After 157 years, Montana tribes want their water 

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Pierre is on the CSKT water-negotiating committee. He's taking a hard-nosed approach. "Somebody said a while back, every time you negotiate with the state or the government, you lose," he says. "We're going to prove they're wrong."

The weighty treaty

In 1855, the Salish, Kootenai and Pend d 'Oreille tribes met Isaac Stevens, the governor of Washington Territory, at Council Groves on the Clark Fork River, a few miles west of present-day Missoula. The tribes believed the meeting was to hash out tensions with neighboring Blackfeet.

That wasn't the case. The West needed a transcontinental railroad. Congress had ordered Stevens to clear the way for it. To do that, he needed the tribes' land.

Negotiations took place between interpreters, leaving room for many misunderstandings. Despite language barriers and some obvious confusion, Stevens persuaded the tribes to sign a treaty.

click to enlarge The shores of Flathead Lake, on the Flathead Reservation - PHOTO BY CHAD HARDER

The ten treaties Stevens negotiated with northwestern plateau tribes, including the CSKT, promise the right to off-reservation fishing "at all usual and accustomed places, in common with citizens of the Territory." The CSKT is the only tribal government in Montana with a Stevens treaty that guarantees aboriginal fishing rights.

The treaties carry weight in court. In 1980, U.S. District Judge William Orrick of Tacoma found, in the United States v. Washington, one in a series of suits filed by Washington state tribes, that treaty rights carry environmental protections. After all, Orrick concluded, aboriginal fishing rights are meaningless if there aren't any fish. Montana cites Orrick's opinion in its current off-reservation proposal to CSKT, when it says that treaty promises entitle tribes to more than just the "ability to dip a net into the water and have it come out empty."

There are two primary categories to the compact: on-reservation and off-reservation. The off-reservation component deals with establishing protected fisheries, which involves setting minimum stream flows in waterways so the CSKT can continue to fish in their traditional places. Aboriginal fishing rights for the CSKT could encompass much of western Montana.

The centerpiece of the state's off-reservation proposal includes an offer to the CSKT to co-own the Clark Fork water rights formerly associated with the Milltown Dam, which was removed in 2009. Montana received the Milltown water rights from the dam's former owners, Atlantic Richfield Company and NorthWestern Energy, as part of a natural resource damage settlement. The tribes have not yet responded to the state's proposal.

Water policy experts say such a move could make water in the Upper Clark Fork Basin more scarce for large-scale surface-water irrigators such as farmers. "We know this is potentially a significant change," says Gerald Mueller, who's worked as a staffer for both the Upper Clark Fork Basin Steering Committee and the Clark Fork River Basin Task Force, which advise state lawmakers on water use.

Water rights in Montana and across the West are secured on a first-come, first-served basis. When a dry August rolls around and there's not enough water for everyone to irrigate their crops, state water commissioners have the authority to tell those who came after, who are sometimes called "juniors," to stop watering.

Atlantic Richfield had a water claim for the Milltown dam dating back to 1904. But it never kept junior users from using the water. Now, though, based on the state's off-reservation water proposal, the tribes and the state, as co-owners of the Milltown right, could tell farmers to stop watering if the Upper Clark Fork ran low enough for long enough to threaten fisheries.

click to enlarge Farmers irrigating between Pablo and Ronan - PHOTO BY CHAD HARDER

The Milltown water right would be senior to many users along the Upper Clark Fork, which begins near Anaconda and flows northwest through the Deer Lodge Valley, pushing past Drummond and the former Milltown Dam. The Milltown right would also be senior to water users who began drawing from Upper Clark Fork tributaries, including Rock and Flint creeks, after 1904.

That's got some farmers concerned, says Jim Dinsmore, who grows hay upstream of Milltown, on 400 acres west of Hall, in the Flint Creek Valley. As it stands, it already can be tough for farmers to get the water they need. "In the last 10 years, we've had some really, really dry years," he says.

Dinsmore, who is 62, has been irrigating for 40 years in the Flint Creek Valley. He's president of the Granite Conservation District and a member of both the Upper Clark Fork River Basin Steering Committee and the Clark Fork River Basin Task Force. In the historically parched basin, irrigators compete for water. Dinsmore says junior water rights are called almost every year. "There is more water spoken for than exists."

According to the state's proposal, the Milltown right would be enforceable only against people who draw more than 100 gallons per minute from a stream or well for irrigation. Water users would be told to stop irrigating after four days within a five-day period of low river flows. The state acknowledges in its offer that irrigators upstream from Milltown could have less water and commits to devising ways to ease potential water shortages.

Dinsmore says he's got no problem with keeping streams and fisheries healthy. And he respects aboriginal fishing rights. His issue is that as negotiators hurry to draft an agreement, too little information is getting to the people most likely to be impacted.

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