Rights and Wrongs

If there’s one thing that opponents of the Flathead water compact seem resolutely convinced of it’s that the compact takes private water rights away from individuals without compensation. And if there’s one thing that gets those same opponents really riled up, it’s telling them that this "takings" business is, in a word, bogus.

After all, for more than a few enemies of the compact, including some of my legislative colleagues, taking water rights is the tip of the iceberg.  Just below the surface they have discovered there’s a grand conspiracy afoot, in which the Tribes or the Federal government or the United Nations or Agenda 21 or the New World Order (occasionally aided and abetted by Space Aliens) plan to take over all the water and all the land in Western Montana, and send the people of the Flathead Valley off to live in cities somewhere. So these takings are a big deal, and to deny they exist is to be complicit in the great take-over scheme.

I became aware of all this recently when I wrote, in a letter to the Missoulian, that the compact doesn’t take anyone’s water rights, and if opponents wanted to make a claim to the contrary, they should cite the specific provisions of the compact that supposedly allow that to happen.* So far, there have been three letters to the Missoulian trying to do just that, all of which miss the mark by a wide margin.

For example, in his contribution to this debate, Bobby Carrol, who lives in St. Regis, cited the language in the compact in which the state and the Tribes waive their sovereign immunity from suit. These waivers are intended to protect the right of individuals to appeal water management decisions in court, but Carrol manages to construe it as “the state of Montana, counties, cities and citizens…giving up their rights not to be sued by ‘anyone,’ including the United Nations.”  Even if that were true, which it isn’t, how Carrol can equate waiving immunity with taking water rights is incomprehensible.

Perennial compact gadfly Christopher Chavasse didn’t even try to find a provision in the compact that might support his position. Instead he provided a lengthy quote from conservative columnist Thomas Sowell, to the effect that liberals generally make their arguments without reference to the facts. To this canard from Sowell Chavasse adds the oddly phrased comment, “Instantly me thinks of the Reserved Water Rights Compact of the Confederated Salish and Kootenai Tribes. What say you to that, Dick Barrett? Flack away.” Forget about the silly implied syllogism (Sowell says liberals ignore the facts, Barrett is a liberal, therefore Barrett ignores the facts): If Chavasse can’t produce any evidence – any evidence at all – that the compact takes water rights, then can't we safely conclude it doesn’t?

Finally, Boyd Frame quotes language from the Water Use Agreement in which the Flathead Joint Board of Control and the United States waive their claims on the water right for the Flathead Indian Irrigation Project.

What gave rise to the provision Frame cites was the fact that the Board, the US, and the Tribes had all asserted colorable claims to the same project water right.  Because these conflicting claims had not been adjudicated, none of the parties possessed that right, and ultimately their conflicting claims could only be resolved in the Water Court, either through litigation or a negotiated settlement. In this case, the parties reached a settlement in which the Board gave up its claim in exchange for a substantial financial commitment by the state to make more water available for irrigation, and for the Tribes’ commitment to significant limitations on the exercise of their senior in-stream flow rights. The Board had a claim on the project water right, but didn’t have the right itself, and it voluntarily relinquished that claim; it was not taken. The fact that some of the irrigators the Board represents didn’t like the deal does not change that fact.  Ultimately disputes among irrigators led to the dissolution of the Board, and now it remains to be seen how the conflicting claims on the project water will be resolved, and how irrigators will be protected.

So, so much for what the compact doesn't do. What it does do is clarify and quantify the various water rights of the Tribes. In most cases, the Tribes’ rights are senior to those of other water users and that fact – that somebody has rights senior to their own – has a lot of people worried, and thinking their rights have been taken. It’s not true: the rights are still in place, but their holders have always been subject to the condition that other users with rights senior to theirs can “make call” on them; if there isn’t enough water to go around seniors get all the water to which they are entitled before the juniors get a drop. This is a simple fact of life and matter of law for junior water users throughout Montana, on the reservations and off, and the compact has nothing to do with it.

On the contrary: in the compact the Tribes have agreed not to make call on almost all of their existing junior neighbors; in the remaining cases, they have agreed to significant limitations on their ability to make call. In fact, protecting existing, state based water uses has always been the primary objective of the Commission. Opponents of the compact should try to get their heads around that fact.

* My letter was a response to an earlier one from Michael Gale, in which he accused the Reserved Water Rights Compact Commission, on which I sit, not only of ripping off people’s property, but also of graft, deceit and manipulation (Gale is nothing if not thorough in his calumnies). You can read Gale’s letter here, and my response here.