We didn’t really need a judge to tell us the “immunity” clause pertaining to the “Flathead Reservation Water Management Board” created by the Confederated Salish and Kootenai Tribes’ water compact violated the Montana Constitution; anyone with eyes to see could see it. In the words of Judge Manley, “This was not a close call. The conclusion is clear by resort to either facial interpretation or legislative history.”
Interestingly, both the tribes and the state argued in this case that “the Board is not a political subdivision of the state” and therefore Art. II Sec. 18, the constitutional provision in question, did not apply. That is astonishing to me because by making such an argument, the state is acknowledging that the compact places tax paying state citizens under the “exclusive” authority of an autonomous board for the administration and control of their water rights … and does so even while its own constitution mandates a state duty to “provide for the administration, control, and regulation of water rights.” (Art. IX Sec. 3)
Manley is correct on another point: “This controversy is broader than the limited scope of this lawsuit.” It certainly is. There are numerous other constitutional issues within SB 262, not the least of which is the “Flathead Reservation Water Management Board” itself. One could rightfully conclude that the Legislature, by assuming that it legally passed SB 262, unconstitutionally granted “immunity from suit” to an unconstitutional board in an unconstitutional “Law of Administration,” that unconstitutionally requires the consent of a “sovereign government” to become “state law.”
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