Gone Fishing

One of the features of the Confederated Salish and Kootenai Tribes water compact that’s guaranteed to rile up compact opponents (case in point: Verdell Jackson) is its recognition of tribal rights to in-stream flows on rivers outside the boundaries of the Flathead Reservation. The Tribes’ “off-reservation” claims derive from the Hellgate Treaty, which, in establishing the reservation, also recognized the right of tribal members to “taking fish in all usual and accustomed places...” Courts have ruled that the right to “take fish” means more than just the right to go fishing; it should actually be possible to catch fish. And tribes have argued that if they have a right to actually catch fish, they also have a right to enough water in streams to assure the fish will be there. So since historically the Salish and Kootenai usually fished all over the western half of the state (take a look at the map below), they now claim in-stream flow rights to maintain fisheries well beyond the current reservation boundaries.

All that may seem pretty cut and dried, but now we have former senator Verdell Jackson, arguing in a Great Falls Tribune piece that the Hellgate Treaty, rather than validating off-reservation rights, actually “forbids” them!  Jackson reaches this rather novel conclusion based on his reading of Article I of the treaty, which he thinks means that the Tribes, when they gave up their claims on land outside the reservation, gave up their rights to hunt and fish there as well. This is, in a word, nonsense. Tribal rights to hunt and fish off reservations are robust and have been repeatedly upheld by the courts.

If there is any grey area here, it concerns whether an off-reservation fishing right necessarily implies an off-reservation in-stream flow water right as well. The US Supreme Court has never ruled on this point, but lower courts have, with some denying, and others recognizing, such in-stream rights. Jackson has this all wrong too, when he claims that no off-reservation in-stream rights have ever been recognized in “Montana or any other state.” Whatever the case, from the point of view of the Compact Commission, it was far better to agree to a limited number of off-reservation rights, with little expected impact on other water users, than to throw the state into a protracted legal battle over the many off-reservation claims that Tribes would file in the absence of a settlement.

Jackson asks how anyone who has sworn to uphold the U.S. and Montana constitutions can support a compact that gives the Tribes “authority over rivers that affect 330,000 people in 11 counties in Western Montana.” Well, he has nothing to worry about. All the compact does is give the Tribes rights to non-consumptive use of the water from these rivers – rights that cannot be changed, leased or sold and that are no different than the thousands of other water rights held by individuals all across the state. They confer the right of use but no “authority” or control over rivers and the water in them.  Water in Montana belongs to the state and it is the state that has the authority to manage it. That's what the Montana Constitution says, and nothing in the CSKT compact alters that fact.

Banana Republic

As Paul Krugman points out in a post this week, whether or not you are enjoying the current slump in oil prices depends pretty much on where you live, and it's a lesson Austin Knudsen really ought take to heart.

Krugman is a smart guy, but let's face it, this is not rocket science. For most of the world – the part that doesn’t produce and sell the stuff - cheaper oil means lower fuel costs for families and businesses. Wages go farther, profits grow, and it’s all good.*

On the other hand, for the producers – these days we think of Russia, the Bakken, the Tar Sands, OPEC and so forth – declining prices can hurt pretty badly, with just how badly depending on how dependent the economy is on oil production. Krugman offers as a case in point Texas, back in the mid-1980s. At that point about 5% of Texas’s total economic output was attributable to oil production. Then, as now, the economy was recovering from what at the time was the worst recession on record since the Great Depression. Then, as now, the national unemployment rate, while still high, was drifting steadily downward. And then, but even more so than now, there was a sudden, sharp decline in oil prices; in the first six months of 1986, the West Texas Intermediate spot price fell by 58%, from $26 to $11 per barrel.**

The result, for Texas, was very, very bad. Here’s Krugman’s chart, which shows that in 1986, as the US economy was recovering, the unemployment rate in Texas rocketed up, going from well below to well above the national average, where it stayed for several years.

You might think about all this when you read this Missoulian report on the Republican agenda for the 2015 legislative session. According to Austin Knudsen, who Republicans in the House have tapped for Speaker, more resource extraction is at the top of his party’s wish list, apparently because it will create “long-term new wealth.”

This is pretty standard stuff. Republicans, and a few of my fellow Democrats as well, have been saying for years that Montana is a “natural resource state” and that we can secure our economic future by digging up the ground and cutting down trees. But think about it: is placing all our eggs in the one basket of natural resource extraction really all that smart? Should we really, like Texas in 1986, rely for our prosperity on the notorious vagaries of international oil markets?  Should we really invest heavily in digging up and exporting more coal when our biggest potential customer apparently intends to import less of it? Should we blithely assume the world is going to keep on burning the fossil fuels we’re selling, consequences be damned? Does anyone really believe that in a world economy driven by incomprehensibly rapid change in technology and scientific knowledge, sustainable “long-term new wealth” is going to be found in natural resource extraction?

Speaker Knutsen comes from the oil patch, so his sympathies, and those of his party for the well-being of the oil companies that bankroll it, are easily understood. They make Montana sound like a 19^th. century colonial economy, the kind controlled by foreign corporations and local elites with the sole purpose of sending oil or copper or coffee or something off to a hungry imperial power. But come on: If we really care about Montana’s future, can’t we come up with a better vision for it than as a latter day banana republic?

*Well, mostly good. If people respond to lower fuel prices by burning more of the stuff, then we have a problem. Fortunately, in the short run at any rate, that tends not to happen; the demand for oil, as economists like to say, is inelastic.

** For a very useful site for tracking historic crude oil prices, click here.

Bring It!

Sen. Roger Webb popped up in the Missoulian this week, trotting out the usual litany of Republican shibboleths about the EPA’s Clean Power Plan. He says the plan, which will reduce carbon emissions from electrical generation by about 15 percent between now and 2030, is going to cost us an arm and a leg.* It’s going to devastate Montana’s economy. It’s going to drive the price of electricity through the roof.  It’s going to have no significant effect on emissions. It’s…well, you know the drill.  And as you also know if you’ve read my previous posts responding to Steve Daines, Rick Hill, Glenn Opel, Arnold Olsen and Keith Regier, and Bob Lake on this point, there’s not much new here, and it’s probably not worth plowing old ground to show, once again, how wrong headed it all is.

But Webb, who is in line to chair the Montana Senate Energy Committee, does say something that sticks out like a sore thumb. It's this: “Climate change is certainly a problem that we must tackle, but the solution to this problem must be at a cost we can afford… Republicans would prefer to...solve climate change… by focusing on making coal-fired electricity generation even cleaner than it is today”.

For most of us, the idea that “climate change is certainly a problem we must tackle” is hardly a revelation, but for a Montana Republican to acknowledge that fact is almost unheard of. Webb says something here that Daines and Hill and all those other guys just haven’t been able to bring themselves to say. As far as I can see, that’s progress.

But let’s take it up a notch.

If Webb is really serious about wanting cost effective measures to arrest climate change, he should stop attacking the Clean Power Plan and get down to business. Because the plan itself is designed to allow states to figure out how they want to reduce emissions. It doesn’t mandate solar, or wind, or end-use efficiency, or clean coal technology, or nuclear. It says that states can meet emissions reductions targets however they want, using any mix of strategies they chose, working in compacts with other states if that’s to their advantage, and employing cap and trade systems or carbon taxes if they think that will work.

In short, the plan gives states the flexibility to identify and implement the least costly strategy for reducing emissions, and that is what Webb says he wants. If Republicans really believe that the cheapest way to reduce emissions is to make “coal fired electricity generation even cleaner than it is today,” here’s their chance to prove it.

It’s not going to be easy: earlier this year Count on Coal Montana was telling us that carbon capture and storage at power plants is going to be very, very expensive. Now, apparently, it’s the source of our salvation. I guess we’ll just have to see. But whatever they do, Republicans should just bring it. They should stop this incessant whining about the Clean Power Plan and start using it to prove, if that's possible, that they can actually do something about the climate crisis.

* The Clean Power Plan is usually described as reducing emissions from the electrical generating sector by 30 percent between 2005 and 2030. But since half that reduction has already been achieved (for reasons other than the plan itself), we have about a 15 percent reduction to deal with going forward.