WSP03082

• File Number: 8064
• Description: Section "D" General Federal Issues/Policies - Indian Water Rights
• Date: 4/19/1985
• Title: Final Report of Tribal Negotiating Team to Fort Peck Tribal Executive Board of Fort Peck-Montana Water Compact
• Water Supply Pro - Doc Type: Report/Study

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(51 that larger diversions (in excess of 4,000
acre-feet per year and 5.5 cubic feet per second
of water) will not:

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( i)

substantially impair the quality of water
for existing uses in the source of supply;

(ii) be made where low quality water can
economically be used and is legally and
physically av~~lable to the Tribes for the
proposed use;

(iii) create or substantially contribute to
saline seep; or

(ivl substantially injure fish or wildlife
populations in the source of supply.

The State wished to impose these and additional
standards on tribal water marketing outside the Reservation
because similar standards are contained in state law. The
tribal negotiating team pointed out that state law may well
become more liberal in the future, and resisted any state law
restrictions on the Tribes' federally protected right to market
water. In the end, the tribal negotiating team agreed to the

(Footnote Continued)
its inc~usion in the Compact as adding little if anything to
settled law. For example, a transfer of water that
significantly adversely affects the environment may already be
subject tn federal law constraints, such as the National
Environmental Policy Act, 42 U.5.C. 4321 et ~.; see Davis v.
Morton, 469 F. 2d 593 (lOth Cir. 1972).

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40The tribal negotiating team pointed out to the
Commission in March 1985 when this provision was circulated by
the Commission, that the Compact's legal exclusion of
lower-quality ground water from the Tribes' marketing authority
meant that the only source legally available to the Tribes was
the Missouri River, a relatively high quality source. The
tribal negotiating team thus suggested that this provision be
deleted as inapplicable. The Commission agreed that the
provision certainly would not be read to bar tribal marketing
in the Missouri River mainstem, but was nonetheless desired by
the Commission because of a facially similar provision in the
State's water marketing legislation. Since the mainstem
Missouri River is the only source "legally available" to the
Tribes for any proposed use served by water marketing, there
will not be any circumstances where this provision could
operate in practice to restrict marketing.

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