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Water compacts a triumph of negotiation over litigation


 

After gaining approval by the 63rd Montana Legislature, a water compact between the State of Montana and the Confederated Salish and Kootenai (CSKT) tribes is in line to become the 18th and final agreement negotiated by the Montana Reserved Water Rights Compact Commission, and the seventh to involve Indian water rights.

The CSKT compact was signed into law by Governor Steve Bullock on April 24, 2015, and now awaits approval by the U.S. Congress, which has four years to act on the agreement. If ratified, the process returns to Montana, where the CSKT Tribes must approve it.

Quantifying tribal reserved water rights is among the most complex, time-consuming, costly, and politically-charged undertakings faced by western states. If the CSKT compact clears these remaining hurdles, the state will have ratified compacts with all Montana Indian tribes in about 37 years.

It’s an enormous achievement.   

When Montana launched its statewide adjudication of water rights in the early 1970s, legal guidelines were not well-developed for the adjudication of tribal reserved water rights, a product of the federal government. Tribal leaders questioned whether the state had jurisdiction over their water claims. Non-Indian water users worried that federal involvement could leave them out of the process, and potentially without water rights they had used for over a century.

The Montana Legislature in 1979 offered Senate Bill 76 as a first attempt to improve and expedite the adjudication process by amending the Water Use Act of 1973. The bill in its original form proposed a system of state water courts to adjudicate all water right claims, including those of the tribes. The approach had no support. Montana tribal leaders, inter-tribal organizations and Indian rights groups all testified against it, as did the state’s agricultural interests.

At some point during discussions of the bill, negotiation was suggested as an alternative to adjudication. While there is no clear record of how the amendments were developed, the final version of SB 76 included guidelines for a negotiating process and creation of a Compact Commission. The bill also called for state adjudication of water right claims to be postponed in basins where tribal water claims were under negotiation.

 Susan Cottingham went to work for the Compact Commission in 1986 as a historical researcher, then in 1991 was named program manager. She remained in that role through 2010 and was involved in every compact negotiated by the state. In the beginning, she says, the RWRCC was very much a work in progress.

“Negotiating compacts was a totally new issue. Indian tribes were just starting to get involved with protecting their water rights and there weren’t a lot of legal precedents.” As for the commission itself, she says, “There wasn’t a staff and there wasn’t a budget. And we had no idea then how legally delicate and complicated these settlements were going to be.”

While some western states have negotiated water settlements with Indian tribes, Montana is the only state that created a standing, formal organization. Cottingham says the unique makeup of the commission became one of its greatest strengths.

“The participation of legislators was vital to the successes we had,” she says. “The commission was bipartisan by design. Legislators were part of the negotiating teams and they could see the process all the way through. They kept their parties informed. Up until CSKT it was fairly easy to get compacts approved by the Legislature because of that involvement.”

Representative Dan Salomon, R-Ronan, was appointed to the RWRCC in 2011 and served through passage of the CSKT compact. “Serving on the RWRCC was a tremendous experience,” he says. “Learning how to bring so many diverse interests together in a negotiated settlement while maneuvering through federal, state and tribal water laws was difficult and frustrating but well worth it.

“The number one goal of the RWRCC was the protection of existing water rights for individual claim holders,” Salomon says. “I could see early on that negotiation was the way to make that happen.”

On the whole, Western states and Indian tribes that have gone to court over reserved water rights have spent far more time and money, and have come away with settlements that leave critical water-management issues unresolved. In Wyoming, the state began its adjudication of the Wind River – Big Horn Basin on January 26, 1981; included in the basin were water rights held by the Eastern Shoshone and Northern Arapahoe tribes on Wyoming’s Wind River Indian Reservation. The case ultimately took 37 years to settle and included hearings before the Wyoming Supreme Court and U.S. Supreme Court. While a comprehensive cost total for the case does not exist, estimates of the costs to the state and federal governments, the tribes, and others involved have run as high as $60 million. And there were other, non-monetary costs. Jeff Fassett, the Wyoming State Engineer from 1987 to 2000, had the following thoughts after the case was settled:

Wyoming has been used as a poster child for how not to quantify reserved water rights – through pure, hard-fought litigation. We got off on the wrong foot and found it almost impossible to stop the litigation chain. There were positive aspects … But clearly the hard-fought litigation left ill will among the parties. It damaged relationships. And it damaged the neighborhood.

 In his book, Beyond Litigation: Case Studies in Water Rights Disputes, author Tom Bellamore writes:

  The Wind River Tribes had anticipated a result that would quantify their rights, secure their economic future, and respect tribal sovereignty. Instead, the judicial system delivered a hollow victory – paper rights to a substantial quantity of water that would be almost impossible to perfect … Had these consequences been foreseeable, the Wind River Tribes undoubtedly would have elected an alternative path.

“Paper rights” and “wet water” are terms often used when describing tribal compact agreements. A tribe may have its water rights validated through litigation – the “paper rights” – but that by itself doesn’t enable a tribe to put its water to use (“wet water”). When they sat down at the negotiating table, most Montana Indian reservations did not have the financial resources to modernize deteriorated or under-developed irrigation and water-management infrastructure. Monetary awards to upgrade and expand that infrastructure have been part of the settlements in all of Montana’s compacts, with both the state and federal government contributing funds. In return, Montana tribes agreed to subordinate their water claims on specific streams or basins, protecting existing water users. For Rep. Salomon, this is the kind of outcome only negotiation can make possible.     

“Negotiation allows all factors to be considered and a plan made that addresses all issues at once,” Salomon says. “Taking all current claims and laws, then looking to the future with a lot of common sense by the parties involved. No party got everything they wanted, but they got an agreement that protected their interests into the future.”

Equally important to the RWRCC’s success was the formal recognition of Montana Indian tribes as sovereign nations. From the start, the Commission was set up to conduct negotiations among three separate entities: the State of Montana, the tribe or tribes involved in a specific compact, and the United States government.

“That was extremely important to the tribes. They were not going to accept being considered just another public interest group,” Cottingham says. “The commission gave them the stature they required to come to the table.”

The final element for success, according to Cottingham, was public involvement. “We had to have open meetings and take public comment. In some ways it was harder, but ultimately it worked better. You got a lot of the angst right out in the open at the start.”

Through most all the compacts, angst was never in short supply. Serving as a representative of the state required a thick skin.

“Each compact had its own dynamic, but a few underlying elements were always there,” she says. “The tribes had to overcome a century of mistrust of white society. The off-reservation irrigators didn’t trust you because you’re the government. We went through a lot of extremely difficult meetings.”

Dorothy Bradley, a commission member since 2007, believes the completion of the compact process is a unique success story for a state that’s not afraid to blaze its own trail.

“I like to think this is a classic Montana story – having the grit, wisdom, and inventiveness to compose, negotiate, and accept these compacts,” says Bradley. “It was sometimes like an exhausting relay – some of the runners had to drop off but others grabbed the torch and kept it moving. It is impossible to imagine how things would have been without the legislation and the compacts, but we do now see closure, neighbors being neighbors again, and a sense of gratification.”