State must resist tribes' lawsuit

By all means, Montana Attorney General Tim Fox should engage in a lawsuit filed by the Confederated Salish and Kootenai Tribes in federal court over water rights on the Flathead Reservation.

The lawsuit is a brazen move aimed at getting the federal courts involved in Montana water law while also seeking to claim ownership of water rights currently held by landowners who irrigate about 2,000 farms and ranches on the reservation through the tribally owned infrastructure of the Flathead Irrigation Project.

An attorney — representing irrigators, tribal members and non-members alike — recently requested that Fox officially intervene in the case on behalf of his clients, who are of the belief that they own their water rights under protection of Montana water law.

That alone is enough for Fox to be involved, because it constitutes a threat to fundamental rights of Montanans. But it is not the only or most significant reason.

The lawsuit also seeks to enjoin a state District Court and the Montana Water Court from determining three water-rights cases that are before them because the tribes “would prefer to have rights issues in which they are interested decided by the federal courts.”

That is a direct challenge to the state courts’ constitutional authority to adjudicate those cases. If for no other reason, Fox should be obligated to at least offer a defense on behalf of those jurisdictions.

The implications of abdicating Montana water law to the jurisdiction of federal courts are staggering.

Observers point out that much of what the lawsuit seeks to accomplish is also contained in a proposed water-rights compact for the Confederated Salish and Kootenai Tribes that failed to win approval of the Montana Legislature last year.

Part of the compact called a water-use agreement involved transferring water rights from irrigators to the tribes, which in turn intended to allocate water back to the irrigators. But in some cases, the allocations would involve less water than the irrigators currently use.

There have been recent discussions in Helena about reopening negotiations pertaining to the water-use agreement and its water allocations.

With this lawsuit now in the picture, irrigators are understandably no less opposed to having their water rights “transferred.”

“This compact and the water-use agreement is a takeaway of the water we’re already getting and I don’t understand why we’re even having the discussion,” one irrigator told an interim legislative panel that is studying the water-use agreement. “I’m not willing to give my water right to anybody.”

That type of view is hardly new in the West, and it needs to be acknowledged by Montana’s attorney general.

Editorials represent the majority opinion of the Daily Inter Lake’s editorial board.