by Mike Dennison – MTN News
HELENA – A state judge Wednesday struck down a portion of state water-rights compact with the Confederated Salish and Kootenai Tribes, but let the rest of the controversial agreement stand.
District Judge James Manley of Polson said a paragraph in the compact is unconstitutional, because it improperly grants legal immunity to a new board that would administer water rights on the Flathead Indian Reservation in western Montana.
Yet Manley also said this unconstitutional paragraph can be “severed” from the lengthy compact, allowing the rest of it to stand.
“The unconstitutional immunity provision can be voided without voiding the entire statute,” Manley wrote. “This immunity provision does not appear to be central or pivotal in the overall compact scheme.”
Manley ruled on a lawsuit filed in April 2015 by local irrigators opposed to the compact. Their suit had asked him to invalidate the entire compact, because it didn’t get super-majority approval by the 2015 Legislature.
The Montana constitution says the state, or its agents, cannot be granted immunity from lawsuits without approval from two-thirds of both the House and Senate.
The compact bill passed by relatively narrow margins in 2015 and did not get a two-thirds approval.
An attorney for the irrigators said they're reviewing the decision and will decide later how to respond.
Tribal officials said Thursday they're content with the ruling, which doesn't appear to impede the compact or its ultimate ratification or 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,” said tribal spokesman Rob McDonald. “Yesterday’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.
A spokesman for Attorney General Tim Fox also said the ruling “won’t have any real impact on the water compact,” but that the Justice Department disagrees with the ruling and is considering its legal options.
The compact, one of the most contentious issues before the 2015 Legislature, quantifies and settles the water rights of the tribes, which had negotiated those rights with the state for more than a decade.
It gives the tribes rights to the water flowing into the Flathead Irrigation Project, which serves nearly 130,000 acres. However, the tribes said water-users on the reservation would not be negatively affected by the compact and would continue to receive the water they need.
The compact also requires the state and the federal government to spend millions of dollars to upgrade the Irrigation Project, and creates a special board, whose members are appointed by the state and the tribe, to administer water rights on the reservation.
Legal immunity for the board and its agents is at the center of the legal dispute.
During the Legislature, House Speaker Austin Knudsen, R-Culbertson – an opponent of the compact – said the immunity provision meant the compact required a two-thirds vote, which would have killed the bill.
A majority of House members overruled him on the floor of the House, however, and then approved the bill by a 53-47 margin.
Gov. Steve Bullock later signed the bill to enact the compact, which still needs approval by Congress and the tribes.
Six days after the House approved the bill, the Flathead Joint Board of Control, which oversees the irrigation project, and several of its members who oppose the compact filed suit, saying the bill needed two-thirds approval.
In the lawsuit, the state and the tribes argued that the board is not a political subdivision of the state and that the compact didn’t create a new grant of immunity.
Manley disagreed, saying the paragraph on the board’s immunity created new immunity for the state and its agents and employees: “This is not a close call.” This new grant of immunity requires approval by at least two-thirds of each house of the Legislature, he said.
Yet he agreed with the state’s and tribes’ contention that if the provision is unconstitutional, it can be stricken and then “severed” from the compact, leaving the rest of the document to stand.
Photo courtesy of USDA NRCS