The Flathead Joint Board of Control (FJBC) for the 128,242-acre irrigation project on the Confederated Salish and Kootenai (CSKT) Reservation filed suit against the State of Montana to void the vote on the water compact. The suit is based upon language in the compact concerning waivers of Immunity. Lawsuits were expected because hearings revealed potential constitutional and state law violations. Therefore language was placed in the compact to exempt the state and other entities from having to pay damages, costs and attorney fees resulting from implementing the compact.
Article 2 Sec. 18 of the Montana Constitution states: “The state, counties, cities, towns and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a two-third vote of each house of the legislature.” The vote on the compact in the House was 53 to 47, passed by just 3 votes. Depriving citizens of the right to legally protect their property is a very serious issue and therefore requires a super majority vote.
The State of Montana through the Attorney General’s Office filed a motion to dismiss the FJBC lawsuit. One of the main arguments offered by the State was that the state was not implementing the compact even though it had authorized $3,000,000 and spent money toward that end. In his decision, Judge Manley wrote, “that argument raises the real-world situation of the State going forward with costly implementation, and an indefinite period of uncertainty for Plaintiffs and other water users, absent Court determination of these and other issues.” Because of this and other reasons the state’s motion to dismiss was denied. If there is a positive decision for FJBC on the lawsuit, the state may appeal the decision to the Montana Supreme Court. It’s difficult to fight your government.
Why do Governor Steve Bullock and Attorney General Tim Fox support a compact that costs $55 million and adversely affects 300,000 people in 11 counties in Western Montana? It can’t be the CSKT threat of filing 10,000 water claims all over the State of Montana because this threat has no basis. The Hell Gate Treaty is used, but it does not mention water rights and actually forbids activity that would depreciate off- reservation property. Article VIII states: “The Confederated Tribes of Indians acknowledge their dependence upon the Government of the United States, and promise to be friendly with all citizens thereof, and pledge themselves to commit no depredations upon the property of such citizens.” Off reservation water rights are a blatant violation of article VIII because it depreciates the value of land because of the uncertainty of not having water.
Legislators from eastern Montana who supported the compact to avoid the threat of the tribe filing 10,000 water claims now have the “war on coal” and the tribe filed those water claims all over the state anyway. It’s not clear whether Steve Bullock and Tim Fox will fight for Montana citizens against this tribal or federal government overreach.
Verdell Jackson
Former state senator, Flathead County