and review new applications, and allow permit holders to make minor changes to permits.

"A change in use is not the granting of a new water right," Resources lead counsel Don MacIntyre argues in a brief that disputes the tribal contentions.

Records show related matters have been argued before the state's high court twice and the tribes scored overwhelming victories each time.

The tribes contend the state is blatantly violating both rulings and needs to be reined in. Observers say Resource apparently is pushing the issue to eventually appeal jurisdictional questions to the U.S. Supreme Court.

The first Montana Supreme Court decision on the water permits was issued in 1996 after District Judge Dorothy McCarter ruled the state could approve irrigator permits without knowing how much water would be allocated to tribes. In overturning McCarter, the high court specifically prohibited further Natural Resource permit or use-change approval within the reservation.

Records show the agency went for a political fix, however, and persuaded Sen. Lorents Grosfield, R-Big Timber, to carry a bill during the 1997 Legislature to negate it. Following signature by former Gov. Marc Racicot, the agency made plans to start issuing permits, which prompted new legal action from the tribes.

In 1999, the Montana Supreme Court ruled Grosfield's amendments to the state's Water Use Act didn't change its opinion that the department can't issue permits if the action could potentially infringe on senior Salish and Kootenai water rights.

"The law hasn't changed," the tribes counter in their new injunction application. "DNRC is trying to do something the court has repeatedly told them they cannot do."

In oral arguments May 16, MacIntyre said he still believes the 1996 ruling was neutered by the legislative action. Standing alone, the 1999 ruling doesn't prohibit the state from approving changes of use, he contends. MacIntyre submits the water at issue, when discussing existing use, is "legally available" because the use is already allocated.

The Flathead Joint Board of Control, a state-chartered group that administers the reservation's three irrigation districts, wants to intervene in the case. It has a long history of challenging tribes on nearly every jurisdictional front, from fish and game management and in-stream flows, to wresting control of the irrigation project from the federal government. The tribes are adamantly against the board entering the lawsuit. Sherlock has yet to rule on the group's request.

Tribal attorneys say Natural Resources' unwillingness to abide by the past court rulings could negatively impact pending negotiations with the Montana Reserved Water Compact Commission, charged with trying to settle complex water rights issues across the state without litigation.

While formal talks with the tribes and Interior officials have not started, Carter told Sherlock at mid-month that a framework for discussions has been drawn up and will soon be submitted.

Court documents filed by the department show that former Gov. Racicot made several attempts to set up an interim water management agreement on the reservation, but tribal leaders refused because of jurisdictional issues. Racicot wanted the plan in effect while compact negotiations were under way.

"The tribes' reserved water rights on the Flathead Reservation are extensive and pervasive throughout the reservation, to the extent that all water within the reservation, both ground and surface, are reserved for the tribes," Tribal Chairman Fred Matt wrote in one reply to Racicot last year. "An interim agreement which allows permits to be issued by the state in any fashion on the reservation is not consistent nor compatible with the tribes' reserved water rights."