Judge rules against compact provision

A Lake County judge on Monday sided with opponents of the Confederated Salish and Kootenai Tribes’ water compact, finding that a provision in the controversial agreement granted the state a new legal immunity and should have required a two-thirds vote to pass the Montana Legislature.

One of the most hotly contested issues taken up by the 2015 Legislature, the water compact is a negotiated settlement among the state, the tribes and the federal government intended to settle the tribes’ water rights and avoid potentially costly litigation in Montana Water Court.

In his decision on the Flathead Joint Board of Control’s challenge to the agreement, District Judge Jim Manley voided a portion of the law that would have shielded the state government from legal liability for the actions of state officials implementing the compact.

“This is not a close call,” Manley wrote. “The provision creates a new sovereign immunity for the state, and for its agents or employees. The conclusion is clear by resort to either facial interpretation or legislative history.”

In April 2015, the Montana Legislature passed the bill ratifying the compact at the state level by less than a two-thirds vote, and Gov. Steve Bullock then signed it into law.

The Montana Constitution requires a two-thirds majority of legislators in both houses to pass bills that extend the state’s legal immunities.

The Flathead Joint Board of Control, which represents many of the irrigators living on the Flathead Indian Reservation, filed suit against the state shortly after the bill’s passage.

The board’s legal arguments echoed concerns voiced by state representatives as the compact wound through the Legislature last year. In a flurry of procedural maneuvers prior to its passage, a slim majority of the House had voted to overrule decisions by House Speaker Austin Knudsen, R-Culbertson, and the House Rules Committee that would have tied the bill’s passage to a two-thirds vote.

Manley noted that the rest of the compact statute still stands as state law. Language within the compact allows the immunity provision to be severed from the rest of the statute if it is found unconstitutional.

In an email sent Wednesday afternoon, a spokesman for Montana Attorney General Tim Fox said his office was still reviewing the decision, but didn’t expect it would have a significant impact on the compact.

“We respectfully disagree with the court’s conclusion on the constitutionality of the immunity provision and will be considering the state’s options,” spokesman John Barnes said.

Barnes also noted that the judge had granted part of the state’s motion on a separate challenge by the group of irrigators, in which Manley determined it was not an extension of the state’s immunity.

On that argument, he found that rather than granting a new immunity to the state, the other provision simply limits language in which the state waives some of its legal immunity.  

However, the other part of Manley’s ruling aligns with vocal state representatives and residents of Western Montana who have argued the compact violated the state Constitution since before its passage.

In his ruling, Manley cited both the bill’s language and the legislative deliberations prior to passage. He referred to the plaintiff’s arguments quoting Rep. Jeff Essman, R-Billings, who had attempted to amend the compact ratification bill to remove the state from the immunity provision.

“This language, I fear, can be argued to create an immunity from lawsuit for actions for money damages, costs or attorney’s fees. That is why I felt a two-thirds vote was necessary,” Essman said in 2015, as quoted in the ruling. “The injured party needs to have redress against the state of Montana for the damages of the taking that’s occurred.”

During the Legislature’s lengthy committee hearings and floor debates on the compact, supporters of the bill successfully blocked any amendments to the bill, arguing that any change after the three-party settlement had been negotiated would require the state, tribes and federal government to return to the bargaining table.

Barnes didn’t comment on whether the removal of the legal immunity language would have that impact on the bill. It is currently awaiting further action following its May introduction in the U.S. Senate.

The compact still awaits ratification at the federal and tribal levels before it can be fully implemented as a decree of the state Water Court.

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