This West Is OUR West

Montana high court upholds compact

November 09, 2017 at 6:13 pm | By PATRICK REILLY Daily Inter Lake

A complex, controversial water compact between the state and the Confederated Salish and Kootenai Tribes has been upheld by the Montana Supreme Court.

The Flathead Joint Board of Control, a St. Ignatius-based irrigation board, sued the state over its agreement with the tribes – in particular, that the way certain waivers of legal immunity had been approved violated Montana’s Constitution.

The Lake County District Court had previously sided with the Board, but on Wednesday, the Montana Supreme Court reversed that decision.

Tribal attorney John Carter praised the ruling as a win for this long-developing pact. “It upheld the efforts of the state, the tribes, and the United States to negotiate a really complicated body of law rather than litigate it for the next untold number of years.”

The compact – a negotiated agreement between Montana, the federal government, and the tribes quantifying and formalizing the latter’s water use – has drawn no shortage of controversy.

As the Daily Inter Lake reported last year, the state’s hearings on ratification received fierce criticism, largely out of concern for how non-tribal irrigators would be impacted.

And after state Senate Bill 262, ratifying the agreement, passed in April 2015, the Flathead Joint Board of Control filed suit.

Their case focused on two sections of the water compact. In one, the tribes and state waived their immunities from suit, except in actions that sought financial damages or legal costs. The other section stated that members of the state-tribal board overseeing the compact would be immune from suits related to their work.

In the plaintiffs’ view, this violated the Montana Constitution, which states that state and local government entities “shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a vote of each house of the Legislature.”

While Lake County District Court accepted that argument, Chief Justice Mike McGrath did not.

“The new immunities provided there apply only to designated individuals – ‘Members of the Board, the Engineer, and designee, and Water Commissioners...and any Staff,’” he wrote in his opinion.

“The provision on its face does not provide any new immunity to the State of Montana or to any other governmental entity,” he ruled, reversing the District Court’s decision.

The Joint Board of Control’s attorneys could not be reached for comment. Carter said the decision “speaks for itself pretty clearly.”

However, the compact remains a long way from full force.

“The compact still has to be approved by Congress, the tribes and the water court before it can be fully implemented,” Carter explained.

To that end, he thinks the recent Supreme Court decision could be helpful. U.S. Sen. Jon Tester, D-Mont., has introduced a bill to ratify the compact at the federal level. But U.S. Sen. Steve Daines, R-Mont., and Rep. Greg Gianforte, R-Mont., haven’t yet taken a stance on the bill.

“I think that a Supreme Court opinion would give them some peace in their concerns,” Carter said.