Trickle-down effect 

Watchdog asks how Flathead water compact impacts others

Flathead Indian Reservation resident Margie Hendricks wears glasses and speaks softly. Her white hair lends to the 74-year-old's grandmotherly appearance. The self-described professor's wife, artist and mother of six may seem an unlikely public watchdog, but for the past eight years she's been just that. Hendricks has peppered Polson officials during meetings and in letters with questions about whether they can ensure a steady supply of municipal water in light of the Confederated Salish and Kootenai Tribes' still-unresolved water rights negotiations. So far, she's been unsatisfied with their answers.

"They're not really telling Polson citizens what is going to happen," she says.

For the past 10 years, the CSKT along with state and federal negotiators have worked to define how much water the tribes are entitled to based on 158-year-old treaty promises made by the U.S. government. In the 1855 Treaty of Hellgate, the tribes ceded some 23 million acres of land in exchange for the 1.3-million-acre Flathead Reservation. According to the treaty, the reservation was to serve the tribes' "exclusive use and benefit." In 1910, however, Congress opened the reservation to non-native settlers, who today outnumber tribal residents by more than 2 to 1.

In 2013, negotiators presented the Montana Legislature with an agreement that sought to finally end confusion over reservation water claims. The compact, as it's called, set minimum stream flow levels to protect the Flathead Reservation's prized fish hatcheries, spelled out how much water would be allocated to farmers and ranchers, and created a mechanism by which new uses would be permitted in the future.

During the legislative session, reservation irrigators spoke out against the compact, worrying that it would not provide sufficient water to their crops. Such testimony helped persuade legislators to shelve the compact.

Hendricks thinks it's strange that while a significant amount of attention has been directed toward how the compact could impact irrigation, there's been little to no public discussion about how it might affect other large-scale water users, including the communities of Polson, St. Ignatius and Ronan.

"No one is paying attention," she says. "The citizens of Polson are completely oblivious to any of this."

Frustrated by a lack of information, Hendricks set to work combing through state records, Polson City Council minutes and lawsuits filed by the CSKT against the state of Montana. She shared the documents with the Independent and pointed out one particular black-and-white map of Polson that shows where the city drilled four wells. Records show those four wells came online after 1996, when the Montana Supreme Court told state officials to stop authorizing new Flathead Reservation water permits until the CSKT could quantify their water rights.

click to enlarge The Pablo Reservoir on the Flathead Indian Reservation. - CHAD HARDER
  • Chad Harder
  • The Pablo Reservoir on the Flathead Indian Reservation.

Hendricks wonders if this means the tribes can shut those wells down. And, if so, why isn't anyone talking about it?

"Citizens just thought, 'Okay, they're building wells. They must have permits,'" she says. "They didn't have permits."

Polson city officials declined to comment for this story, but CSKT attorney John Carter says the short answer to Hendricks' question is "yes," the tribes could seek an injunction to shut down city wells that came online after the state Supreme Court's decision. But he explains they've opted not to while moving ahead with the compact.

"Particularly on the issue of the Polson wells, the Tribal Council made a very conscious decision to not push enforcement of the injunction against them, because it benefited the whole community," Carter says. "It was a very conscious choice by the tribal government not to enforce the victory they had won in court. So those wells are illegal, they're operating, and they'll probably keep operating."

Carter notes that the compact provides a mechanism for such "illegitimate" wells to become compliant. If the agreement were ratified, a five-member "unitary management board" composed of two members selected by Montana's governor, two chosen by the tribes and another picked by the other four board members would be authorized to grandfather in large wells that haven't been permitted.

If the compact is not ratified, the debate over how to allocate water on the reservation will likely land in court.

Chris Tweeten, who serves as chairman of Montana's Reserved Water Rights Compact Commission, is charged with helping to quantify the tribes' water rights. He notes that if water disputes are litigated, municipalities and other large-scale users, including those that began using water after the tribes did, could find their need for water trumped by tribal claims.

"They could call that junior user," Tweeten says. "It could be an industrial use, it could be a commercial use."

Tweeten explains that Montana law prioritizes water only on a first come, first served basis. It doesn't matter what beneficial use the water is serving, only that the claimant got there first. That means during a dry year, when reservation streams run low enough to jeopardize fish hatcheries, the tribes could successfully petition the court to ban municipal water users from drawing water.

In regards to Hendricks' concerns about public discussion of the compact, Tweeten says negotiators will redouble their education efforts in advance of the 2015 legislative session, when the body is poised to again debate the issue.

As for Hendricks, she's pleased that more information is being made available. There's little doubt, however, that she'll keep digging. "I think it's just my nature," she says.

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