Fox Asks Judge to Dismiss Irrigators’ Water Compact Challenge

Attorney General Tim Fox and deputy attorneys wrote a letter to the district court in Polson

By ALISON NOON, Associated Press

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 and should be denied.

The Flathead Joint Board of Control on Monday asked for an emergency temporary restraining order to block the governor from signing on to a water deal between the Confederated Salish and Kootenai Tribes and the state and federal governments.

The irrigators say 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.

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 a claim that they were hurt by the deal for years.

Bill sponsor Sen. Chas Vincent, R-Libby, said the water compact does not grant legal immunity to the water board 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 a form of legal immunity the state already has under the 11th Amendment to the U.S. Constitution. Vincent said the water deal recognizes that law but also says the state has no immunities outside it.

An organization of farmers and ranchers who support the compact said Wednesday that their wishes have been ignored by the eight of 12 Flathead Joint Board of Control members who oppose the deal.

“It is a travesty that the FJBC seems to be overrun by a vocal minority who do not seem to care if they throw me, agriculture within the Flathead Indian Reservation and all of Montana’s agriculture under the bus for their uninformed legal theories,” Paul Guenzler, one of the board members who supports the compact, said in a news release Wednesday.

The Flathead Joint Board of Control also objects to the compact granting legal immunity to members of a board that would be created to oversee future water allocations. Vincent said 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 a vote of 53-47.

Each of the six other Montana tribal compacts has included the same language regarding the state’s legal immunity. The complaint said at least two-thirds of the Legislature endorsed those agreements, although the Legislature was under no requirement to do so.

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