Judge won't dismiss compact suit lawsuit

A Lake County district judge has ruled against the state of Montana’s motion to dismiss a lawsuit challenging the implementation of the water rights compact for the Confederated Salish and Kootenai Tribes.

The suit was launched by the Flathead Joint Board of Control shortly after the Legislature in April passed Senate Bill 262, which ratified the controversial agreement at the state level.

The suit alleges that the bill effectively granted new legal immunities to the state, which would require approval by two-thirds of the Legislature’s two houses rather than the simple majority that voted in favor of the compact in April. Gov. Steve Bullock signed the compact into law on April 24.

In his Dec. 2 order, Judge James Manley wrote that a provision in the law appears to create immunities for state employees or appointees and may contradict a waiver of immunity also contained in the compact.

While the state’s motion to dismiss argued that those immunities already existed under state statute, Manley wrote that the state misconstrued the law, comparing it to an “insurance policy” for lawsuits rather than immunity from them.

“This statute does not give the state immunity from monitory damages from such suits,” Manley held. “It does just the opposite: It recognizes and affirms that the state is legally accountable for such acts of such agents.”

Manley opted not to rule on the plaintiff’s assertion that another provision in the compact created new immunity, but said that the state may have been correct in that portion of its motion to dismiss the claim.

The board had argued that the provision, which waives the tribes’ and state’s immunities from lawsuits, actually granted new immunities for monetary damages and attorney’s fees.

Manley disagreed, saying that the language in question appeared to only be a limitation on that waiver.

Manley also noted that because the state’s motion does not require the plaintiffs to prove they are likely to succeed, his order does not address that likelihood.

“The court is guided by the policy that in this state, perhaps unlike developing federal law, the doors to the courthouse should be open to the public as a forum for their serious disputes,” he wrote. “The state’s motion seeks to close the courthouse doors to these plaintiffs.”

The compact still awaits ratification by the tribes and U.S. Congress, but will not be introduced at the federal level until a still-pending water compact for the Blackfeet Tribe receives approval.

The last-minute budget passed by the Legislature appropriated $3 million to begin early implementation of some portions of the agreement. If the compact is ultimately ratified by all parties, it will obligate the state to an additional $52 million.

Reporter Sam Wilson can be reached at 758-4407 or by email at swilson@dailyinterlake.com.