The proposed Flathead water compact can proceed toward settlement with the U.S. government, while Montana employees and board members can be held liable for possible damages under the contentious water rights agreement, according to a Lake County district court judge.
Judge James Manley issued partial summary judgments July 18 that sided with the State of Montana and Confederated Salish and Kootenai Tribes on the Flathead Indian Reservation, while also ruling in favor of opponents regarding one aspect of the water compact.
Manley agreed with a group of irrigators who said a provision in the compact violated the Montana Constitution because it provided immunity to the state, or its agents or employees, without a two-thirds vote in the 2015 Montana Legislature.
Yet the judge also determined that the provision can be removed from the water compact without voiding the entire agreement, which aims to permanently settle the tribes’ water rights and is currently seeking congressional approval in Washington, D.C.
“Right now the state does not see Judge Manley’s ruling having any real impact on the compact,” John Barnes, director of communications with the Montana Attorney General’s Office, said.
“While he did find a specific immunity provision unconstitutional, he agreed with the state that even if it is, it can go away and the rest of the compact stands.”
Both parties have 60 days to appeal Manley’s ruling.
The plaintiffs, who are irrigators in the Mission Valley, have alleged that the water compact would cause harm to their property interests and water rights.
Bruce Fredrickson, the Kalispell attorney representing the plaintiffs — the Flathead Joint Board of Control, Jerry Laskody, Boone Cole, Tim Orr, Ted Heins, Bruce White, Shane Orien, Wayne Blevins and Gene Posivio — said they were still evaluating Manley’s ruling.
“No decisions have been made at this point. We’re evaluating the opinion and the options we might have,” Fredrickson said.
At first glance, the CSKT were content with Manley’s ruling, according to Rob McDonald, communications director for the tribes.
“Obviously, we will need to take an in-depth look at the order and applicable law to determine whether any further action is warranted, but we do not anticipate any at this time,” McDonald stated. “Nothing in this ruling appears to impede the Compact, its ratification by the Tribes and the United States, or its ultimate implementation. Judge Manley appears to have crafted an order that preserves the state of the law in Montana while honoring the intentions of the parties and ensuring certainty to thousands of water users across Montana. (Monday’s) decision is a testament to the hard work of the parties in negotiating a fair and robust framework for water use on the Flathead Reservation and the State of Montana.”
As Manley stated in his ruling, “This controversy is broader than the limited scope of this lawsuit.”
Debated and negotiated for decades, the water compact reached the forefront of the Montana Legislature in the 2015 session. Among the many controversial aspects of the proposed deal, the provision granting immunity to the state and its employees was heavily debated. Proponents argued that the Water Management Board, a new commission created under the compact, was protected from possible legal recourse, along with engineers and other state staff members who were carrying out their duties under the water compact.
Republican House Speaker Austin Knudsen ruled that the immunity clause required a two-thirds vote of each legislative house for approval. The decision went to the House Rules Committee, which agreed with Knudsen.
On April 15, 2015, the House voted 53-48 to overrule Knudsen and the House Rules Committee’s determination. The following day, the House voted 53-47 to pass Senate Bill 262, which approved the water compact after nearly 20 cumulative hours of testimony and debate.
“I feel vindicated that the court found that I ruled correctly, and I knew that I did,” Knudsen told the Beacon on July 22. “I knew I was on sound legal footing.”
Knudsen said he pushed for the decision to go before the House Rules Committee because the discussions would be logged on the record, which would make it eligible for a lawsuit, such as the one Manley ruled on earlier this week. He said he knew the House would most likely overturn his ruling.
“I think it’s indicative of the process and unfortunately the abuse that went on, the abuse of the legislative process to get that bill passed,” he said.
“Unfortunately, we’ve got a bill that was quite a complicated piece of legislation that was pushed through via, what I think, were abused means through the legislative process.”
Knudsen said he did not believe Manley’s ruling would impact the water compact’s fate.
“With that provision struck out, I don’t think the compact lives or dies by that provision,” he said.
“There’s always a possibility for it to be readdressed (in the Legislature). Do I think that’s going to happen? I would be very surprised. I’d be surprised if it came up,” he said. “I’d be more surprised if there were enough votes to do something about it.”
U.S. Sen. Jon Tester, D-Mont., introduced legislation in May seeking to ratify the CSKT water compact. In late June, Alletta Belin, senior counsel to the deputy secretary of the Interior, told the Senate Committee on Indian Affairs that the $2.3 billion cost of the bill is “a significantly higher price tag than any enacted water settlement to date.” The Department of Interior “cannot support the bill as introduced,” Belin said. Yet Belin added that the administration supported coming to a final result and reaching a final settlement.