HELENA — The Montana Attorney General’s office asked a state judge on Wednesday to dismiss a lawsuit intended to stall the Flathead tribal water compact.
Attorney General Tim Fox and deputy attorneys wrote in a letter to the district court in Polson that the complaint against the state brought by a group of irrigators on the Flathead Indian Reservation is frivolous.
The Flathead Joint Board of Control on Monday asked for an “emergency temporary restraining order” to block the governor from signing a water negotiation between the Confederated Salish and Kootenai Tribes and the state and federal governments.
The irrigators claim Senate Bill 262 should require approval from two-thirds of the entire Legislature because it grants the state and a new water board immunity from lawsuits regarding the contentious water compact.
House Republicans made the same argument in the days before the bill passed out of the Legislature on simple majority votes last week. Irrigators who signed the petition spoke against the compact throughout the vetting process.
The attorney general’s office said restraining orders should be reserved “for serious emergencies, not gamesmanship.” The office said the complaint is unmerited because the bill has yet to become law and will likely not be implemented or give anyone claim to injury for years.
Bill sponsor Sen. Chas Vincent, R-Libby, said the water compact does not grant overarching immunities as the irrigators claim it would.
“It is just the opposite of what they’re claiming,” Vincent said. “It is a waiver of immunity so that you could sue the board if you disagreed with what they were doing and you would have a clear path.”
Solicitor General Dale Schowengerdt said in an April 14 email that the compact merely clarifies an immunity the state already retains under the 11th Amendment to the U.S. Constitution. Vincent elaborated that the water negotiation recognizes that law but also says the state has no immunities outside it.
The claim also objects to the compact granting immunity for members of a board that would be created to oversee future water allocations.
Vincent said that that provision protects individual members of the water board from being sued for something that the board does, just as state employees cannot be sued for something that the state government does.
At a meeting of the House Rules Committee on April 15, the Republican-controlled panel decided SB262’s immunity language required two-thirds of each chamber to approve the bill, in accordance with a provision of the Montana Constitution.
“I don’t believe we have the authority to overturn our constitution,” Rep. Mike Miller, R-Helmville, said before voting to require expanded approval.
The committee was overruled by the House of Representatives as a whole later that day and the proposal passed on votes of 53-47.
Each of the six other Montana tribal compacts has included the same language regarding state immunity. Although under no requirement to do so, at least two-thirds of the Legislature endorsed those agreements, the complaint said.
Flathead is Montana’s most water-saturated reservation and the last of seven to settle water use rights with the state. It attracted nearly 20 hours of public testimony and debate this session, with non-tribal irrigators on both sides of the issue.