By Cory Swanson
In water law, the most important thing is getting your water.
Montana’s Senator Steve Daines has introduced the Montana Water Rights Protection Act (MWRPA) to provide federal settlement of the water rights claims of the Confederated Salish and Kootenai Tribes (CSKT). Without this legislation, Montana will face years of expensive litigation and uncertainty in trying to resolve these claims, and will assuredly reach a worse conclusion.
This is due to the undeniable fact that in water law, a settlement allows you to structure protection for junior water rights in a way that a trial does not. And make no mistake, the junior water rights being protected by this settlement are the non-Tribal water rights. To put it in blunt terms, the non-Tribal farmers and ranchers, both on and off the Reservation, have the most to gain from this settlement, and the most to lose from litigation.
Al Olszewski, a physician who is running for Governor, has attacked the MWPRA with a variety of false claims, in an apparently hopeless bid to keep alive the one issue which motivates his Gubernatorial campaign. The Doctor’s prescription is worse than the disease.
First, Al is wrong that this bill grants off-Reservation rights to the CSKT across Western Montana. The bill actually requires the Tribes to give up over 97% of their off-Reservation claims, and almost all of the remaining claims are co-owned by the State. Without the Daines legislation, irrigators across Western Montana will be forced to go back through the (already decades overdue) Water Court adjudication, pay their water lawyers again, and risk losing priority to a Tribal water right that the CSKT had already agreed to dismiss.
The second false attack is that this law takes away over 36,000 acres of State Land within the Reservation. No, the federal settlement allows the exchange of 36,808 acres that are currently in a scattered patchwork across the Reservation, to be exchanged for an equivalent acreage of Federal land outside the Reservation. The exchange only proceeds if the Montana Land Board approves it, just like it does for every land banking exchange.
Think about the benefits of this exchange. Montana could give up scattered and already-logged lands across the Reservation in order to gain consolidated timbered Federal lands to add to its forestry program. My home town of Townsend just saw the temporary closure of RY Timber because we can’t get enough timber off federal lands. We would love to see the addition of 36,000 acres of forest land into the State Land Trust, where we know we can get a timber sale and bring back some jobs.
Dr. Al has more false attacks on the MWRPA, which are all incorrect, and which you can see for yourselves if you contact Senator Daines’ office. But let me leave you with what this settlement actually accomplishes.
This settlement resolves the last remaining Tribal water rights claims in Montana. This settlement guarantees irrigation water rights at historic levels to irrigators on the Flathead Reservation. This settlement provides funds to repair a massive irrigation canal system that is falling apart. And this settlement eliminates thousands of off-Reservation water rights claims across Western Montana, so that every irrigator who has gone through the adjudication can rest easy with his or her water rights.
One of the worst ideas I have heard in a long time is Dr. Al’s plan to remove $55 million from the 2015 Legislation and use it to fight Tribal claims in Water Court. That money was appropriated to install accurate measuring devices across the irrigation project to guarantee farmers received their historic deliveries.
Let that sink in for a minute. A wealthy doctor, who does not have to struggle to make a living from agriculture, wants to take $55 million away from ensuring irrigators get their historic water deliveries. And he wants to give it to a pack of lawyers to fight against a bunch of water right claims that the Tribes have already agreed to dismiss forever. Besides being illegal, it is entirely self-defeating.
For the critics of this legislation, the most important thing is carrying on an inflammatory argument for the sake of a losing political campaign. For the irrigators, the most important thing is getting their water. I am thankful Senator Daines sides with the irrigators.
Cory Swanson is the Broadwater County Attorney.
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