Water Rights and Wrongs

Over the past few years I have heard sworn enemies of the CSKT compact trot out enough misinformation, mendacity, ignorance, paranoia, calumny, and illogic to last me a life time, and sometimes I wish there were a booby prize for the worst offender. If there were, I figure that Ken Miller would definitely be in the running, at least if his screed in the Missoulian last week is any indication.

Miller, who served in the Montana Senate, chaired the Republican Party and ran, unsuccessfully, for governor, has managed to convince himself, and is trying to convince us, that approving the compact will be the biggest disaster since statehood – comparable, in fact, to electric deregulation. Indeed, he finds the parallels between deregulation and the compact “astonishing.”

Both, he says, were “pushed” by the Federal government.

Both are rife with the potential for corruption: the Bonneville Power Administration, he claims, stands to make big bucks when the Federal government controls the water used to run its dams. So it was with Enron after deregulation, and we know where that got us!

And sadly, both are pigs in a poke. We didn’t know what we were getting when we bought into deregulation, and we know almost nothing about what we’ll be getting if we buy into this compact. All we do know, Miller thinks, is that it will give control over “most of the water in western Montana” to the Federal government.

It’s hard to read this drivel and not conclude that Miller has never even skimmed through the compact, let alone actually read it. If he had, or if he had paid any attention at all to the countless presentations of the compact commission and its staff, he would know that it is the state of Montana that has aggressively and successfully pushed for the completion of water compacts with tribes and Federal government agencies.

If he’d read the compact, he would know that it assigns to the Federal government absolutely no water right that can be used to divert water from Montana users to the BPA – absolutely none.

If he understood the compact, he would know that off the reservation all it gives to the Tribes (or the Federal government in trust for the Tribes, if you insist) is a handful of minimal in-stream flow rights, many of which cannot be currently exercised or are duplicative of existing rights and therefore have no practical effect. Some confer, at most, the ability to make call on a limited number of junior users during very low water years* How Miller thinks the Federal government can parlay rights like that into “control” of “most of the water in western Montana” is a pure mystery.

Miller claims that “without a determination of the amount of water in the compact” the governor, the attorney general and the commission are “literally asking legislators to say yes to a blank check” that will give the Federal government “control of the abundant waters in western Montana.” Oops, wrong again! With the exception of a few de minimis uses (water for traditional religious observations, for example), all the water rights recognized in the compact are explicitly quantified; that happens in all those pages of abstracts that compact opponents endlessly whine about having to read. There are no blank checks. Nobody gets “control” over water, whatever that means.

And so it goes. But here’s the thing: Ken Miller is obviously free to say whatever he wants about the compact, however misinformed and distorted that may be. But if he wants anybody to take him seriously as a public figure whose views should be respected, he ought to take responsibility for the coherence and integrity of the opinions he expresses.

* “Making call” in this context means telling users with a lower priority date that they have to stop taking water out of the stream so that minimal in-stream flows can be maintained. The idea is to protect fisheries, which is something the Tribes are very interested in (and presumably a lot of other people are as well).