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Know the West

The river comes last

 

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.

But Chris Tweeten, the state's lead negotiator, who is running for a seat on the Montana Supreme Court, says politics didn't have much to do with it. "We did it for the good of the state. The stars may not line up like this again and we just had a limited window to get it done."

The "limited window" caused real problems for instream flow advocates. "We never got to see a copy of the compact until it was finished and by then, no changes were allowed," says Bruce Farling, head of Montana Trout Unlimited. "We walked in the card game late, got dealt two deuces, and did our best to protect the fish." Those efforts resulted in a memorandum of understanding that the state, tribe and federal government would develop a streamflow and lake level management plan within a year of the Legislature's ratification of the compact.

The short time frame also caused problems for the federal government's representatives. They refused to endorse either the compact or the memorandum and said the fast track negotiations simply did not provide sufficient time to determine if enough water is available for all the guaranteed appropriations, let alone for instream flows.

The federal government is an important player because the Bureau of Reclamation operates Yellowtail Dam, and it must agree to both the timing and amount of water releases. "We're worried about the feds," says Trout Unlimited's Farling, "because the Bureau of Reclamation is in the consumptive water business, not the instream flow business. Throughout the West, whenever the Bureau has a choice between fish and consumptive use, the fish lose."

Federal negotiators point out that as trustee for the tribe, their primary duty is to make sure that it is the tribe that ultimately decides whether to use its share of the Bighorn's water for irrigation, municipal and industrial needs or for instream flows to maintain the fishery.

A future full of questions

Being asked to trust the future of the Bighorn fishery to a shaky memorandum of understanding in the face of federal opposition was too risky for some. "It's not easy standing in front of a political steamroller, but other tribes have instream flows quantified in their compacts and it should have happened here" said Rep. Bob Raney, D-Livingston, a conservationist and 15-year legislative veteran. "I usually vote with the Indians, but I couldn't support this. Everybody else gets their water first and the river comes last."

Rep. Bill Eggers, D-Crow Agency, an attorney and Crow tribal member, called himself "a lone wolf, a voice in the dark" when he warned fellow state legislators that instream flows are only one of many issues left unresolved. "This agreement leaves way too much hanging in the air. We may be carrying lawyers on our back into the next century over this."

Even Pat Graham, director of Montana's Department of Fish, Wildlife and Parks and part of the administration that negotiated the agreement, cautioned the legislature that the memorandum fails to "adequately protect this wild trout fishery."

Rep. Hal Harper, D-Helena, wanted something better than just the MOU - he wanted language in the compact itself. Although Republican leaders had told him no amendments would be accepted, Harper, a former speaker of the House and well-known fly angler, gave it a shot.

With help from fellow Democrats and a few Republican sportsmen on the House Natural Resource Committee, Harper succeeded. His amendment says: "The Montana Legislature intends that the streamflow and lake level management plan should provide enforceable mechanisms that protect the long-term biological viability of the blue-ribbon, wild trout fishery on the Bighorn River." Like a lone remora on a great white shark, the amendment stuck to the bill as it knifed through the Legislature and across the governor's desk.

The next stop for the compact is the U.S. Congress, which could cast a more critical eye on the agreement. While Harper's amendment expresses legislative intent to protect the fishery, it doesn't specify what flows are actually required. Consensus is that 2,500 to 3,500 cubic feet per second would protect the fishery and Congress could write in those levels before approving the compact and sending it back to the state and tribe. But downstream Wyoming could object in the Congress, since lowering Bighorn Lake to protect the fishery could leave that state's water users dry.

Thanks to heavy snowfall in the mountains, letting water run down the river this year is no problem. But in dry years, there simply may not be enough water to meet all the demands. When that happens, there are no guarantees that sufficient quantities of cold, clean water will remain in the river to keep those fabulous fish healthy and their spawning beds covered.

In this compact, irrigators and other consumptive users of water come first, and the river comes last.

George Ochenski writes in Helena, Mont., and has lobbied the Montana Legislature every other year since 1984, mainly on behalf of public interest groups and Indian tribes.