Reprinted in it’s entirety from Billing Gazette
By HERTHA L. LUND
Dec 7, 2019
Guest opinion: CSKT Compact protects Montanans’ water rights
My husband and I ranch near Lennep on land that has been owned by his family since 1877 when his great grandfather immigrated from Norway. Even though we have very early priority water rights, if the CSKT Compact does not pass in Congress soon, we and many other farmers and ranchers may not be able to irrigate some of our hay ground or water our cows.
The CSKT Tribe, which has a special Treaty that provides it fishing rights off reservation, filed thousands of water rights claims off the CSKT reservation. The U.S. Supreme Court has determined that this tribe and others who have similar treaty language are entitled to water rights outside of their reservations because their treaties safeguard tribal members’ rights to fish outside of reservation boundaries. Two of these water rights claims are on streams that runs through our ranch. Without the Compact passing Congress, the CSKT Tribe can make a “call”, and we and other farmers and ranchers will lose the use of water that we need to operate.
Doctor’s opinion
Al Olszewski, a medical doctor who is running for governor, opined that the CSKT Compact violated the Montana Constitution. The Montana Supreme Court has already decided that the Compact does comply with the Montana Constitution, so according to the law, he is wrong. Apparently, just as it not a good idea to have an attorney do your knee surgery, it is also not a good idea to have a medical doctor attempt to interpret the law for you.
The Secretary of Interior said in his letter dated Nov. 18, 2019: “Once negotiations were completed, the Federal team brought the proposed CSKT Compact to the Interior and Justice Departments for review and consideration whether to support the Compact. The Department of Interior has evaluated the core concerns and criticisms that have been raised with respect to the Compact and found that these concerns were addressed in the negotiations.”
I agree with Attorney General Barr and Secretary Bernhardt. The CSKT Compact is a negotiated settlement that best resolves multiple issues between the tribe, the state of Montana, the federal government, and Montana’s water users.
U.S. Supreme Court Justice Neil Gorsuch, a Trump nominated justice, recently authored an opinion granting Indians hunting rights off reservation. In 2018, the Court reviewed a Stevens Treaty water right issue out of Washington state that is similar to the legal issue with the CSKT Compact. In that case, the Court upheld the Indians off reservation rights, which caused Washington to pay millions of dollars for culverts. The Supreme Court has not wavered, and in fact it has strengthened the doctrine of law favoring Indian rights when it comes to treaty interpretation and water rights.
Treaty rights
The reality is that Dr. Al and others who are opposing the compact are playing with our livelihoods. Federal ratification of the CSKT Compact would save millions of dollars in litigation expenses for current water rights owners who live in the area bordered by the Yellowstone River, Idaho, Dillon, and Canada. It will save Montana taxpayers the millions of dollars needed to fund decades of adjudication if the compact fails. Those who own water rights will have to pay three times, in that they will have to pay their own attorneys, they will have to pay the state to examine the water rights in the adjudication process, and they will pay the costs to fund the Water Court.
The politicians and individuals who oppose the compact are risking causing destruction to wide swaths of Montana, as a result of towns, cities, farmers, ranchers and other water users no longer being able to use their existing water rights. The compact provides many benefits that adjudication cannot provide. Further, based on the recent U.. Supreme Court case and prior cases in Montana, it is highly likely that the CSKT will prevail on 9,981 instream flow claims filed across Montana, if there is no congressional ratification of CSKT Compact.
Please contact your U.S. senators and let them know that you are standing side by side with Montana’s farmers, ranchers and others who depend on their water rights for their livelihoods to support immediate passage of the CSKT Compact in Congress.
Attorney Hertha L. Lund has worked on policy issues related to agriculture, property rights and water rights for almost 30 years, in Washington D.C., the West and in Montana.
