CSKT Compact Vote Unconstitutional

This is clearly a victory for the irrigators represented by the FJBC

By Jerry Laskody

In April of 2015, the Flathead Joint Board of Control (FJBC) filed a complaint in Montana’s 20th Judicial District disputing the legality of the Montana Legislature’s vote passing SB262, the CSKT Water Compact Bill. The FJBC contended that since SB262 conferred immunity from lawsuit on the state for monetary damages, court costs, and attorney fees, it required a two-thirds majority of both houses of the legislature per Article II Section 18 of the Montana Constitution. Neither house complied. The issues was heatedly discussed in the House and after assurances from the Attorney General’s Office that all was well, with a simple majority, the 53 members of House violated the state Constitution and passed SB262 53-47.

On Monday, July 18, 2016, Judge Manley ruled that SB262 did indeed confer new immunity on the state and therefore required a two-thirds majority vote. Thus members of both houses of the Legislature violated the provisions of the State Constitution.

This is clearly a victory for the irrigators represented by the FJBC. Further, the Compact itself is full of Constitutional violations. As the saying goes “There’s plenty more where that came from!” So it is highly likely that more litigation, focused on the dtate’s lack of protection for all its citizens and their property rights, looms in the future.

It is my understanding that Judge Manley discussed the issue of severability and ruled that the offending clause could be severed from the compact, leaving the rest of the compact in place. I would expect that the “severing action” would have to take place in the Legislature since this is a revision to SB262 as originally presented to the lawmakers. It is interesting to note that during the 2015 legislative deliberations, compact proponents were adamant that no amendments to the SB262 would be allowed. I guess that position will have to change in light of Judge Manley’s ruling.

 Jerry Laskody, commissioner, FJBC
St. Ignatius

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