This story is excerpted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday.
On the heels of recent public meetings and full-page newspaper ads encouraging resistance to the Confederated Salish and Kootenai Tribes-Montana Water Compact, Montana Free Press received a reader question asking whether the compact is a done deal or still winding through the various approvals required for it to become the law of the land.
There’s some truth to both assessments. The Flathead Reservation Water Management Board began sorting out water rights issues within reservation boundaries after U.S. Secretary of the Interior Deb Haaland ratified the settlement in September 2021 — an action that followed compact approval by the Montana Legislature, U.S. Congress, the Trump administration and the CSKT tribal council. But the compact, which packages federally reserved tribal water rights in about a dozen basins west of the Continental Divide into one massive agreement to reduce the expensive and time-intensive adjudication of individual water rights, also deals with off-reservation water rights.
U.S. Secretary of the Interior Deb Haaland formally executed the Confederated Salish and Kootenai Tribes water compact Friday, finalizing a long-running effort to negotiate an agreement that reconciles the tribes’ historic treaty rights with Montana’s modern water rights doctrine.
The Montana Water Court, one of the compact’s final hurdles, is still accepting comments on the compact through Feb. 9, 2023, and will likely order a hearing so that parties supporting or objecting to the compact can make their case before a judge. The water court’s authority is limited, though: Judge Stephen Brown can vote up or down on the settlement, but can’t really modify it. Judge Russell McElyea, one of Brown’s colleagues at the Montana Water Court, said that if prior tribal water compacts suggest a reliable forecast, Brown will issue a decision in two to three years.
If Brown votes the agreement down, the decades-in-the-making compact goes back to the drawing board and is effectively “void.” If Brown approves it, the water court will issue a preliminary decree codifying the water rights changes proposed in the compact. That would also mean that large federal projects included as part of the settlement — rehabilitation of the Flathead Indian Irrigation Project, for example — can move forward.
It’s worth noting that parties opposed to the compact could appeal an approval decision to the Montana Supreme Court, and from there, potentially, the U.S. Supreme Court. In other words, it could be a while before the compact’s fate is finally, decisively, irrevocably settled. In the meantime, Compact Implementation Program Manager Arne Wick with the Department of Natural Resources and Conservation said the department has been fielding “a lot” of calls about the compact.