To read the full text of Colleen’s article posted to the MT State Legislature site, CLICK HERE
Many people have questions about the Confederated Salish and Kootenai Tribes water compact and wonder whether it will affect water users in the Gallatin Valley, southwest Montana and other areas outside the Flathead Valley. People have also been wondering what will happen if the compact doesn’t pass in the Montana Legislature and the CSKT water rights are litigated in court.
At Ponderosa Advisors LLC, we believe that access to information facilitates better decision making, which benefits everyone. I formerly served as a senior water master with the Montana Water Court, where some of the potential litigation would begin, so I would like to bring information to help people evaluate their positions.
The Montana Legislature is currently considering whether to pass the compact in Senate Bill 262. If the compact does not pass, the law states that the Tribes will have to file claim forms for their water rights by June 30, 2015. Other water users in Montana filed claim forms back in 1982. Montana law states that tribal claims have to be treated like all other water rights.
In the compact, the Tribes reached a compromise with the state and the United States, agreeing to receive less water than they believe they could legally claim. So if the compact does not pass, the Tribes will file their claims for all the water they believe they may have a right to, beyond what they agreed to in the compact.
The catch is, Montana law states that claims are “prima facie” proof of their contents for adjudication. This means water users do not have to “prove up” their water rights like they did before the law was passed in 1979. Because of our prima facie laws, Montana water users will have the burden to prove that any claims the Tribes file are incorrect, not just by saying “I object” but by providing enough evidence to overcome the Tribes’ claims.
The prima facie law has been a benefit to Montana water users and has kept many valid senior rights from being lost, and it is important to understand how its application would work in litigation of tribal water rights. Our laws are different than some other states that have litigated tribal and reserved water rights, such as Wyoming and Idaho.
The Tribes have indicated that they will file claims for water rights both on the Flathead Indian Reservation and throughout their historical aboriginal territory, which they state could include most of Montana west of Billings. It would be up to individual water users, or groups of water users, to pursue objections in litigation and cover the costs.
This is not just a matter of defending non-tribal water rights, although that is also part of the litigation process, but attempting to prove each one of the Tribes’ claims wrong. No one knows how many claims the Tribes would file, but estimates have ranged conservatively in the thousands.
There are other legal issues that would arise if the compact does not pass, and appeals to state and federal courts are likely, including the potential for appeals to the U.S. Supreme Court. The Supreme Court has stated that “Any state court decision alleged to abridge Indian water rights protected by federal law can expect to receive, if brought for review before this Court, a particularized and exacting scrutiny commensurate with the powerful federal interest in safeguarding those rights from state encroachment.” (463 U.S. at 571, 103 S.Ct. at 3216) That is a high standard of review.
If the compact fails to pass, I could personally benefit, because the resulting years of litigation would mean a high volume of sales for Ponderosa’s interactive water rights mapping technology. As a water lawyer, my colleagues and I would have plenty of work for the rest of our careers, but I am not certain that most Montanans would find this to be the best use of their money.
The water rights adjudication process in Montana has currently been proceeding for more than 30 years and has cost nearly $90 million in state funding so far, not counting expenses by litigants. Most people who comment on the adjudication would like to see it completed soon, and it was predicted to be completed as soon as 2028, according to recent estimates.
If the compact does not pass, that will certainly not happen, and Montana water rights will remain unresolved in litigation for longer than anyone could have possibly predicted.