I am surprised and disappointed in Montana Sen. Jon Tester’s recent “introduction” of the Confederated Salish and Kootenai Tribes Water Compact to Congress on May 26 (S. 3013). The CSKT Compact is currently in litigation where the constitutionality of the Legislature’s vote for it in 2015 (SB 262) is being challenged. In other words, the CSKT Compact is in legal limbo.
But the senator’s actions reveal something more troublesome, and that is the willingness to skip over the required state-based legal and legislative processes using the heavy hand of the federal government. Tester’s myth that serious state constitutional issues at stake in this compact or the current litigation can be resolved by a few “tweaks” in a federal committee shows a disregard for the rule of law and existing processes required in the state of Montana. It also demonstrates that Tester actually represents only a very small constituency from our great state.
The Montana Land and Water Alliance informed the entire Montana congressional delegation, several other key congressional committee chairs, and the Secretary of the Interior of the legal status of the CSKT Compact in early February of this year. In our written correspondence, we further advised each party of the additional legal and constitutional issues that plague the compact and why they would likely be litigated before the compact was ready for congressional review.
The legal question on the compact in court right now regards the constitutionality of the Legislature’s 2015 vote on SB 262 and whether it required a two-thirds vote in each house. But consider that the compact also violates Article II Section 4 (equal protection) and Section 17 (due process of law); Article V Section 12 (the Legislature); Article VIII (the Judiciary); and Article IX (Environment and Natural Resources). If the CSKT compact survives this first legal challenge, there are currently several “ripe” constitutional issues for litigation.
The Montana Constitution, like the U.S. Constitution, is not a “menu” to choose from, it operates as a cohesive document for governance. In the case of the CSKT Compact, the initial violation of Article IX – delegating the state’s constitutional authority for water ownership and management to an unaccountable, essentially federal entity – led to violations of the legislative and judicial articles of Montana’s constitution. These issues are not resolvable by federal “tweaks” and can only be resolved here in Montana.
Tester’s action also leaps over the already introduced Blackfeet Tribe settlement and others across the country, which is longer in the making than the CSKT Compact. Tester also increases the CSKT’s federal taxpayer price tag from $1.2 billion to $2.3 billion dollars. In this era of $18 trillion dollar debts, it was already going to be hard to find the $400 million dollars for the Blackfeet Compact.
Finally, as a political gesture timed right before the June 7 primary election, it was shrewd but transparent. But this premature action says more about integrity of the senator than his political maneuvering skills.
Catherine Vandemoer, chair
Montana Land and Water Alliance
Polson