Nora Mabie
Missoulian
A recent ad campaign encourages people to challenge the Flathead Indian Reservation’s water compact, despite its approval at tribal, state and federal levels.
The Confederated Salish and Kootenai Tribal Council, Montana Legislature, U.S. Congress and President Donald Trump each have ratified the CSKT Water Compact. And in 2021, U.S. Secretary of Interior Deb Haaland signed it.
The Compact resolves the tribes’ water rights claims and establishes a joint state-tribal system for administering water rights on the reservation. More than a decade of negotiations went into its drafting.
An organization called Equal Water Rights took out full-page ads in several Montana newspapers encouraging people to submit objections to the Montana Water Court regarding the Compact. The same organization has funded similar billboards throughout the Flathead Reservation.
The ad campaign has raised concern for some. If Congress, the Legislature and tribal council ratified the Compact and the Interior secretary signed it, what is left for debate? Where does the Compact stand? And is it at risk?
Who’s behind these ads?
The ads were paid for by Bill & Irene LLC, which is filed with the state as a “foreign limited liability company,” meaning it conducts business in a state other than the one it was originally registered. Bill & Irene LLC lists a Polson P.O. box but has a New Mexico mailing address filed with the state.
William Sego, a former New Mexico state senator, owns the company, which he said is “very well-funded.” Sego said he owns a ranch in St. Ignatius, and the goal of the ad campaign is to keep his water rights.
“I spent a lot of money researching this,” Sego said. “I don’t like what I see has happened to the Legislature and to Congress. And I’m in a position where I’m going to fight for my water.”
When asked how his company is funded, Sego declined to answer.
The ad calls the Compact “overreaching,” alleges it will bring “uncertainty” and criticizes it for off-reservation water rights provisions. The ad also appeals to colonization.
“The availability of public water convinced thousands of people to move west to settle down and build farms, ranches, towns and schools,” the ad states. “These hard-working people suffered through tough times,” it continues. “Now when life is better, they shouldn’t be losing their water rights, some over 150 years old. It was the American Dream.”
When asked about these lines, Sego said, “People are very happy to see that.”
What’s the status of the Compact?
Robert McDonald, Compact implementation officer for the tribes, said the concerns outlined in the ad “have been vetted.”
“(Then U.S. Attorney General) Bill Barr traveled to meet with the (CSKT) council,” McDonald said. “(Sen. Steve) Daines and (Sen. Jon) Tester both did negotiations to find the best path forward for the entire community.”
The ad states that the Compact is “up for approval by the Montana Water Court,” which is true.
In 1979, the Montana Legislature established the Montana Water Court, which has exclusive jurisdiction over the adjudication of water rights claims. While other entities ratified the Compact, the Water Court still must approve it so details of the Compact may be incorporated into a decree. This process is especially important in times of shortage, so people know who should turn off their water and who can use water in certain amounts.
As is customary, when the court issued a preliminary decree, it mailed a notice to people who will be impacted by the Compact. And as in the case for all compacts, the notice informs residents of the Compact, its provisions and outlines the process for submitting objections. In this instance, the court alerted people that they can submit objections to its preliminary decree by Dec. 6.
McDonald said what’s happening now with the notices and objection deadline is standard.
“Every compact has gone through this process,” McDonald said. “It’s simply part of the process. The unintended consequences are that it’s being used by opponents.”
What will objections mean for the Compact?
The Equal Water Rights ad campaign focuses on the Water Court’s objection process, urging people to submit their objections before the deadline.
Michelle Bryan is a natural resources and environmental law professor at University of Montana. She said it’s important to understand that the Water Court process differs from the legislative process. When the Compact was before the Montana Legislature, Bryan said, members of the public had the opportunity to weigh in on the Compact and influence lawmakers.
Now that the Compact is before the Water Court, however, Bryan said the process is different. The court’s job is to apply the law, so not everyone is entitled to object to the Compact.
“They need to show that they have an interest in the water in that basin that would be affected by the Compact,” Bryan explained, adding that in the case of a compact, the court would be looking for things like fraud or something “very unreasonable” during objections.
“When you’ve got a good-faith, arms-length negotiation, which took place here between the state of Montana, federal government and tribes over decades, I think it would be very hard to show this was a bad-faith negotiation,” she said. “All parties were represented by attorneys. It went through the Legislature twice, so there’s been so much process getting it to the end result that I think it would be very difficult for the Water Court to reject the Compact.”
Bryan, whose research includes water rights and the protection of sacred waters, said that to her knowledge, no Montana compact that has gone through the Water Court has been rejected, in part, she suspects, because compacts involve thorough processes.
Bryan said if there are objections the court is interested in, the court may hold a hearing. Ultimately, the court will issue a final decree, which can be appealed by the Montana Supreme Court, though Bryan said she is not aware of any compact decree that’s been modified by the state Supreme Court.
Controversy
This particular compact has been highly contentious.
The Montana Human Rights Network in 2015 published a report that claims opposition to the Compact “lies in a coalition of right-wing and anti-government activists and entities that have come together to stoke fear, anger and paranoia, along with providing much misinformation.”
Bryan said she is unaware of any other tribal compact or compact with the federal government in Montana that received “this degree of opposition.” The Blackfeet and Crow tribes have both completed similar water compacts.
“This is, in my view, the most opposed compact that’s come out of the Montana compacting process,” she said. “At each stage, there has been really strong political opposition.”
McDonald said he’s heard from some people who saw the ads and grew concerned about the status of the Compact.
“Cryptic messages hinting at possible threats do raise questions in general,” he said. “But that’s a tactic that’s pretty familiar at this point with the Compact.”
This article was first published in the Missoulian.