Advisories & Insights

Montana tribes' decision to develop massive water right impacts downstream users

April, 2007

The Assiniboine and Sioux Indians of the Fort Peck Reservation ("Tribes") in Montana, who have the right to divert more than one million acre-feet per year from the Missouri River, are now looking for non-tribal farmers with the expertise and the equipment to help the Tribes develop that right. The Tribes' water right was quantified in a 1985 compact with the state of Montana, but because the Tribes have not built the necessary infrastructure, they presently use only a small percentage of the water available to them. The Tribes' plan to fully develop their substantial water right, which may be an economic boon for both the Tribes and agriculture in Montana, has downstream users as far away as Missouri worried about the impact that development will have on them.[i]

The Tribes and Their Water Right

The 2.1 million acre Fort Peck Reservation is located in northeastern Montana.[ii] In 1985 the Tribes and the state of Montana entered into a water compact under Montana law that quantified the Tribes' right to divert 1,050,472 acre-feet per year from the Missouri River for any purpose authorized by the Tribes.[iii] The Fort Peck-Montana Compact adjudicated and quantified the Tribes' reserved water rights. The U.S. Supreme Court established the reserved water rights doctrine ("Winters Doctrine") in Winters v. United States,[iv] which held that a federal reservation of public land can carry implied water rights necessary to fulfill the purpose of the reservation. The compact was one of the first state-tribal water right agreements in the nation and, more than two decades later, remains one of the largest quantified tribal water rights.[v]

At present, the Tribes use only about 3% of their water right, due in large measure to the Tribes' lack of money to build the infrastructure needed to put the water to beneficial use.[vi] Most of the agricultural land on the reservation is either fallow or is used for dryland wheat.[vii] The Tribes hope to change that, through a plan to irrigate an initial 15,000 acres to grow higher-value crops, such as potatoes, onions, and carrots.[viii]

The Plan

The Tribes are seeking to finance the $45 million irrigation project through a combination of public and private funds. Once the Tribes build the infrastructure for irrigating an initial 15,000 acres, the land will be leased to non-tribal farming operations. The Tribes hope to have 100,000 acres under irrigation within ten years, and ultimately to expand the irrigation project to 500,000 acres, maximizing the beneficial use of the water right.[ix] The Tribes are negotiating a $22 million loan from KeyBank, and will seek the balance of the funding from the federal government.[x] Federal funding will require Congressional action.

Impacts on Downstream Users

The state of Missouri is keenly interested in the Tribes' plan. As Michael Wells, chief of Water Resources for the Missouri Department of Natural Resources has noted, the Tribes' proposed water use has the potential to impact the amount and timing of water available downstream. The basin is experiencing continuing drought conditions, and "everyone is ultra sensitive right now about low flows on the Missouri River."[xi]

The Missouri River is approximately 2,340 miles long, and there are ten states and twenty-eight Indian tribes in the Missouri River basin.[xii] The state of Missouri, which is at the southern reach of the river, is the last user of water from the Missouri before it enters the Mississippi River not far upstream from St. Louis.[xiii]

Other downriver users of the Missouri include barge operators transporting grain and other goods from Canada and the northern United States.[xiv] During low water conditions, the barge industry is forced to scale back its operations.[xv] Opposition by barge operators and other industry groups may make the Tribes' efforts to have legislation passed that would provide them with federal funding for the irrigation project politically difficult.[xvi]

The Tribes expect that downstream users will oppose their project, but they, along with the state of Montana, disagree that the Tribes' development of its water right will result in shortages downstream. They point out that when the water right compact was negotiated, the needs of downstream users were taken into account.[xvii]

Conclusion

This project has the potential to lead to significant development of agriculture in northeastern Montana, and demonstrated the potential for private parties with capital or expertise to co-venture with tribes for the use and development of tribal natural resources. However, it also demonstrates the practical challenges of applying federal reserved water rights, even where that right has been adjudicated and quantified.

For more information about this article, or tribal environmental issues, contact Connie Sue Martin.