Some calculations on claims to the Jocko River drainage near Arlee should be completed this summer, a tribal official said last week.
"We have not sat on our hands" during the 2 1/2 years since the last formal talks with federal and state officials was held, said Clayton Matt, head of the tribal Natural Resource Department in Polson.
Chris Tweeten of Helena, chairman of the Montana Reserved Water Rights Compact Commission, said the tribes' effort to quantify its claims has proceeded without involving or informing the state - in contrast to negotiations with other Montana Indian tribes that have led to successful compacts.
But this independent work doesn't necessarily give the Salish and Kootenai Tribes a leg up in the negotiations process, Tweeten said, even if their calculations show that all water on the reservation should be under tribal jurisdiction.
"Under the negotiations process, they can make a calculation and make a claim. But the final decision is not up to either party," he said. It will be the result of a negotiated settlement, or, if all else fails, a court ruling.
Administration of new water rights claims on the Flathead Reservation, which includes much of southern Lake County, a portion of eastern Sanders County and a small part of Missoula County near Evaro, has been at a standstill for six years or so. Previously, the state granted and administered water rights claims for private landowners on the reservation, because most of the arable land and much of the developable land is in private ownership, not tribal hands.
But in a series of decisions, the Montana Supreme Court stopped that practice, ordering the state Department of Natural Resources and Conservation to keep its hands out of water-well permitting on the reservation at least until water uses are quantified across the reservation.
The failure to reach an interim agreement has not, as some predicted, stopped development in Lake County.
Landowners and developers of single-family residences are going ahead and drilling wells for the homes they build and sell, even though they have no state or tribal authority to tap into the groundwater. Subdivision review in the Lake County planning agency is booming, and subdivisions are being permitted without any proof of the right to water - proof that is unavailable in the current administrative limbo.
The situation is more complex for municipalities, which must show some legal authority to use the water in order to obtain financing for water system expansion or improvements. Polson was among the leaders seeking legislative authority for an interim water administration plan, fearing it would not have enough water to supply future growth.
Even so, Polson has relaxed a moratorium on water-main hookups, and despite the failure to reach an interim agreement, the City Council recently approved a major subdivision and annexed the land into the town. This guaranteed that the city would supply water to the development as lots are sold in phases over the next decade. If this requires new water sources, as some believe, just how it will be accomplished is unclear.
"We are disappointed no interim agreement was reached," said Polson Mayor Randy Ingram. "But I don't think we're dead in the water."
He pointed out that Polson has one well that is not functional and could be replaced without seeking a new water-well permit or change permit from any governmental authority, if it can be shown it's in the same aquifer as the existing well. The Legislature granted such authority two years ago, when Charlo had to replace a failed well. The tribal government has not challenged that legislation.
Polson also has water rights on wells that are not pumping at full capacity, Ingram said. Increasing the capacity would not require new permits or claims.
The failure of the interim agreement discussions to produce anything substantial is not all bad, Ingram and others said.
The talks kept the state and tribes actively discussing the water issues on the reservation during a difficult period, Ingram said.
The state Reserved Water Rights Compact Commission is scheduled to go out of business in 2009, and the Flathead Reservation compact is the last item on its to-do list, said commission program manager Susan Cottingham.
The agenda for the commission puts water-rights compacts on the Blackfeet Reservation and on land administered by the U.S. Forest Service ahead of the Flathead Reservation compact, she said. And the commission also must draft legislation for Congress to enact two tribal compacts that have already been approved by the state and the tribes involved.
This leaves little time for the commissioners and staff to devote to the complex and contentious negotiations on the Flathead Reservation.
"We've blocked out staff resources for the Forest Service and Blackfeet, and we hope to have compacts for those two negotiations in 2007," said Tweeten. "Our target for the compact with the Confederated Salish and Kootenai Tribes is for it to be ready to present to the 2009 Legislature."
He insisted that the ambitious agenda was doable, and Matt, of the tribes, agreed.
"The state has made it clear that they plan to sunset the compact commission in 2009. We certainly think that given the right conditions, it can be settled in that time frame," he said.
Both Matt and Tweeten expressed hope that a formal negotiation session between the state, tribal and federal governments could be scheduled sometime later in the year. Tribal Council representatives attended a recent meeting of the commission to express their willingness to continue the talks. But so far there has been no agenda or timetable set for such a meeting.
Meanwhile, people who are not part of the negotiation process are becoming increasingly impatient. Real estate brokers are especially concerned, since they have no ready answer to assure prospective buyers that they have a legal right to a property's water wells.
"It's politics that is holding this up. This could be accomplished if everybody kept the welfare of all the people involved in mind," said Rory Horning, a Polson real estate broker.
Reporter John Stromnes can be reached at 1-800-366-7186 or jstromnes@missoulian.com
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