by Dr. Ed Berry
Since they began their criticism of the CSKT Water Compact, opponents have made claims that are factually not true. Their problem is they cannot read a legal document. Here is a case in point.
In their Cause DV-15-73 filed on April 20, 2015, in the Lake County District Court, they claim the Compact grants immunity to the State of Montana. On that incorrect assumption, they claim the Compact required a 2/3 vote in the Montana Senate and House for ratification.
Here is the paragraph their complaint quotes from page 48 of the Compact:
8. Waiver of Immunity. The Tribes and the State hereby waive their respective immunities from suit, including any defense the State shall have under the Eleventh Amendment of the Constitution of the United States, in order to permit the resolution of disputes under the Compact by the Board, and the appeal or judicial enforcement of Board decisions as provided herein, except that such waivers of sovereign immunity by the Tribes or the State shall not extend to any action for money damages, costs, or attorneys’ fees. The Parties recognize that only Congress can waive the immunity of the United States and that the participation of the United States in the proceedings of the Board shall be governed by Federal law, including 43 U.S.C. 666.
They claim this paragraph grants the State immunity. They are wrong. It is a waiver of immunity, not a grant of immunity. The Compact did not require a 2/3 vote.
They claim the phrase,
“except that such waivers of sovereign immunity by the Tribes or the State shall not extend to any action for money damages, costs, or attorneys’ fees.”
gives the State more immunity than it presently has. This phrase is only a limitation of the waiver. It does not grant any immunity the State does not already have.
Many claims against the Compact are because opponents can’t read the Compact document. They also have wasted money on incompetent lawyers.
Now, read the rebuttal by Attorney Hertha Lund to the delusional claims by Catherine Vandemoer regarding this lawsuit: Catherine Vandemoer’s flawed legal analyses.