The river comes last

  • Bighorn Canyon National Recreation Area

    Map by Diane Sylvain
  • Clara Nomee, chairwoman of the Crow Tribe

    George Schunk photo
  • John Chaffin, an attorney for the Department of the Interior

    George Schunk photo
 

Deep in the Wyoming wilderness and high above tree line, glacial cirques collect and funnel pure alpine waters from Cloud Peak's 13,000-foot summit down to the muddy torrent of the Bighorn River. Draining north into Montana, the river transects the Crow Indian reservation, where it is joined by the Little Bighorn, famous as the site of "Custer's Last Stand." Finally, the Bighorn merges with the Yellowstone just downstream from Pompey's Pillar, a rock formation that bears the carved initials from the 1805 Lewis and Clark expedition.

Much has changed since Lewis and Clark crossed the uncharted wilderness that was to become Montana. Crow Indians still speak the language of their ancestors, but the thundering buffalo herds that once formed the center of their "wheel of life" have vanished. And the "furious and formidable" plains grizzlies that terrified the Corps of Discovery are gone, their remnants driven into remote mountain ranges.

Even the Bighorn itself has changed. Nearly half of the islands and gravel bars that once filled the river's braided channels are gone, their riparian habitat lost to Yellowtail Dam's regulated outflows. But in exchange, cold, clear water pouring from the depths of the 70-mile-long reservoir has created one of the finest wild trout fisheries in the world.

Where buffalo calves once drank from a plains stream, drift boats packed with fly anglers now compete for trout that commonly exceed 4 pounds. With up to 7,000 catchable browns and rainbows per mile, it is no wonder this productive waterway hosts more than 100,000 angler days a year. This activity generates $18 million annually in an area where, as one local legislator put it, "the economy sucks." In a state ravaged by boom and bust industries and ranked at the bottom nationally in wages and per capita income, the fishery offers a welcome and much needed form of sustainable economic activity.

Given the world-class status of the fishery and the economic value to the state, it would seem an obvious public policy goal to protect this resource. So why did Montana's Legislature recently ratify a water compact with the Crow Nation that doesn't protect the Bighorn's fish? The answer, like the compact itself, is complex.

A "miracle" agreement

Montana, like most Western states, wrestles with who owns what water and whether "paper rights' correlate with actual use and availability. This is important because those with water rights get to take a certain amount of water from the river, lake or ground and use it for irrigating crops or for a wide variety of industrial and domestic purposes. Collectively, these activities are known as "consumptive use" and they sometimes suck rivers dry.

The opposite of "consumptive use" is "instream flows," which means leaving water in the streams for the fish. While some consider this a waste of good water and a luxury arid lands cannot afford, it is increasingly common to view a healthy river and fishery as a value worth protecting. Under the Crow Compact, all valid, existing consumptive water rights are guaranteed, yet no instream flow rights protect the Bighorn's trout.

The promise to honor all existing water rights was probably enough to garner the votes necessary to ratify the compact, and other agreements addressing long-standing disputes "sweetened the pot" for compact supporters.

One side deal settles a major Crow lawsuit against the state. For 20 years, the tribe has sought hundreds of millions in compensation for what it believes was illegal state taxation of Crow coal. In the out-of-court settlement, the state agrees to pay the tribe $15 million over 15 years and promises not to tax Crow coal in the future. The tribe, besides dropping the lawsuit, agrees to use the payments for economic development and water and sewer infrastructure on the reservation.

Another side agreement could settle a long-standing contention that the federal government did not enforce limits on how much reservation land could be owned by non-Indians. If everything goes as planned, the tribe will get a share of hydroelectric revenues from Yellowtail Dam that it will use to buy back non-Indian lands within reservation boundaries.

"I believe in miracles," said Clara Nomee, Madame Chairman of the Crow tribe, "and putting the compact together in 8 months was a miracle. Negotiating solutions to any one of these issues usually takes years, not months."

Fish dealt a bad hand

Some, however, think the short time frame had more to do with political term limits than miracles. The governor, attorney general and most of Montana's legislative leaders have held office for much of the last decade and are now "termed out."

In a state where the "Indian vote" can sway an election, having a role in a major negotiated tribal settlement can help candidates running for a new office. In addition, Nomee has been under federal investigation for possible misuse of tribal funds, and a popular settlement won't hurt her, either.

High Country News Classifieds
  • MEMBERSHIP MANAGER
    For more information visit www. wyofile.com/careers/
  • THRIVING LOCAL HEALTH FOOD STORE FOR SALE
    Turn-key business opportunity. Successful well established business with room to grow. Excellent highway visibility.
  • DEVELOPMENT DIRECTOR
    For more information, visit www.wyofile.com/careers/
  • SONORAN INSTITUTE, CEO
    Chief Executive Officer Tucson, Arizona ABOUT SONORAN INSTITUTE Since 1990, the Sonoran Institute has brought together diverse interests to successfully forge effective and enduring conservation...
  • STAFF ATTORNEY
    STAFF ATTORNEY POSITION OPENING www.westernlaw.org/about-us/clinic-interns-careers The Western Environmental Law Center (WELC) is a high-impact, nonprofit public interest environmental law firm with a 27-year legacy using...
  • PROJECT MANAGER
    Position Summary Join our Team at the New Mexico Land Conservancy! We're seeking a Project Manager who will work to protect land and water across...
  • SEEKING PROPERTY FOR BISON HERD
    Seeking additional properties for a herd of 1,000 AUM minimum. Interested in partnering with landowners looking to engage in commercial and/or conservation bison ranching. Location...
  • DIRECTOR OF PRODUCT AND MARKETING
    High Country News seeks a Director of Product and Marketing to join our senior team during an exciting chapter of innovation and growth. This individual...
  • OUTREACH DIRECTOR
    Upper Missouri Waterkeeper seeks an Outreach Director to play a key role designing and leading activities and initiatives that engage citizens in water resource decisionmaking,...
  • WILDLIFE HAVEN
    Beautiful acreage with Teton Creek flowing through it. Springs and ponds, lots of trees, moose and deer. Property has barn. Easy access. approx. 33 acres.
  • ARIZONA CONSERVATION CORPS PROGRAM DIRECTOR
    Arizona Conservation Corps is seeking a Program Director in Flagstaff or Tucson
  • COPPER STAIN: ASARCO'S LEGACY IN EL PASO
    Tales from scores of ex-employees unearth the human costs of an economy that runs on copper.
  • EXPERT LAND STEWART
    Available for site conservator, property manager. View resume at http://skills.ojadigital.net.
  • CONSERVATIONIST? IRRIGABLE LAND?
    Stellar seed-saving NGO is available to serious partner. Package must include financial support. Details: http://seeds.ojaidigital.net.
  • CANYONLANDS FIELD INSTITUTE
    Colorado Plateau Natural & Human History Field Seminars. Lodge, river, hiking options. Small groups, guest experts.
  • WESTERN NATIVE SEED
    Specializing in native seeds and seed mixes for western states.
  • CHUCK BURR'S CULTUREQUAKE.COM BLOG
    Change will happen when we see a new way of living. Thinking to save the world.
  • COMING TO TUCSON?
    Popular vacation house, furnished, 2 bed/1 bath, yard, dog-friendly. Lee at [email protected] or 520-791-9246.
  • OJO CALIENTE COMMERCIAL VENTURE
    Outstanding location near the world famous Ojo Caliente Mineral Spring Resort. Classic adobe Mercantile complete w/living quarters, separate 6 unit B&B, metal building and spacious...