Federalization of western Montana's water is not "conservative"

Hiding under the labels of “conservative,” “Republican” and “federalism,” Broadwater County Attorney Corey Swanson attempts to justify his support for the CSKT Compact in a column in the Havre Daily March 2, 2018, and carried in the Helena Independent a few days later.

Swanson’s taunting of conservatives who oppose the compact as being opposed to federalism is misplaced.  The compact does not embrace federalism; it embraces federalization — or federal control of the waters of western Montana! Most conservatives, Republicans and thousands of Montanans reject that idea. For many, federalization of the state’s natural resources is unnecessary, antithetical to property rights, and repulsive to the Montana and U.S. Constitutions.

What Really Changed Your Mind?

Mr. Swanson is an “I was against it before I was for it” “conservative” Republican compact proponent, who was initially against the CSKT compact because he thought it was a “water grab.” He then went on to the Attorney General’s office and “saw the light” — the compact was good.

There are two reasons Mr. Swanson changed his mind on the compact. First, Swanson believes that irrigation water users on the Flathead Indian Reservation got a better deal in the Compact than they could through litigation. And second, Swanson believes the Compact prevented the CSKT from asserting “ancient fishing” water rights secured by the Hellgate Treaty across half of Montana.

Unfortunately, both these “reasons” for Mr. Swanson’s enlightenment are arguably incorrect. Contrary to Mr. Swanson’s view, the adjudication offers a fairer representation and better outcome for the irrigators than the Compact does. Privately owned lands comprise 90 percent of the lands served by the Flathead Irrigation project and without the compact, the legal playing field is level, and irrigators maintain their equal opportunity before the Water Court. With the compact, however, irrigators enter the water court unequally because their claims have already been usurped by the Compact’s transfer of the bare legal title of the water right to the federal government for the benefit of the Tribes alone, excluding the project users.

Mr. Swanson’s second rationale for changing his mind on the compact was that the Compact would prevent the CSKT from filing water claims in eastern Montana. Well, that is also incorrect because passage of the compact had no effect and the tribes filed their off-reservation claims anyway. These additional off-reservation eastern Montana claims extend from the continental divide nearly to Billings.

The CSKT Off-Reservation Water Rights: A Colossal State Mistake?

The state of Montana offered off-reservation water rights to the CSKT but did not do so for any other tribe. Why? And more to the point, do those off-reservation water rights even legally exist?

Mr. Swanson asserts that “the Treaty of Hellgate secured off-reservation water rights for the CSKT into eastern Montana.” That statement is historically, legally, and factually incorrect. The Treaty of Hellgate covers only the aboriginal territory of the CSKT in western Montana and does not include any land east of the continental divide. Article III of the treaty secures access to, not a water right for, aboriginal lands in western Montana. And the Winters Doctrine restricts federal reserved water rights to the reservation.

The truth is that through the CSKT compact, the state of Montana ceded its authority for the ownership, management and development of the state’s water resources in western Montana to the United States. The Attorney General’s office also improperly allowed both the U.S. and tribes to file claims in eastern Montana despite their public promise to not file eastern Montana claims if the compact was passed by the legislature.

Mr. Swanson concludes his opinion piece by posing two questions to “those conservatives who oppose the water compact”.

His first question asks if compact opponents “are going to foot the bill for re-opening the state-wide Water Court adjudication” or pay for all the individuals who must hire their own lawyers? Doesn’t Mr. Swanson know that the water court adjudication is still on-going, no re-opening is required, and that 90 percent of the cases are resolved without a lawyer? Or is Mr. Swanson suggesting that the state will not defend its citizens and will make them hire their own attorneys?

Hey, Let’s Not Look at It Again! The Pelosi Approach?

Mr. Swanson’s second question to compact opponents goes to the issue of federalism and suggests that because the CSKT Compact was passed in the state with a republican legislature, with republican members of congress, and signed by a democrat governor, that the CSKT compact is entitled to be submitted as a bill and passed as is by Congress with no changes. This obviously would bypass the required federal agency legal, constitutional, economic, environmental, administrative, and policy review of the compact.

The 2015 legislature was prevented from fixing the factual flaws in the compact by a coalition of republicans supported — perhaps even directed-- by the executive. Does Mr. Swanson really think that our congressional delegation should also just skip the required federal review and pass the CSKT Compact as is?

Labels and terms aside, let’s not take the “Pelosi Zip Line” over the CSKT Compact federal review!

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Catherine Vandemoer is a water resource consultant and Chair of the Montana Land and Water Alliance based in Polson. The MLWA focuses on the protection of property rights. She can be contacted through http://www.westernmtwaterrights.wordpress.com/.