As the deadline approaches to file objections to water rights claims outlined in the Confederated Salish and Kootenai Tribes-Montana Water Compact, some local officials are considering the impact of the landmark agreement.
Mineral County Assistant District Attorney Wally Congdon, for example, believes there is reason to object.
Congdon, an attorney with many years of experience in water law cases, chaired a public meeting at the Sanders County Commissioners Chambers on Thursday, November 3, where he lobbied individuals and the county itself to raise objections. The gathering brought together several dozen people as attendees lined the walls and watched from the door.
The compact between the Confederate Salish and Kootenai tribes, the state of Montana, and the United States regulated water rights claims in western Montana. Republican US Senator Steve Daines introduced the Montana Water Rights Protection Act to Congress in 2019, and a year later it was signed into law by former President Donald Trump.
Home Secretary Deb Haaland ratified the compact on September 17, 2021, paving the way for the establishment of the Flathead Reservation Water Management Board, a new body tasked with managing water rights on the reservation.
Although the water board has been in session since last January, the compact itself is awaiting a final decision from the Montana Water Court. The water court has a deadline of December 6 to appeal.
Congdon believes parts of the compact are objectionable, and at the meeting two weeks ago he warned that most western Montana residents, cities and counties should pay attention to the issue.
Congdon made several sweeping claims, including an argument centered on water quality requirements. If the water quality needs to be improved, he told the crowd, either the source of the pollution needs to be removed or more water is needed to dilute the water sources. This could result in neighbors having to regulate water quality rights among themselves, Congdon claimed.
Since the tribe’s water rights date back to either 1855 or time immemorial, they would have the longest-standing water rights. CSKT’s historic areas included all of western Montana and extended into portions of Idaho, British Columbia and Wyoming. The Hellgate Treaty of 1855 established the Flathead Reservation, but during the land grants that began in 1904, over half a million acres were removed from tribal holdings. The treaty established the CSKT’s right to water, which is recognized in the Covenant. In Montana, water rights are first in time, first in right.
Congdon also claimed that the Montana Water Rights Protection Act makes changes not known or authorized by the state legislature. He referred to this as “legislating by the blind”.
The meeting revolved around a map highlighting areas where tribal water rights had been filed, and while Congdon acknowledged the tribe’s intention to drop some of them, he said it was unclear what would happen to the rights after final ratification would happen.
The CSKT originally filed over 10,000 claims from the reservation, but in exchange for ratifying the covenant, the tribes settled on 211 rights on the reservation, 10 off-reservation and joint ownership of 58 other water rights with the US
After the Dec. 6 deadline, the Montana Water Court will consider some of the objections to the tribe’s water rights, Cogndon said. He insisted that people object and hire lawyers who, like him, handle water rights and even hand over the paperwork.
During the public comment, participants urged Sanders County to file objections to the pact. Although members of the Sanders County Commission were present, they did not include the issue on their official agenda.
Some inflammatory remarks were made.
“Welcome to 1961; I hope you enjoy the drinking fountains,” Congdon said to the crowd.
At one point he attempted to discredit tribal sovereignty and lapsed into a lengthy metaphor he dubbed “marketing.”
Robert McDonald, a former communications director at CSKT who now works in CSKT’s natural resources department as a compact implementation officer, offered a different perspective.
“Until the Nixon administration, federal policy regarding tribal peoples was an ending,” he wrote in an email.
“Nixon ushered in the era of self-determination with the Indian Self-Determination Act of 1975. This was a policy shift to enable tribal nations to take more control of their governments, self-govern and administer their own people, programs and policies,” he wrote.
In fact, CSKT describes itself as “People with vision,” McDonald said.
McDonald pointed out that since its inception, the pact had met with many years of organized resistance.
A document entitled Know the Facts, published on the website of US Senator John Tester, an early supporter of the pact, lists a number of problems solved by the agreement. Top of the list: “Avoid costly litigation for taxpayers and the tribes.” The document also notes that the settlement “does not limit future water lawsuits outside of the reservation in northwest Montana.”
St. Ignatius resident David Passieri, who filmed the gathering and has spoken at similar gatherings in the past, addressed the Sanders County crowd.
Though vague on details, Passieri said there were third parties from abroad who would soon come forward and were involved in the fight against the CSKT pact.
“The plan is to take this to the US Supreme Court,” said Passieri, who is filing an appeal with the water court.
Previously, Congdon was the civil attorney for Lake County, where he worked with Lake County commissioners to create a presentation similar to that shown in Sanders County before the Covenant was ratified.
Lake County Commissioner for District 3 Gale Decker said Lake County’s main complaint is the Montana Water Rights Protection Act.
Although Decker thought there was a chance that other counties would object, as Congdon suggests, he thought Lake County’s objections would only cover arguments already made by other counties. He speculated that Ravalli, Mineral, and Sanders counties could object to the compact, and they would cover Lake County’s grievances in doing so.
The 1979 Legislature created the Montana Water Court to expedite and facilitate nationwide adjudication of more than 219,000 state-law water rights, including claims to Native American and federal reserved water rights.
The water court operates on a similar level to a district court. The water court has exclusive jurisdiction to rule on water rights claims, which is unique among U.S. states, said Stephen Brown, assistant water judge at the Montana Water Court.
“The CSKT Compact isn’t the first Compact we’ve developed,” Brown said. “In general, a contract is a water rights settlement.”
The Water Court recently issued an interim decree for the pact, and that began a period when people can object to the pact, Brown said.
The Water Court has overseen contracts for the Blackfeet, Crow, and Fort Peck reservations. The CSKT’s compact is the most detailed regulation of tribal water rights in Montana to date, Brown said, but it’s not the only one that addresses off-reservation water rights.
If there is no objection relating to the validity of the pact, the Water Board will proceed with the pact and issue a final order. The water court will proceed with its decision pool by pool, Brown said.
“Anyone who has concerns can appeal,” he added.