by Dr. Ed Berry, also posted in The Daily Inter Lake of November 29
Jerry O’Neil (October 20) asked two questions of Governor Bullock, Attorney General Fox, Congressman Zinke, Senator Vincent, Rep. Perry of HD 3, and me.
His questions, the first by implication, are: Is the Water Compact constitutional? How does the Compact affect recreational water rights?
Jerry O’Neil uses the word “smart.” Smart means don’t play lawyer if you are not a lawyer. Since I am not a lawyer, I will answer O’Neil’s constitutional question using the logic of a physicist. The same analysis applies to opponent’s interpretations of the Hellgate Treaty.
Many Compact opponents believe their every complaint against the Compact is a reason to reject the Compact. This is wrong. To be a reason to reject the Compact, opponents must show Montana would be better served without the Compact than with the Compact. No opponent ever accomplished this hurdle.
Some Compact opponents argued, because they “believe” the Compact is unconstitutional, therefore, we must reject the Compact. This argument fails because they did not consider the risk that their belief may be wrong.
The professional water compact attorneys advised two things. First, only the court can determine whether the Compact is constitutional. Second, based upon their professional review, they predict the court will rule the Compact is constitutional. This is evidence the opponents’ belief may be wrong.
Had opponents successfully rejected the Compact based upon their belief the Compact is unconstitutional, then they would have deprived all Montanans of the benefits of the Compact without ever knowing if their belief is true. This is unethical.
Opponents’ proper and ethical action was to first ratify the Compact to assure Montanans will receive the Compact benefits in case opponents are wrong. Then opponents can try to prove their case in court.
Compact experts advise me that recreation uses instream flow water. The Compact gives the tribes instream flow rights but does not give them jurisdiction over recreational use of the water.