Water compact is immune from this charge

The Inter Lake has maintained a healthy skepticism of the water compact negotiated with the Confederated Salish and Kootenai Tribes and the U.S. government by the state of Montana.

The amount of money changing hands (all going to the tribes), the unprecedented breadth of the compact, and the state’s willingness to cede its constitutional control of water resources to the tribes have worried us from the start.

Alas, through political shenanigans and legislative chicanery, Senate Bill 262 passed and was signed by Gov. Steve Bullock, putting the ball in the hands of Congress and the tribes.

There has, however, been legal action taken or planned against the water compact, some of which may ultimately better represent the interests of the citizens of Montana than the Legislature did. We certainly hope so.

One of these legal challenges, however, has bothered us from the first time it was aired — in debate before the Montana House of Representatives.

The argument, in short, claims that SB 262 was passed illegally because the state gave itself immunity from suit in the bill, an action which — if true — would require a two-thirds vote in the Legislature.

However, it just isn’t true, and it plainly isn’t true, and the insistence of the compact opponents that it is true makes them lose credibility when they need it most.

The opponents point to two specific passages (on pages 46 and 76) of the bill and claim that therein the state grants itself immunity.

The language on Page 76 has nothing at all to do with the state. Rather that passage grants immunity to “Members of the Board, the Engineer, any Designee, any Water Commissioner appointed pursuant to Section 3-1-114 of this Ordinance, and any Staff.”

Protecting public servants from liability for “damages arising from the lawful discharge of an official duty” is not at all unusual, and it in no way protects the state itself from any potential lawsuit. It merely shields individuals who would probably opt not to serve in public positions were they going to bear the brunt of lawsuits personally.

In some ways, the misinterpretation of the language on Page 46 is even more puzzling because here the state actually partially waives its existing immunity rather than claim any new immunity. Indeed, the very paragraph that is being challenged is titled “Waiver of Immunity.” To prevent any further misunderstanding, a waiver is a voluntary relinquishment of an existing right or claim.

So, in this paragraph, it says, “The Tribes and the State hereby waive their respective immunities from suit, including any defense the State shall have under the Eleventh Amendment of the Constitution of the United States, in order to permit the resolution of disputes under the Compact by the Board, and the appeal or judicial enforcement of Board decisions as provided herein, except that such waivers of sovereign immunity by the Tribes or the State shall not extend to any action for money damages, costs, or attorneys’ fees.”

When a representative of the water-compact opponents was challenged by the Inter Lake to document the claim that the state had granted itself immunity, she said that the exception to the waiver regarding “money damages, costs or attorneys’ fees” amounted to a grant of immunity because it put a “limit” on the waiver.

Well, the bottom line is that in order to waive something you have to already possess it. There is no obligation on the entity which is waiving a right to give it up entirely. It can give it up all or in part, but in either case, it is not creating a new right. The underlying right pre-existed the waiver. Choosing not to waive a right cannot be construed as creating a right.

The Attorney General’s Office, in responding to an earlier lawsuit filed against the water compact, noted in a footnote that, “As the State will soon describe in subsequent briefing, Plaintiffs’ claims that the Compact actually gives the state immunity are fanciful, at best.”

The state’s attorney was being generous when he referred to this unique legal theory as “fanciful.” A more accurate word would be “foolish.”