One Hand Clapping

You’ve got to feel sorry for Debby Barrett. She just can’t get no respect.

Barrett, who is (a) President of the Montana Senate and (b) just to be clear, not me, is all bent out of shape by the fact that proponents of the Flathead water compact have asked the legislature not to amend the agreement and to ratify it as is. Writing in the Missoulian she claims that this request – to not amend - is arrogant, disrespectful and “an insult to the constitutional role of the Legislature.” This is simply ridiculous.

Back when the 1979 Legislature formed the Reserved Water Rights Compact Commission, it recognized that in attempting to adjudicate all the water rights in the state, it was inevitable that Federal and tribal claims would come into sharp conflict with the state based claims of Montana’s farmers, ranchers, businesses and households. And rather than consigning those conflicting claims to endless, costly and divisive litigation, the Legislature told the commission to go out, sit at the table with tribes and Federal agencies, and come back with negotiated settlements. I’ll say it again: the Legislature explicitly wanted negotiated settlements.

What the Legislature presumably understood, and Barrett apparently does not, is that a negotiated settlement is a voluntary agreement between two or more parties. Opening up a settlement and changing its terms can only happen if all the parties agree to make it so; it simply can’t be changed unilaterally from one side of the table. That’s a fact the Legislature must face: it can amend the compact if it wants, but if it does, there’s no longer a voluntary agreement. Barrett, and other compact opponents, apparently want the impossible: an agreement that only they will agree to! It’s sort of like one hand clapping.

Barrett claims that “other proposed compacts have not been thrust on …the Legislature with such arrogance and disrespect.” You’re damned if you do and you’re damned if you don’t agree with this claim, but suffice it to say that the commission has always informed the Legislature that if a proposed compact were amended, there would be no guarantee - and certainly no requirement - that the amended settlement would be accepted by the other parties. That is simply reality, and there is nothing arrogant or disrespectful about pointing it out.

Even if it can’t, or shouldn’t, amend the compact, it is important to remember that the Legislature has played an active role in its negotiation. Four legislators, including Barrett (and, full disclosure, me) serve on the compact commission and have had ample opportunity to contribute constructively to the settlement. And for the past two years, the Water Policy Interim Committee has conducted numerous hearings on and studies of the compact and made recommendations to the commission for changes that have largely been incorporated into the agreement.

Barrett also claims – and this canard is popular with other opponents – that the CSKT are “threatening” the state with litigation if the compact is not approved. And indeed, the Tribes will file claims in the Water Court and pursue those claims if compact ratification fails. But let’s get this straight: it was the state that invited the CSKT to the table in order to avoid the litigation that the Tribes would otherwise, by law, have had to pursue in order to have their water rights adjudicated. The state cannot now walk away from the settlement reached at that table and complain that it is being threatened when the CSKT resort to the only remedy available to them.

Barrett resents the fact that she has been presented with what she thinks is a “take it or leave it” deal. But the irony is that that is apparently exactly what Barrett and other compact opponents intend – arrogantly and disrespectfully - to offer to the Tribes: a compact which they have amended to their liking and which the Tribes are apparently expected to agree to without consultation, question or legal recourse.